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UNODC ROEA supports Kenya's prosecution authorities in developing measures for fair trial

Nairobi, 20 January 2022 - In many jurisdictions, terrible miscarriages of justice occur in which innocent people may languish in prison for crimes they didn’t commit. Such failures of justice can occur because the prosecution has not conducted proper disclosure in relation to evidence and other material in a case. In a criminal trial, “prosecution disclosure” means ensuring that an accused person receives, in advance, access to all the evidence that is going to be relied upon so that he or she can properly prepare.

It also means that the prosecution considers disclosing any other material that might assist the accused person, as well as material that might undermine the prosecution case.  A simple example might be where one prosecution witness contradicts the account of other prosecution witnesses and supports the defence’s version of events.  That contradictory statement should not be “lost” – it needs to be provided to the defence, and they should then be allowed to call that witness as part of their case if they wish.  

Across much of Africa, what, when and how this duty of disclosure is discharged is not fully articulated in any policy or law.  Often, it is based on a mish mash of case law and procedural rules, neither always accessible nor easily understood. A robust disclosure process is vital for ensuring fairness at trial, which underpins the credibility of a criminal justice system. Proper and safe convictions reduce the frequency of costly appeals and retrials – which undermine public confidence in the investigation and prosecution authorities.  A proper disclosure process is the bedrock of managing efficient and fair trial processes that boost confidence in the rule of law.

This week, with the support of UNODC and the US government, Kenya is a trailblazer among African countries in its efforts to deliver a strong prosecution policy, solely targeting this important issue. This builds on an impressive decade’s track record. In less than 10 years, Kenya’s prosecution authority has:

  • Expanded its service from barely 150 prosecutors to one that is home to nearly 1,000.
  • Advanced the professionalism of its service to the public developing policies on charging, plea bargaining, diversion.
  • Opened up a training institute aimed at delivering quality training to its prosecutors, and so much more.

All of this has been made possible not only thanks to the leadership within Kenya’s prosecution authorities, but also with the support of civil society and development partners such as the UNODC and #INL. By developing a policy that will have hugely progressive implications for investigation and prosecution authorities, Kenya’s Office of the Director of Public Prosecutions once again shows itself as fearless in its pursuit of a fair and proper criminal trial process.