THE LAW AND PRACTICE OF VOIR DIRE EXAMINATION IN KENYA
Voir dire examination is a key pillar of the judicial process in Kenya. It ensures that the testimony that is given in court is both reliable and admissible. This process of assessing the capability of a witness to testify is particularly important when the witness is a child or a person whose mental capacity is in question. The Kenyan legal framework especially the Evidence Act and the case law, details the conduct of the voir dire examinations.
In Kenya, the Voir dire examination is conducted in accordance with the provisions of the Evidence Act. The Evidence Act (Cap 80), Section 125, provides as follows;
“(1) All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause.
(2)A person suffering from a mental illness is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them.”
A witness must be competent to give evidence, which includes understanding the duty to tell the truth. The Act therefore emphasizes that if the witness’s competency is in doubt, the court must first of all carry out a voir dire examination to determine if the witness is in a position to give a reliable testimony.
In the case of ASM v Republic (Criminal Appeal 57 of 2019) [2022] KEHC 15141 (KLR) (12 October 2022), the High Court of Kenya dealt with the issue of the applicability of voir dire in determining the competency of a witness. The court pointed out that the trial court was responsible for determining whether the witness understood the oath and was able to provide an accurate testimony. The decision in this particular case stressed the importance of the voir dire in verifying the credibility of witnesses, especially minors. The court noted that the voir dire should be conducted in the manner that would safeguard the witness’s rights and at the same time assess the witness’s competency. It is important that the witness understands the nature of the oath and the duty to tell the truth.
The Court of Appeal in Maripett Loonkomok v Republic [2015] eKLR observed as follows;
“Section 19 of the Oaths and Statutory Declarations Act is concerned with the reception and admissibility of evidence of a child of tender years. The section starts by declaring that where the child does not, in the opinion of the court understand the nature of an oath, his evidence may nonetheless be received though not given upon oath. But that evidence shall only be received if, again in the opinion of the court, the child is possessed of sufficient intelligence to justify the reception of the evidence and also if, the child understands the duty of speaking the truth…The question therefore is, who is a child of tender years? The Sexual Offences Act and the Oaths and Statutory Declarations Act are silent on this question. However way back in 1959 in the celebrated case of Kibageny Arap Kolil v R (1959) EA 82 the Court of Appeal for Eastern Africa held that the phrase “a child of tender years” meant a child under the age of 14 years. The only statutory definition of a “child of tender years” is section 2 of the Children Act where it is defined to mean a child under the age of 10 years.
This Court has recently in Patrick Kathurima v R, Criminal Appeal No 137 of 2014 and in Samuel Warui Karimiv R Criminal Appeal No 16 of 2014 stated categorically that the definition in the Children Act is not of general application; that it was only intended for the protection of children from criminal responsibility and not as a test of competency to testify. It follows therefore that the time-honored 14 years remains the correct threshold for voire dire examination…”
The Court of Appeal further noted that, “It follows from a long line of decisions that voire dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this court recently found that; “In appropriate cases where voire dire is not conducted, but there is sufficient independent evidence to support the charge … the court may still be able to uphold the conviction”.
Corroboration of Evidence from Child Witnesses
It is trite law that the evidence of a child of tender years to wit below 14 years of age must be corroborated. However, the duty of the courts to impose the requirement on corroborative evidence is discretionary. The courts may waive the need for the prosecution to call a witness to corroborate the child’s testimony if:
The court is satisfied that the minor understands the duty of telling the truth and has a recollection of events.
The child is above the age of 14 years and equally meets the threshold of admissibility of child testimony pursuant to the Evidence Act.
The court suo moto sees no need for corroborative evidence.
The issue of corroboration has been addressed by the Court of Appeal in Bernard Kebiba vs. Republic [2000] eKLR where the learned judges stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
Similarly, in Benjamin Mugo Mwangi & Another vs. Republic [1984] eKLR the Court of Appeal was of the opinion that:
“The relevant law in Kenya is succinctly set out in Chila vs. The Republic (1967) EA 722 at page 723:
‘The law of East Africa on corroboration in sexual cases is as follows: the judge should warn the assessors and himself of the danger of acting on the uncorroborated testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that here evidence is truthful. If no such warning is given, then the conviction will normally be set aside unless the appellate court is satisfied that there has been no failure of justice.’
Conclusion
In a nutshell, the legal jurisprudence in Kenya provides guidelines as to the admissibility of evidence from child witnesses. The court must ensure that a voire dire examination is conducted to assess whether the child witness;
- Understands the nature of an oath
- Appreciates the duty to tell the truth
- Prepares the child witness to testify truthfully
- Observes, remembers and can verbally describe events (Recollection of events).
Additionally, the testimony from a child witness requires corroboration although the same is not in stringent terms and lies at the court’s discretion. In practice, the voir dire examination consists of asking the witnesses questions to find out their understanding and ability to testify truthfully. This practice ensures that the testimony of witnesses is not only relevant but also reliable. The process of the voir dire in accordance with the necessity and openness is the main pillar of the judicial process.
