Does Kenya permit trial in absentia?

After nearly a decade of dilly-dallying, a magistrate has finally tired of the corruption waiting game called Anglo-leasing and is attempting to put a UK based corporation- Infotalent Ltd.- on trial in absentia. The will-power and initiative shown is laudable. But does Kenyan law explicitly permit trials in absentia?

This is no idle question since the constitution expressly protects an accused’s right to be present at trial (Article 50). However, the same constitution makes an exception where “…the conduct of the accused person makes it impossible for the trial to proceed…”. One could argue that this is limited to conduct within the courtroom itself or where the accused absconds from his trial. But the provision does not itself specify this narrow definition. One could thus argue that the corporation in the Anglo-leasing case had made proceeding with the trial impossible due to its refusal to honour summons to appear. This is similar to the situation of Yagnesh Devani who is a fugitive from Kenyan law and as a result is currently on trial in absentia. Thus, on this view, the magistrate was correct to proceed without the presence of the defendant (since notice of the charges had been served on Infotalent).

The view that such notice (and opportunity to attend) is sufficient is supported by the Human Rights Committee of the ICCPR’s general comment no. 32 (para.31). Although the comment is not binding itself, it is an influential codification of the Committee’s jurisprudence and of the prevailing view of the interpretation of ICCPR rights.

Alternatively, the magistrate might treat this as a case of refusal to plead (under s.207(4) of the Criminal Procedure Code) and enter a plea of ‘not guilty’. From the report, it appears this is what the magistrate in this case did. Again, the basis of this approach would be that the accused made proceedings impossible by refusing to be present and take a plea.

However, the contrary view is that the exception in Article 50 is a narrow one and does not cover a situation where the accused fails even to turn up to plead. The Criminal Procedure Code seems to support this, allowing trial in the absence of the accused only for non-felonies (for example in s.99 and s.206). This suggests that felonies such as the corruption charges Infotalent ltd. faces cannot be tried in absentia. There’s at least one case on s.206 of the CPC that supports this view with respect to an accused who failed to turn up after adjournment. Thus, if a court cannot try and convict on a felony where the defendant failed to attend trial after adjournment, it seems less possible that a court could try and convict a suspected felon who never even appeared in court to plead. Arguably a change in the statute law would be needed to make this possible.

Furthermore, one could argue the right to be tried in absentia cannot be implicitly waived. As the ICC cases of William Ruto and Uhuru Kenyatta have demonstrated, it is imperative, given that the right not to be present belongs to the accused, that the accused give an explicit written waiver that shows that he/she/it understands the consequence of waiving the right to be present at trial. These include the consequences that may bar the accused from raising absence at trial as an appealable issue.

Finally, even if trial in absentia for felonies is acceptable in Kenyan law, I would consider it an exceptional remedy deployed with reluctance. Furthermore, it is wise to recall the Human Rights Committee’s warning that in such trials ” strict observance of the rights of the defence is all the more necessary.” Thus the prosecutor should not take shortcuts because the defendant’s not there.