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High Court bans detention of crime suspects awaiting trial

By Kamau Muthoni | Published Tue, June 20th 2017 at 00:00, Updated June 19th 2017 at 21:40 GMT +3
Justice Luka Kiprotich Kimaru. He has ruled that current trend threatens to take the country back to dark days of detention without trial. [File,Standard]

The High Court has ruled it illegal for police to detain suspects for more than 24 hours under the excuse that they are conducting investigations.

The court yesterday declared the trend by police to seek court orders to detain suspects for further investigations without a formal charge in court illegal and against the Constitution.

It has become common for police to go to court within 24 hours to ask for permission to detain suspects for further investigations.

Justice Luka Kimaru ruled that all accused persons had a right to have their cases determined expeditiously.

He noted that if the current trend was allowed to thrive, the country risked plunging back into the dark days of detention without trial.

The ruling means investigators have only 24 hours to complete investigations. It also means that police can only arrest suspects when they are sure that they have enough evidence against them.

“The police have no authority in law to arrest and detain any person without sufficient grounds,” the judge ruled.

Flight risk

Almost every case where the State found itself with no evidence to push a charge, it asked the court to allow it to detain suspects for at least two weeks under the excuse of investigating them.

It is often argued that the accused person is a flight risk or is likely to interfere with the ongoing investigations.

But the judge found that every person has a right to live freely unless there are convincing reasons for the law to take away that freedom.

“It is unlawful for the police to seek to have a person who has been arrested to continue to remain in custody without a formal charge being laid in court. If this trend continues, it will erode all the gains made in the advancement of human rights and fundamental freedoms as provided for in the Bill of Rights since the Constitution was promulgated in August 2010,” said the judge.

The ruling came from a case filed by the athletics team manager for the Rio Olympics, Michael Rotich, after he was arrested at the Jomo Kenyatta International Airport over allegations of doping in the team.

On August 10, 2016, the prosecution requested the Chief Magistrate’s Court in Nairobi to have Mr Rotich detained for 28 days to enable police to conclude investigations.

The investigating officer said due to Rotich’s 40-year involvement in athletics management, he was likely to interfere with investigations.

The magistrate’s court agreed with the investigators but the accused went to the High Court on appeal. The judge ruled that the police could only move if they had evidence to charge Rotich.


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