By Levi Munyeri*
A common sight in criminal courts is a sole prosecutor sitting on one end of the courtroom facing a quiver of seasoned defence lawyers, ready to attack any evidence or argument that is leveled against their clients. This scene is more pronounced in trials of multiple accused persons. In a trial of ten accused persons, you are likely to find at least ten defence lawyers in the courtroom. Even before delving into the merits of the case, a numerical advantage in favour of the defence is apparent.
A recent decision of the Court of Appeal offers the Prosecution the much-needed breakthrough to battle the defence. In Joseph Lendrix Waswa v Republic  (the Waswa Case) the Court of Appeal affirmed that active participation of victims in criminal cases, including cross-examination of witnesses, is not a violation of the rights of an accused.[i] This landmark precedent opens up a path that the Prosecution can exploit to join hands with advocates watching brief in the prosecution of criminal cases.
The Constitution, 2010 presented a special gift to accused persons in the form of the inviolable right to a fair trial.[ii] It guaranteed accused persons robust protection from violation of their basic rights before and during trial. On the other hand, the prosecution was constitutionally burdened with obligations that render securing a conviction a long and meticulous task.[iii]
This article celebrates the active entry of defence lawyers in prosecution through the channel of watching brief and explores how this route can be pursued to achieve some level playing field in criminal cases.
An understaffed ODPP
The Office of Director of Public Prosecutions (ODPP) has made commendable strides towards efficiently in the prosecution of cases.[iv] As the office heightens its zeal, the number of criminal cases in need of meticulous prosecution is increasingly becoming overwhelming.[v] This has stretched the human resource of the office, to the advantage of defence lawyers.
Prosecutors are sometimes allocated more cases than they are humanely capable of handling efficiently. On the other end, defence lawyers have sufficient time to focus on their cases and conduct in-depth research. The obvious consequence is an ill-prepared prosecution confronting a studious and nimble defence team.
The plight of the prosecution is exacerbated by the doctrinal burden of proof that lies squarely on them. The consequences are an overwhelmed prosecution that exceedingly falls short of proving their cases beyond reasonable doubt, especially in evidence-packed trials that demand many hours of preparation.
Whilst the rights of accused persons were elevated to ideal standards, our prosecution is still struggling with basic challenges that dilute its efficiency. An alarming number of accused are being acquitted not because of evidential insufficiencies but because the defence had more time to prepare for the trial than the stretched prosecution.
How briefs are watched
Watching brief entails an advocate following a case on behalf of a client in a proceeding in which one is not directly involved. In Kenya, watching brief is practiced in criminal cases where an advocate observes the prosecution of the case by the State on behalf of the complainant.
In criminal cases, watching brief has been a lackluster exercise where advocates are reduced to observers as their clients, the victims, helplessly watch the intellectualization of their plights.
To address the Court, advocates watching brief usually need the leave of the Court. Ordinarily, they are only allowed to address matters that directly touch on the welfare of the victims which include delays in cases and adjournment applications. It is common for criminal cases to lapse without the Court hearing from an advocate watching brief.
At the victim impact assessment stage, the advocate watching brief is also allowed to present to Court the impact of a crime on the victim. The presentation usually assists the Court to enter a sentence or admit a Plea Bargaining Agreement.
Prudent advocates have impacted on cases by working closely with the Prosecution behind the scenes to thoroughly prepare for trials. They share their notes and research for the Prosecution. In general, however, the role has remained inconsequential to the outcome of cases and has left victims feeling detached from the wheels of justice.
The precedent set in the Waswa Case
The doctrine of stare decisis is an ingenious invention of jurisprudence to achieve consistency in the interpretation of laws by Courts. Curiously, the applicability of the doctrine is itself subject to interpretation. The jurisprudential footprints of a Superior Court are as good as their interpretation by lower courts. It is important for the lower Courts to correctly extract the intended legal principles from the Waswa Case for their consumption.
No form of participation in a case is as consequential as cross-examination. It allows a party a chance to impeach evidence and challenge the testimony of a witness. No wonder it was the most contested form of participation in the Waswa Case. Noteworthy is that the Court of Appeal did not affirm cross-examination by the victim as a matter of right. It only gave a green light for Courts to entertain such applications and discretionarily grant them on a case by case basis.
A case may have multiple victims
The Victim Protection Act continues to receive a wider interpretation by Courts to enhance the participation of victims in criminal cases.[vi] The High Court in Republic v David Muchiri Mwangi  eKLR allowed the Law Society to join the watching brief team as an observer in the murder case because the deceased was an Advocate of the High Court of Kenya. The watching brief team constituted of two parties, one watching brief for the deceased’s wife and the other for his mother.
In the aforementioned case, the defence protested, in vain, that the large team watching brief threatened the right of the accused. The Court held that where multiple parties are affected by a crime, all of them qualify the definition of a victim.[vii] It further observed that it is not the number of counsels watching brief but their level of participation that may prejudice the accused.
Regardless of the extent of participation, a well-coordinated team of several advocates watching brief can join hands with the prosecution in out of Court preparations to anchor a formidable case against the accused.
Importance of coordination
The Director of Public Prosecution is exclusively bestowed with the powers to prosecute by the Constitution.[viii] As courts expand the participation of victims in criminal cases, the DPP may infer a threat of encroachment of its prosecutorial power by advocates watching brief.
