Access to justice

Access to Justice

Persons with intellectual disabilities may have limited language ability, comprehension and communication skills and may take longer to process information; and have difficulty recalling information and sequencing events. The difficulties discussed above have certain implications for the justice system.

For example, persons with intellectual disabilities may appear to agree to an instruction and then not comply because the instruction was not adequately understood.  Further, a person with an intellectual disability may answer questions in the way they think the questioner wants them answered, regardless of what they consider to be the truth of the matter. All of these difficulties are likely to be exacerbated in stressful situations such as contact with criminal justice services and, in particular, during interviews with the police, appearing in court and being held in detention.

In response to above, KAIH advocates for reasonable accommodations. These are adjustments or adaptations to a court proceeding or other court service, program or activity that enable a person with a disability to participate in court proceedings on an equal basis.
Accommodations may be divided into two categories:
a) Accommodations to do with language and content
b) Accommodations regarding the environment.

Examples of accommodations to do with language and content include adjustments or adaptations in communicating the notion of time, the concept of dates, the concept of quantifying or communication regarding where an event took place.
Examples of accommodations in the environment include conducting interviews outside the police station or removing uniforms and other formal attire, having a support person present during interview and taking extra breaks.

Key Programs

Support persons/ intermediaries training

Section 2 of the Sexual Offences Act defines an ‘intermediary’ to mean “a person authorized by a court, on account of his or her expertise or experience, to give evidence on behalf of a vulnerable witness and may include a parent, relative, psychologist, counselor, guardian, children’s officer or social worker.” Intermediaries assist the persons with intellectual disabilities to participate in an optimal manner in the judicial process and maximize the ability of individuals to present their version of events, without directing or impacting on the content of that version.

An Intermediary helps dismantle obstacles in language and communication as well as in the physical and social setting of the justice system.

The following principles that should guarantee the integrity of the process in which an intermediary is involved:

  1. Neutrality: The intermediary should be a neutral party, with no connection to the case except for ensuring the right of a person with intellectual disability to full and fair participation in the justice system.
  2. Avoid leading the person: The intermediary should use accommodations which have the least effect of leading the person with intellectual disability but still answer the person’s needs and ensure the person understands the proceedings and is being understood by others.
  3. Avoid contaminating an investigation: The intermediary will ensure that none of the interventions will cause contamination of the investigation. This includes avoiding talking about the case with the person with intellectual disability for whom accommodations are being provided except in the process of providing accommodations, and refraining from changing or correcting what the person is saying as part of the investigation or testimony.
  4. Transparency: Every intervention by the intermediary will take place in the presence of or with the approval of the appropriate official of the judicial system connected to the case, such as a police investigator, staff person from the prosecution or the defense, or the court.

Reasonable accommodations in the justice system

Currently, Kenya Association of the Intellectually Handicapped (KAIH) and Users and Survivors of Physiatry Kenya (USP-K) advocates for reasonable accommodation people with intellectual disabilities and people with psychosocial disabilities in the justice system. The keys players in the justice system are the police investigators, prosecutors, advocates, as well as judges and magistrates.

“Accommodations are adjustments or adaptations to a court proceeding or other court service, program or activity that enable a person with a disability to participate in court proceedings on an equal basis with others.”

Accommodations are to do with language, content and environment

I. Language and content: adjustments or adaptations in communicating the notion of time, the concept of dates, the concept of quantifying or communication regarding where an event took place e.g through intermediaries, demonstrating, communication boards etc

Environment related accommodations

  •  Conducting interviews outside the police station
  • having a support person / intermediary present during interview
  • Expediting testimony
  • Hearing in camera
  • Removing uniforms and other formal attire
  • Witness protection box
  • Taking extra breaks
  • Informal environment
  • Allowing the witness time

Case Studies on Accommodation:

Language: scenario 1

Wakabi is a 19 year old girl with an intellectual disability. One Sunday after church, her mother found her at home crying, and when asked what was wrong, she repeatedly pointed at their watchman’s house, and at her groin area. She is the main witness/complainant in a case where the watchman, James is accused of rape. The accused person, in cross examination, asks her the following questions: What day was it? Wakabi answers Thursday. What time do you say the event occurred? Wakabi says 10.00 and when asked in a different way, she says 8.00. The defence counsel says that her testimony is unreliable. How would you help in this situation?

