Keep terror suspects' identities secret

NAIROBI: Two weeks ago Kenyans woke to Sunday morning breaking news that three suspected female terrorists had attacked a police station in Mombasa.

The news media was awash with condemnation and the girls were even shot dead under circumstances that are not yet clear.

A video image circulating later on social media and posted on the website of a major newspaper showed a different story. Stories that later emerged suggested that probably the girls were innocent and their death was unfortunately a case of extra judicial killing.

Besides that, the police were very quick making their identities known even before meaningful investigations were done. This incident is an example of how revealing identities of suspects can be dangerous.

Even though in the Mombasa incident the suspects were killed, their family members and other close associates could become victims of stigmization. In this column I want to address the issue of revealing a suspects identity before indictment.

Reporting restrictions should be imposed to prevent the routine naming of suspects by police until they have been charged.

In Kenya there is the habit of the media and law enforcement agencies revealing the identities of suspects.

This sometimes has severe consequences for the suspects if proven innocent. Figure this out; recently a suspect was charged with defilement of a minor.

Upon being released on bond he refused to leave the police cells because he was afraid for his life. His image had been splashed all over through the electronic, social and print media.

Afterwards there was word that the case was about business rivalry between two schools. I cannot confirm whether this is true, but the bottom line is premature revelation of the identity of a suspect can have severe consequences for the safety of the individual concerned.

Of course sweeping powers held by the police to keep those arrested secret can also be dangerous and might encourage extra-judicial activities.

The law that ensures relatives of arrested suspect are informed and given access to the suspect must be strengthened. Under Article 50(2) of the Constitution the accused will at all times be presumed innocent until proven guilty by a court of law.

The revelation of identity of the accused violates this constitutional right. The court of the public opinion is likely to condemn a suspect to guilt and deny such a person the due process of the law.

Once the name and the physical identity of the accused become public, the honour and integrity of such a person becomes permanently damaged.

The problem is that members of the public strongly believe that the suspect is guilty, even though they have no evidence to justify that. Some of these people then send threats to the suspect, damage their property or other things.

And when the suspect is found innocent they probably don’t believe it and hurt or kill the suspect, because they believe he deserves it.

Suspects also find it hard applying for a job, simply because their names are linked to a specific crime, even though no guilt was established.

The suspect will always have to justify himself or herself for being accused; this is thus the danger of revealing their names to the public.

In Kenya, members of the public have the habit of lynching a suspected thief or inflicting serious injuries. A good argument for concealing identity often raised is that under the principle of the presumption of innocence, suspects should not be treated like criminals.

However, the true purpose of this principle is to reinforce and increase the duty of the law enforcement agencies to prove the guilt of the person accused. Its purpose is not to treat the accused in exactly the same way as a regular citizen.

Though this is a fine line and must not be abused, in cases of extremely violent and dangerous suspects, a slightly different attitude must be taken and the information released.

Some argue publication could help prevent crime. Even if the publication of identities were delayed until the judgment stage in a case, the public might receive a better balance of information on the accused that would minimise the prejudicial effect a naked accusation has over time, and yet still shame those found guilty and still have the same chilling effect on would be criminals.

In the US the defendant’s right to a fair trial is very important and sometimes the court changed the trial venue to a location where the publicity was unlikely to have prejudiced the jury. But Kenya is only slightly larger than an average American state.

The venue options are significantly limited, and the publicity is more likely to impact the entire nation. Prejudicial publicity before the trial may deny a defendant due process.

This has potential danger not just to the innocently accused but to the public if such prejudice later causes a court on appeal to overturn a conviction of a truly guilty criminal for lack of due process.