In the Waswa Case, the DPP submitted in opposition to the active participation of the advocates watching brief in the conduct of the case. It argued that allowing advocates watching brief to actively participate in prosecuting cases places the DPP under the direction and control of a person which is contrary to Constitutional provisions. The DPP’s narrow and jealous interpretation of its prosecutorial function is a threat to the arrival of reinforcement from victims’ advocates that it so much needs to efficiently prosecute.
Any antagonism between the Prosecution and advocates watching brief is to the advantage of the accused. The two should at all times adopt a common strategy and prosecute in harmony to achieve optimum results. Where the victim is allowed to cross-examine and make closing arguments, there should be proper coordination.
Applicability to Economic Crimes Cases
It is in Economic Crimes Courts where the prosecution is most overwhelmed by the numerical strength of defence lawyers. It is unlikely that the prosecution can successfully invoke the Waswa Case in Economic Crimes Cases to benefit from the active participation of advocates watching brief.
In anti-corruption cases and economic crimes, the State is the complaint and the victim.[ix] The Victim Protection Act targets to protect natural persons who have fallen victim of criminalities. The Act cares less about a draconian complainant in the name of the State who needs no special protection from an accused individual.
The landmark precedent in the Waswa Case on victim rights appears to be inapplicable in Economic Crimes Courts where there is no natural victim or complainant.
Effects on the Criminal Justice System
There is no doubt that the conduct of criminal trials will be revolutionized if the Waswa Case jurisprudence is fully embraced and expanded by courts.
The dark side of collaboration between the Prosecution and Victims’ advocates may emerge in cases where an accused cannot afford proper representation. A pauper charged with murder that is represented on probono basis may suffer extreme prejudice if the prosecution and the victims’ advocates combine forces. The prejudice is worse where the accused is unrepresented.
Courts should exercise judicial prudence when permitting advocates watching brief to sink deep into the prosecution of a case.[x] An application for the victim to cross-examine should be generously allowed only in instances where the accused is adequately represented. For unrepresented accused, the participation of the victim should remain traditionally peripheral.
New frontier for defence lawyers
Criminal lawyers have been for long condemned to one corner of the criminal justice system – the defence. They have for way too long missed in action as active participants in prosecution of cases. Watching brief has for long been considered as a lousy endeavor that is irreconcilable with competent advocacy.[xi]
An opening to actively participate in prosecuting cases opens a new world to criminal lawyers. Defence lawyers can now encounter a formidable force in the form of a prosecution team composing of the State prosecutors and Advocates for the victims.
Formidable defence lawyers now have a chance to assist the state in nailing accused persons and securing convictions. For the faint-hearten advocates who are haunted by the unfounded guilt of aiding serial criminals to escape the long arms of justice, it is a chance for moral redemption.
Until the Waswa Case challenged the passive role of advocates watching brief in criminal cases, it was a settled courtroom taboo for the victims’ lawyers to utter a word when a witness is testifying on the stand. The Court of appeal has quashed this taboo for being repugnant to the interests of victims in criminal cases.
It is now upon defence lawyers, prosecutors, and criminal Courts to vigilantly mature this jurisprudence that promises to balance up the scale of justice in criminal cases by reinforcing the prosecution to match increasingly formidable defence teams.
*Levi Munyeri is an Advocate of the High Court of Kenya and a practitioner at Kimani, Kiarie & Associates. Contact the author via firstname.lastname@example.org
[i] The decision is an appeal from the Ruling of the High Court of Kenya at Bungoma, (Ali-Aroni, J.) Republic v Joseph Lendrix Waswa  eKLR – a murder case.
[ii] Article 50, Constitution, 2010
[iii] The obligations include discharging the burden of proof beyond reasonable doubt and disclosure of all evidence against the accused, an obligation that the defence is not mandated to reciprocate.(article 50b Constitution)
[iv] The ODPP states that it has achieved to handle 377,342 criminal cases, achieved 90.2% conviction rates. However the conclusion rates stands at 29.40% indicating that a relatively small number of cases reach conclusion. The reasons for the low conclusion rates are not given. Available at https://www.odpp.go.ke/
[v] The Standard (21st September 2018) Urgent fixing of staff in criminal justice system needed for the war against crime. Available at https://www.standardmedia.co.ke/ureport/article/2001296428/opinion-urgent-fixing-of-staff-in-criminal-justice-system-needed-for-the-war-against-crime
[vi] The Victim Protection Act (No.17 of 2014) was enacted to give effect to Article 50 (9) which provides Parliament shall enact legislation providing for the protection, rights and welfare of the victims of offences.
[vii] The Victim Protection Act, Section 2 generally defines a victim as any natural person who suffers injury, loss or damage as a consequence of an offence.
[viii] Article 157, Constitution, 2010
[ix] In Economic Crimes Cases case, It is usually the Ethics and Anti-Corruption Commission that watches brief for the State.
[x] In the Indian Case of Sathyavani v. Samuel Raji (CRL.OP (MD) No. 5474 of 2010) the Court warned that the participation of an advocate watching brief cannot be active and parallel to that of the prosecutor. (Para. 30
[xi] Mwale, D. Beyond watching brief and Court testimonies: A new dawn for restorative and reparative criminal justice in Kenya. (Para.1) Available at https://www.mwalelegal.co.ke/beyond-watching-brief-court-testimonies/