Language: scenario 2

Yeni is a 24-year-old man with multiple disabilities. In addition to having an intellectual disability, Yeni has very limited use of language. Yeni went to a neighbour’s farm and ate mangoes from the neighbours tree. The neighbour’s son, Wabi, thoroughly beat up Yeni. Yeni needs to give his testimony against Wabi. You are the intermediary in this case. How do you think you would assist Yeni?

Environment scenario 

Emilio is a 28 year old man with a psychosocial disability. He is accused of theft (stealing clothes). When testifying, the court room is full of people, and he seems to have trouble concentrating. Also, the police officer beside him keeps fidgeting with his gun as Emilio attempts to answer questions. Emilio’s testimony has been going on for over an hour. What are the barriers Emilio is experiencing? How would you, as an intermediary, assist in this situation?

Social setting scenario

Eba is a 30 year old man with autism. Eba is the sole witness in a murder case and needs to testify. He seems quite traumatised. He is very fearful of meeting with strange people in a new place. In addition due to his communication disability it is very difficult for him to make eye contact and to concentrate. He is giving evidence in a courtroom full of people, some who keep moving in and out of the courtroom. The corridor outside the courtroom is busy with people walking and talking, sometimes loudly. The magistrate interrupts Eba in the middle of testifying and Eba loses his temper and tells the magistrate to shut up and let him finish talking. The magistrate gets upset and states that Eba is in contempt of court. This could lead to Eba being held in custody. How might this scenario have been prevented? What would you do if you were the intermediary in this case?

Barriers in the criminal justice system

The case studies point at systemic barriers faced by persons with intellectual disabilities in the criminal justice system as discussed in more detail below

  • Persons with intellectual disabilities do not receive the procedural or other accommodations, including communication accommodations they need to equally participate in criminal justice processes as victims of crime
  • Negative attitudes and assumptions about persons with intellectual disabilities often result in their being viewed as unreliable, not credible or not capable of giving evidence or otherwise participating in criminal justice proceedings.
  • Delays in criminal justice proceedings affect all participants in the justice system but present a unique challenge for persons with intellectual disabilities.
  • The law in some cases is a barrier to persons with intellectual disabilities accessing justice on an equal basis with others

Case studies on barriers from accessing justice.

Case 1X is charged with defiling a child of 12 years (the Complainant) who also has a mental disability. The Magistrate’s Court finds him guilty, based on inter alia the evidence of the Complainant’s mother, who testifies that she came back from church to find that ‘the victim had been defiled and was crying while mentioning Appellant’s name – “X” – while pointing in the direction of the Appellant’s house’.

The Complainant does not testify in this case. X appeals against the conviction, arguing that in the absence of an eyewitness and the Complainant’s inability to testify, there was no evidence to link him with the offence. The Appellate Court agrees with the Appellant, and notes that the Magistrate’s Court should have declared the victim a vulnerable witness and appointed an intermediary. According to the Appellate Court, failure to do this rendered the evidence received as hearsay.

The Appellate Court laments that ‘the learned trial magistrate did not guide the prosecution accordingly in this case’ and orders a retrial before a different magistrate.

Note that:

  • The Complainant is not given an opportunity to testify at the Magistrate’s Court
  • The Magistrate’s Court fails to appreciate its role in providing reasonable accommodations  to the Complainant
  • The case has already taken four and a half years at the stage when the court orders a retrial

Case 2:

Y is charged with the offence of gang defilement of a child aged 15 years (the Complainant). The Complainant gives evidence through her stepmother after the Magistrates Court remarks that the Complainant is an ‘imbecile’. Y is convicted. On appeal, the Appellate Court notes that the Magistrate’s Court did not give reasons for concluding that the Appellant suffered from ‘mental retardation’.

