Right to Notice of Charges

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Background

In order for a prosecution to be fair, the defendant must be given an opportunity to defend his or herself against the state apparatus. One essential element of a fair trial is fair and adequate notice of what charges are being brought against the defendant. Notice should be given in writing, with adequate time for the defense to conduct independent investigation into the factual foundation of the charges.


International Sources

International Covenant on Civil and Political Rights

Article 14, Section 3-

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay;"

Examples of Right to Notice of Charges

Kenya

According to Section 89 of the CPC, criminal proceedings are instituted either by making of a complaint or by bringing before a magistrate of a person who has been arrested without warrant. After a complaint is properly made, a charge is drawn by a police officer or magistrate. As an essential component of a fair trial, the defendant is entitled, by virtue of Article 50(2) (b) of the Constitution, to sufficient notice of charges brought against him with sufficient detail to enable him to answer.

The Rules for the framing of charges are outlined in Section 137 of the CPC. For a charge or information to constitute sufficient notice it must contain a statement of the specific offence or offences with which the accused person is charged and such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.

Failure to disclose an offence recognized under law will result to the dismissal of the charge. Section 89(5) the Criminal Procedure Code grants power to the magistrate to refuse to admit such a complaint or formal charge. Additionally, at the arraignment stage for trials before the High Court, an information that fails to state an offense which the accused had notice shall be quashed, Section 276 CPC.

Constitution

  • 77(2) Every person who is charged with a criminal offence-
    • (a) shall be presumed to be innocent until he is proved or has pleaded guilty;
    • (b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence with which he is charged;
    • (c) shall be given adequate time and facilities for the preparation of his defence;
    • (d) shall be pertained to defend himself before the court in person or by a legal representative of his own choice;
    • (e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and
    • (f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge, and except with his own consent the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court his ordered him to be removed and the trial to proceed in his absence.

Criminal Procedure Code (2009)

  • 134. Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.

Tanzania

Criminal Procedure Act (1985)

  • 131. Immediately after police officer charges a suspect with an offence, the police officer shall caution the person in writing and if practicable orally, in the prescribed manner
  • 132. Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.

Uganda

Constitution

  • 28(3) Every person who is charged with a criminal offence shall�
    • (a) be presumed to be innocent until proved guilty or until that person has pleaded guilty;
    • (b) be informed immediately, in a language that the person understands, of the nature of the offence;
    • (c) be given adequate time and facilities for the preparation of his or her defence.



See Rights of the Accused