Arrests and The Rights of Arrested Persons In Kenya.
An arrest can be defined as the actual seizure or touching of a person’s body with the intention of taking them into custody or detention. It is a forcible restraint on a person’s liberty, which can be effected either with a warrant or without a warrant under powers conferred by law. Section 21 of the Criminal Procedure Code (CPC) stipulates that, in making an arrest, a police officer or other person executing the arrest shall actually touch or confine the body of the person being arrested, unless the individual submits to custody by word or action. However, Section 24 of the CPC provides that the person arrested shall not be subjected to excessive force than is necessary to prevent his escape. Therefore, when an arrested person is cooperating there is no need to use force or restraints such as handcuffs. Once an individual has been arrested, the Police Officer is empowered to search them by Section 25 of the CPC and take them into custody.
Who can Conduct Arrests?
Arrests can either be conducted by a police officer or a private citizen in what is known as a “Citizen’s arrest.” As stated above, when one is arrested by a police officer, such arrest can take place with or without a warrant. Arrests without a warrant may occur under the condition that the police officer suspects that the person has committed; a cognizable offense, a felony, breached the peace, obstructed police officers executing their duties, possessed stolen property, deserted from the armed forces, or possesses implements for housebreaking.
When one is arrested and held in custody they are still protected by law and have specific rights that protect them and ensure fairness, prevent abuse of power, and uphold the principles of justice and human dignity. These rights are mainly provided in Article 49, 50 and 51 of the Constitution of Kenya.
Rights of Arrested Persons
An arrested person in Kenya has the right to be promptly informed; of the reason for their arrest in a language they understand. They also have to be informed of their right to remain silent, and the consequences of choosing not to do as well as their right to communicate with an Advocate and any other necessary person.
When a person is arrested, they have a right not to be compelled to make any confession or admission that could be used as evidence against them. Additionally, they have the right to be brought before a court within twenty-four hours of being arrested. If the twenty-four hours after arrest end outside ordinary court hours or happen to fall on a non-court day, the arrested person must be arraigned before a court by the end of the next court day.
When taken before a court of law, at the first court appearance, arrested persons have the right to be charged, informed of the reason for the continued detention, or to be released. Arrested persons also have the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons for their continued detention. Additionally, an arrested person shall be held separately from persons serving a sentence and shall not be remanded in custody for an offence punishable by a fine only or by imprisonment for not more than six months.
The Right to Fair Hearing
Once a party has been arrested and taken before a court of law, their right to fair hearing immediately kicks in. This is can be defined as the right to have the dispute resolved by the application of law in a fair and public hearing before a court of law. The right to fair trial, includes multiple rights within it which include; the right to be presumed innocent until proven guilty; to be informed of the charge in sufficient detail; to have adequate time and facilities to prepare a defence; to a public trial before a constitutionally established court; to have the trial begin and conclude without unreasonable delay; and to be present during the trial, unless their conduct makes it impossible for the trial to proceed.
An accused person also has the right to choose and be represented by an advocate and to be informed of this right promptly; to have an advocate assigned by the State at State expense if substantial injustice would otherwise result; to remain silent and not to testify during the proceedings; to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence; to adduce and challenge evidence; to refuse to give self-incriminating evidence; and to have the assistance of an interpreter without payment if they cannot understand the language used at the trial.
If either the accused person or the complainant is for any reason unable to communicate with the court, in the interest of justice, the court may allow an intermediary to assist in communicating with the court.
Rights of Persons Detained, Held in Custody, or Imprisoned
When a person is detained, held in custody, or imprisoned they still retain all the rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular right or freedom is clearly incompatible with their detention, custody, or imprisonment.
It is important to note that persons interested in a person who is arrested, detained or held in custody without being produced in a court of law at the first available court date, are entitled to petition for an order of habeas corpus which is a legal remedy requiring the police to produce the missing person and justify the legality of the detention before a court of law.
Conclusion
The rights of arrested persons are fundamental safeguards enshrined in the Constitution and statute to protect individuals from arbitrary detention and ensure fair treatment throughout the criminal litigation process. These rights uphold the principles of due process and human dignity and it is through adherence to them that a balance is struck between law enforcement objectives of maintaining public order and security and the preservation of civil liberties and human rights. The adherence to these rights is a key element to fostering a robust criminal justice system where the rights of all parties are protected and justice is available to all.
DATE: July 9, 2024, BY: ANNE GATHIRWA
For more insights pertaining to this matter, you can reach the writer at annegathirwalaw@gmail.com. You can also contact us at MMS Advocates, Lower Duplex Apartments, LOWER HILL ROAD, or email us at info@mmsadvocates.co.ke.