The Appellate Court quashes the conviction, stating that some of the evidence taken into account in finding the Appellant guilty is that of the intermediary, who was irregularly appointed (given that the Magistrate’s Court did not carry out an inquiry to satisfy itself that the witness had a mental impairment).

The Appellate Court states the following with regard to using intermediaries:A Court must scrupulously satisfy itself that use of an intermediary is in the interest of Justice and therefore Justified. This is because once Intermediary Evidence is allowed, there is always the danger that the evidence will not be effectively tested by the accused person because he/she will not be confronting the complainant in person during cross-examination.

The Appellate Court sets the sentence aside and orders a retrial before a different magistrate from the one who convicted the Appellant.

Note that:

  • The Magistrate’s Court uses derogatory language: ‘imbecile’
  • The Magistrate’s Court fails to follow the correct procedure in appointing the intermediary
  • The Appellate Court holds the opinion that use of an intermediary automatically means that the accused person is denied the opportunity to confront the complainant in person during cross-examination

Training of justice sector actors

Special training is necessary for all those involved in the criminal justice system to assist them in responding to the needs of vulnerable witnesses. Article 13(2) of the CRPD states that, “in order to help ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of justice administration, including police and prison staff.”

In concluding observations to Kenya on article 13, the CRPD Committee recommended that Kenya develop a capacity building strategy within the judicial branch on the rights of persons with disabilities, including lawyers, magistrates, judges, prison staff and the Police. Training shall be geared towards understanding the various accommodations that persons with disabilities may require in order to access justice on an equal basis with others.

Training should also be geared towards changing the perception of actors in the justice system from viewing people with intellectual disabilities as incompetent witnesses to viewing them as individuals who, with the necessary accommodations can testify on an equal basis with others.  A research on Access to justice Kenya Association for the Intellectually Handicapped (KAIH) and African Institute of Children Studies (AICS) in partnership with Probation and Aftercare Services are carrying out a joint study on access to Justice for persons with intellectual and psychosocial disabilities as perpetrators in the criminal justice system in Meru, Tharaka Nithi, Embu and Nairobi County.

The objectives of the study are to:

    1. Document the estimated number of persons with mental disability in the criminal justice system (police/ judiciary/ health facilities/ prisons/ probation) in Kenya
    2. Document the challenges that persons with mental disability face in accessing justice in the criminal justice system.
    3. Outline the current measures being taken by the courts and probation, the policies in place to address the support needs of people with intellectual and psychosocial disabilities.
    4. Identify the gaps in the criminal courts and probation department in addressing offenders with intellectual and psychosocial disabilities and make recommendations on how to address the gaps

The self-advocates participated as the research assistants. They were trained on the tools and practical ways of collecting data with respect and dignity from persons with intellectual and psychosocial disabilities.Tips for Conducting Interviews with People with intellectual and psychosocial disabilities

  1. The language“person-first” language is preferred when referring to respondent. The interviewer should be prepared that the interview process may require additional time and patience.The interviewer should identify himself or herself clearly to the Respondent. Explain to the respondent on everyone’s role and reason for being present at the interview.The interviewer should use her or his usual tone and volume of voice. The interviewer should make every effort to keep your language simple and clear.The interviewer may need to occasionally check to make sure that the respondent has understood what the interviewer is saying.The interviewer should offer support in a sensitive and respectful manner.
  2. Interviewer Etiquette – It is important for the interviewer to look at and speak directly to the respondent. The interviewer should not talk to the person through the accompanying family or support person.When interviewing people who have some communication difficulty, the interviewer should avoid correcting them or completing sentences for them. The interviewer should exercise patience and should not attempt to speak for the respondent. If the interviewer does not understand what the respondent is communicating, the interviewer should ask the respondent to repeat it. The interviewer should not hesitate to restate to the respondent what the interviewer understood, and ask the respondent to correct or confirm that it is correct. The interviewer should remember to be cautious; it may happen that the interviewer misunderstand what the respondent said but that the respondent may not feel comfortable correcting the interviewer. When possible,  the interviewer should ask short questions that require short answers or a nod or a shake of the head