Wednesday, July 16, 2008

CSI vs Kenya Law - Who Will Nail the Rapists

In a previous post here, I mentioned the availability in Kenya now of rapid DNA testing capabilities, courtesy of an independent forensic outfit that has recently set up shop, the CSI Nairobi. While welcoming this top end technology in our arsenal of tools to unravel and speed up forensic cases, I also expressed a little skepticism over whether the guardians of our outdated laws would be inclined to accept this, now widely practiced, technology. And true to form, the ancient sloth that bestrides our legal corridors has not disappointed.


CSI Nairobi says they have spent most of the last two months shuttling from one government office to another trying to convince the powers that be to accept results of DNA profiling that they have conducted. This is watertight evidence that will help nab and convict without a doubt the perpetrators of various crimes. They are currently holding many such results pertaining to the murderous post election violence that included gang rape and other forms of physical brutality. But as the Kenyan law now stands, it cannot be adduced in court because CSI Nairobi is not a designated government analyst. Their high tech evidence can actually be dismissed as hearsay... or as our lawyers like to dismiss it, mama mboga evidence! By Kenyan law, the only forensic experts recognized in court are to be found at the Government Chemist’s department. And even then, they have to be gazetted officers. To be gazetted, one would first have to be in the employ of the Government Chemist, undergo several years’ training and then gather several years in experience as a senior analyst.

Of course this now means that to indulge the ingenious good people of CSI Nairobi, the laws may have to be changed. But by whom and when? Our serious looking Director of Public Prosecutions who should be bothered by the increasing number of pending cases in these matters is apparently engaged in more serious matters of the state. Like chasing one Okoiti Omtata around town with countless charges of, among other things, attempting to commit suicide at Police Headquarters. The best he could do for CSI Kenya was to ask them to take their results “to the CID and Government Chemist for verification and accreditation”. The very same agencies that have no capacity to conduct these analyses! The CID would be verifying DNA profiles against what? Finger print records? And by what statute would the Government Chemist be accrediting anyone when he/she has no such powers anyway? Was the DPP just flexing muscles by tossing around hawa vijana tu or could it be that he does not really appreciate just how much law he’s purporting to serve is senselessly convoluted?

Bwana DPP also reminded the CSI that the Attorney-General had set up a task force to look into the ‘operationalisation’ of the Sexual Offences Act (of 2003). Yes, 2003! And still waiting. Gender activists might want to note that the said task force is/was chaired by Lady Justice Joyce Aluoch. And that the Minister for Justice and Constitutional Affairs under whose docket the law reforms program falls is one Martha Karua.

It is hard to tell what it is that the authorities are doing sitting on such a law even though the comforts of high office may obviously be preventing them from empathizing with the trauma and suffering of many civilians. Assuming that the said Act will in fact give way to the likes of CSI Nairobi being incorporated in the fight against these crimes, one is at a loss to figure out just what it takes to ‘operationalise’ this law. And given the daily revelations of the shady goings-on in the corridors of power, one would be tempted to think that schemes are being put in place to ‘eat’ from the operationalisation process. I wouldn’t put it past these folks, never mind their professed learned brotherhood.

I suspect that the simple truth is that government functionaries are in a state of utter confusion and apathy with no one in particular tasked to work on any specific tool or event related to the law(s). The top brass in the bloated executive are engaged in foolish grand posturing while their charges pass the buck and continue to serve faithfully at the pleasure of the President.

Meanwhile, thousands are crying out for justice and the CSI resources that may just alleviate their suffering could end up lying idle. Isn’t the law an ass?

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7 Comments:

Shiko-Msa said...

Red tape red tape red tape everywhere! That plus octogenarian office holders are the ones who are holding Kenya behind.

And it does not help matters to hear that many of the rapists were the police themselves. The same ones who are supposed to uphold the law and help victims.

Mcheku said...
This comment has been removed by the author.
Mcheku said...

Hlumiti you said it! The law is an ass! na sina la kuongeza.

HLumiti said...

Yep shiko and mcheku,

And the ass riders are trotting around without the slightest discomfort.

AG Wako was admitting in parliament yesterday that poor evidence presented by the police in courts has led to several acquittals of known criminals. He assured the house that he was "putting mechanisms in place" to increase their capacity to prosecute. What mechanisms? Hiring more lawyers! And of course he was smiling non-stop.

Meanwhile Evans Monari (one of the highly priced lawyers around) has been hired to defend the police at the Waki Commission. You should see the man frothing at the mouth as he demands for 'evidence' that the police meted out violence on civilians.

That is the law.

Our Kid said...

Allow me two comments (or 2 cents worth of comments)

Changes in the law need not be moved by the Ag or the lovely Ms Martha Karua. Any Mp can move a motion to amend some provisions of the law that seem archaic. So all voting Kenyans have a duty to remind their MPs of some of the things they could do to improve our laws. But if we are just voting for dimwits because they are from our tribes or from our clans... we get part of the blame for the archaic laws we have. remember when Joe Donde moved against the banks?

Then though I appreciate the role that CSI is playing, sometimes you get the feeling they are also in it for business and may be getting a lot of publicity and goodwill though the misfortune of others. There was time their Md appeared on telly and h seemed bent on advertising its services to the government. If fifty other such organizations sprang up, will the Government be obligated to use them all?

Having said that, my heart goes out to all victims of sexual abuse. Just the courage to go on with their lives after going through such trauma is an admirable human trait and I hope all perpetrators of sexual violence meet punishment.

Shiko-Msa said...

Our kid Joe Donde, thanks for reminding me about that guy. I wish he had stayed on for some more time. And how I wish Njoki Ndung'u too was still in that house for another term or two.

Our kid the government can opt to pick just one service and use it. After all did they not eat the forensics money?

If Kenya uses the system on some criminals and actually use the evidence that comes of it to prosecute, that will instill fear in the others who go around raping with impunity.

My heart also goes out to victims of sexual violence. that is just about the worst thing that can be done to a woman.

HLumiti said...

Very well said Our Kid and most certainly worth more than 2 cents. Allow me to add that;

1. Private members' motions in that our House have a poor success record of implementation. If and when they manage to pass, they are merely 'noted' by the executive. Or watered down as to be rendered worthless. Perhaps less than 2 cents. Remember Njoki Ndungu's battle against rapists? Which is not to dismiss efforts of hard working MPs, but they are a rare breed and yes we the voters could do better. But as is often said, chief among governments' prime duties is providing security to its citizens. From the front, not waiting for lobbyists.

2. True, CSI is in it for business. Much like our private hospitals whose costs have become fairly affordable after being allowed to mushroom, so to speak. Seeing that government's development budget is not about to expand any time soon, it would serve better to change the law and accommodate private practice in forensics. The problem now is that even those who are willing to pay for CSI's service cannot get this evidence to court. I don’t think that CSI are in it just to reap from peoples' misfortune. What about, say, The Aga Khan Hospital? They charge 1000 times for malaria treatment that you'd get for free at your district hospital. But which one do many choose? It is all about government licensing those with qualifications and capacity to offer alternative service. The government does not doubt expert evidence from Aga Khan. Why should it hesitate to accept an expert’s evidence from CSI? There is in fact less magic in forensic science than surgery.

Our government is not moving with the times, leaving many people to suffer endlessly.