A not so learned friend from the High Court of Kenya

I always hold my head higher and walk a bit taller whenever someone reminds me that I am part of a noble fraternity. The words “hello, learned friend” is the way lawyers around the world salute each other; this is the way we lawyers acknowledge the challenges we faced and the brain power expended to get a Juris Doctor. We have ‘studied and learned’.

I always hold my head higher and walk a bit taller whenever someone reminds me that I am part of a noble fraternity.

The words “hello, learned friend” is the way lawyers around the world salute each other; this is the way we lawyers acknowledge the challenges we faced and the brain power expended to get a Juris Doctor. We have ‘studied and learned’.

However, in all barrels of apples there always a few rotten ones. These ‘apples’ give us all a bad reputation.  They use their brain power to lie, steal and pervert the course of justice. Enter Domitila Mwangi, an advocate of the High Court of Kenya.

Mwangi wrote an article in the most recent issue of the East African titled ‘Community must condemn Rwanda’s trials in absentia’ which was sadly a great bit of ‘lawyering’.

We readers were assailed with lies and half truths. I will attempt, in this piece, to make a counterpoint to each and every one of her arguments.
She says;

“The trials did not meet international standards for a fair trial; by trying the accused in absentia, the court denied them their rights to defend themselves and to present their evidence. Trials in absentia seriously undermine the work of any judiciary and the credibility of the Rwanda judiciary is now in doubt. Article 14 of the ICCPR (the International Covenant on Civil and Political Rights), a treaty that binds Rwanda, requires an accused be afforded an opportunity to exercise their right to be heard and to present their evidence”.

I retort;
Actually, the UN Human Rights Committee, which monitors states’ compliance with the International Covenant on Civil and Political Rights, has said that, in some circumstances, trials in absentia are permissible in the interests of the proper administration of justice. In order for a trial in absentia to be compatible with international human rights law, the relevant authorities must have made an effort to contact the accused and their defence counsel to tell them of the trial. The convicts have not disputed their court summons.  A case put before the Human Rights Committee, Mbenge v Zaire CCPR/C/18/D/16/1977, decided on 25 March 1983, is recognized international jurisprudence. My learned friend should take a peek at it. We haven’t violated our international obligations and to say otherwise is a falsehood.
Mwangi writes;

“There has been an increasing international acceptance of the standards that prohibit trials in absentia, including the International Criminal Tribunal for Rwanda”
I reply;

“Here are some of the nations worldwide, developed and developing, which allow trials in absentia. Algeria  Belgium Egypt France, Italy Jordan and the US ( Federal law allows trial in absentia when the accused flees in the middle of a trial) and Uzbekistan. And this list isn’t complete. What I’m attempting to show is that trials in absentia aren’t a ‘Rwandan thing’”.

The rest of her article is a rant against our judiciary and their application of the law. Ms. Mwangi, Rwanda’s Code of Criminal Procedure Article 157 reads “when the alleged perpetrator of a crime or misdemeanor escaped abroad or when he fled justice, the prosecution is his record and notify the competent court even if the defendant n has not been questioned. There shall be a trial in absentia.
The ruling is subject to appeal.” What this means is that all these convictions can be appealed as soon as the fugitives are apprehended.

Rwanda’s laws aren’t as barbaric as you attempt to portray in your piece. Our East African bretheren will surely ignore your mean spirited rant. Rwanda is a proud member of the EAC and our sister states appreciate its input.

sunnyntayombya@newtimes.co.rw

 

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