The Right to a Fair Trial and the Need to Protect Child Victims of Sexual Abuse: Challenges of Prosecuting Child Sexual Abuse under the Adversarial Legal System in Kenya

This study reviews literature on the rights of accused persons in criminal proceedings and the importance of protecting child victims of sexual abuse (CVSA)in child sexual abuse (CSA) trials under the adversarial legal system’s procedures. The review is organized in seven different parts. The first part discusses the importance of protecting the rights of accused persons to a fair trial in criminal proceedings, while the second part reviews literature on the emerging need to safeguard the interests of victims of crime generally in criminal proceedings, by protecting their rights and being sensitive to their concerns. The third part analyses the unique challenges of prosecuting CSA under the classical adversarial court procedure while safeguarding accused persons’ rights and the difficulties experienced by CVSA while testifying in CSA cases. The fourth part analyses challenges of protecting child victims of sexual abuse in Kenya.The fifth part is a summary of gaps identified by the literature review as occasioned by the lack of a balance between the rights of accused persons and the rights of CVSA. The sixth part is an examination of the rights of CVSA in CSA trial as well as their concerns which need to be taken into account if the trial is to be seen to be fair to them on an equal basis with the accused persons. In the seventh part, the study concludes with recognition of the importance of safeguarding the rights of accused persons which however creates an imbalance with the rights/ interests/concerns of CVSA. The study recommends balancing of the rights of CVSA with fair trial rights