|Police man handle a person they arrested in Mombasa during a Matatutu strike|
NAIROBI, KENYA: Has a police officer arrested you without clearly identifying himself and informing you the reason for the arrest in recent years? Well, the officer violated your constitutional rights and committed an offence in the process.
The National Police Service is once again in the spotlight as its officers continue to arbitrarily abuse their powers.
Despite Chapter 4 of the Constitution, among other laws, according members of the public a wide range of rights while in the hands of the police, most officers have overlooked the law, instead applying demeaning unwritten rules.
Ignorant of their rights, most members of the public subsequently remain at the mercy of the officers, to whose illegal tunes they vulnerably dance.
In an eye-opening judgment, Acting Principal magistrate Benson Nzakyo last week accused traffic police officers of fraudulently obtaining money from members of the public by charging towing fees. Nzakyo subsequently ordered the unconditional release of a car belonging to a lawyer, which had been detained at Kilimani Police Station over Sh8,500 towing charges.
In a scenario that many other Kenyan motorists may be familiar with, the lawyer was on the night of July 30 arrested just 500-metres away from the police station and, despite having a designated driver, the police opted to tow the vehicle to the station and subsequently imposed the charges.
The magistrate dismissed the charges as “illegal and unreasonable”, and “not backed by any written law”.
In reference to the Constitution, The Traffic Act as well as the National Police Service Act, and with the help of constitutional lawyer Martin Oloo, The Standard on Saturday looks at some of the ways in which the police have been circumventing the law.
Entering your car when you are suspected to have committed a minor traffic offence.
“That is pure intimidation and invasion of privacy often used as an avenue to extort money from motorists,” says lawyer Oloo. When a minor traffic offence has been committed, Section 117 (3) of the Traffic Act allows a police officer to serve the owner or the person in charge of the concerned vehicle with a police notification form charging such person with having committed the offence or offences indicated. The same can be affixed prominently to the vehicle. The suspected offender is to attend court to answer to the charge(s) within 48 hours or after seven days if the notification was affixed to the vehicle.
Confiscation of driving licences when motorists commit minor traffic offences.
Section 79(3) of the Traffic Act stipulates that a police officer can only demand and confiscate a driving licence when a person is charged with an offence under the Act for which the penalty shall include suspension, cancellation or endorsement of a licence, or disqualification for holding or obtaining the document. The officer is required to submit the licence to the court in which the charge is to be heard.
Ordering innocent commuters out of Public Service Vehicles (PSVs).
Oloo states that if the vehicle is roadworthy but the crew has committed an offence, the driver should pay a fine on the spot, or be issued with a ticket to appear in court, but passengers should never be inconvenienced, unless they are excess passengers or have for instance not buckled their seat belts.
Smashing the windscreens of vehicles.
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Under Section 1(s) of the Eighth Schedule of the National Police Service Act, it is an offence for an officer to commit any act of plunder or wanton destruction of any property.
Towing away your vehicle and forcing you to pay towing charges.
“If the police tow away your vehicle without your consent when you can be able to lawfully and safely drive it, do not pay for this illegal service,” advises Oloo. Section 106 of the Traffic Act stipulates that a vehicle be moved to a safe place if it is in use on a road in contravention of the provisions of the Act, or if found abandoned on a road where it endangers other road users, but where the driver cannot be readily found. Any expense incurred in moving such a vehicle is payable by the owner.
Arresting patrons consuming alcohol in unlicensed bar:
According to the Alcoholic Drinks Control Act, it is only the owner of the premises who can be held liable. Section 37 of the Act states that if any person purchases any alcoholic drink from a licensee whose licence does not cover the sale of that alcoholic drink and consumes it in or near the premises, the licensee who sold the alcoholic drink commits an offence if it is proven to the court that he/she was aware or consented to the consumption.
Arrest without being informed why you are being detained.
According to Article 49 (1) of the Constitution, an arrested person has the right to be informed promptly, in a language that he/she understands, the reason for the arrest, the right to remain silent and the consequences of not remaining silent.
Denial of access to family members and medical services.
Under the Fifth Schedule of the National Police Service Act, a detained person shall have the right to inform family members of the arrest, detention, place of detention and receive visits from relatives subject only to reasonable conditions and restrictions (when exceptional needs of the investigation so require). He/she also has the right to access doctors and general medical assistance when required.
Being held in a police station for more than a day.
The law clearly states that a person should be brought before a court not later than 24 hours after the arrest, and if these hours end outside ordinary court hours, then not later than the end of the next court day.
At the first court appearance, the person should be charged or informed of the reason for the detention continuing, or be released.
Held in custody as police conduct investigations.
According to Oloo, unless under special circumstances, the police should release any suspect in whose case they are yet to conclude investigations on a free bond until they have solid evidence against him/her.
Incarceration for minor ofences.
In reference to Article 49 (2) of the Constitution, Oloo says no person should be remanded in custody for an offence that is punishable by a fine only, or by imprisonment for not more than six months.
Recording of a police statement.
Under Section 52 of the National Police Service Act, a police officer shall warn the person writing a statement that any statement which may be recorded may be used as evidence in court.
Physically or psychologically torturing suspects.
According to Article 25 of the Constitution, freedom from torture as well as cruel, inhuman or degrading treatment or punishment are among rights and fundamental freedoms that shall not be limited despite any other provision in the Constitution. Article 28 outlines that every person has inherent dignity and the right to have that dignity respected and protected. The Eighth Schedule of the National Police Service Act also deems it an offence for a police officer to unlawfully strike or either use or threaten violence against a police officer or any other person.
Searching your home without a warrant
According to Article 31 of the Constitution, every person has the right to privacy, which includes the right not to have their person, home or property searched, or their possessions seized.