justice

When Justice may not accommodate fair trial

Justice and fair trial often go hand in hand. Recently, I met a complainant in one of the murder trials I witnessed. He shot arrows from diction as the trial of the accused commenced.

‘Why doesn’t he confess? He did it. Everyone says so. Why is the government dancing with him in court? He killed ABC. He deserves to die. Everyone knows.’ He lamented.

‘Yes, he must be sentenced to death immediately. Why waste our time?’ replied his acquaintance in chorus.

Here below is what we discussed about and hopefully they followed the meaning of the trial at hand:

Did you know that a right to hearing, to legal counsel, to adequate time for preparation of the trial, to cross examination of prosecution witnesses and examination of one’s witnesses etc are all elements of a fair trial? In essence, without these and others, there is no justice; neither to the victim nor the accused.

But the line between ‘justice’ and ‘fair trial’ can be difficult to draw when one hijacks the other.

Justice encompasses moral inclination, the right and wrong of human livelihood, ethics, and religious beliefs. It then burdens the law to define its own place in society while exercising a fair trial.

The line between ‘justice’ and ‘fair trial’ is a matter of procedure. Whereas justice’ demands that an offender be punished for the offence, ‘fair trial’ dictates that the offender be chanced audience to explain his actions and be punished only up to the point his actions offended the victim. This notion breeds leniency and measurement of punishment.

Surely, magnitudes of both principles influence the recipients’ reaction. That is why social construct from communities regards ‘justice’ as payment for wrongdoing while the proprietors of systems and law dwell much on ‘fair trial’. The latter objectively want to eliminate any reason to question their actions. They also want to draw comfort in apportioning blame on legal systems where they fail the accused, i.e in a botched trial.

Justice as part of natural law

It can be argued that societies have their own systems of trial. They administer ‘justice’ according to established principles. Where an offence has a natural (inherent) punishment, imposing another is overstretching.

In most legal systems, Constitutions reflect a community’s outlook on crime and punishment. It is like for every crime/offence, there is an equal penalty. Without offences, there are no penalties.

Fair trial

This is procedural. It is built overtime. It is practiced and often, if not always, coded, like Acts of Parliament, Rules and Regulations, Civil & Criminal procedure of trials.

For example;

In a criminal trial under the common law system, it is common to find an accuser (victim or representative) assuming the first right of procedure.

From filing suit to examination of witnesses, the prosecution carries the responsibility of launching the case against the accused.

Then the accused gets the opportunity to defend and also challenge the case against him.

This is what usually scares justice seekers. Giving an accused an opportunity to ‘evade’ responsibility sometimes irks the affected. But in any organised society, legal systems prioritizing fair trial should not be intimidated. They are pillars of justice, ironically.

Why?

A judge is at an awkward position to find fault, condemn, convict or exonerate any accused in a case he did not witness or contribute to!!

The unfortunate ending is when,

  1. The guilty party is exonerated; or
  2. The innocent party is punished for a crime he did not commit. That is the worst experience of any law keeper.

Conclusion

In as much as this message is hidden, practitioners and advocates of justice should not be afraid of fair trial. It’s all for justice for the victim and fairness to the accused and society which eventually shares the weight of supporting the judicial system and those condemned.

Besides, it is a mechanism of creating order among individuals who otherwise would have employed asymmetrical means of settling disputes.

BY ATUHAIRWE AGRACE

This article appears in our weekly digital law magazine, The Deuteronomy Vol 2, Issue 2 of February 9th 2017

To receive The Deuteronomy in real time, click HERE

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