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Pretrial detention of suspects risks subverting justice

By Ndung'u Wainaina | Feb 7th 2019 | 4 min read

CJ David Maraga addreses press at Milimani Courts acompanied by other judges. He said that judiciary is not an impediment in the fight against corruption. [Georgte Njunge / Standard]

The Judiciary derives its judicial authority from the people. It interprets the Constitution “in a manner” that promotes its purposes, values and principles; advancing the rule of law, human rights, contributes to good governance and fundamental freedoms as stipulated in the Bill of Rights. In exercising its judicial authority, the Judiciary is obliged under the Constitution to protect and promote the purpose and principles of the Constitution.

Judiciary is condoning an emerging trend where an individual is arrested, is brought to court and before being charged, the prosecution requests for the suspect to be placed under police custody for some time to enable them (police) complete their investigations. The right to liberty and freedom is a fundamental right that is inherent to every human being.

Courts are under duty to jealously protect the right to liberty and freedom. A court must make certain determinations before ordering pretrial detention. The court has an obligation to determine there is probable cause to believe the accused committed the crime upon evaluating the veracity of preliminary evidence tabled by both the investigation and prosecution teams.

Kenya has a very scary history and experience of detention without trial and police state. The emerging trend of pretrial detention is grave betrayal of constitutional values. It is the worst travesty of justice. Not surprisingly, it is the poor who make up the vast majority of those held in pretrial detention and/or are extra-judicially killed. The poor are more likely to come into conflict with the law; more likely to be detained pending trial and less able to afford the terms for pretrial release. The result is a horrific waste of human life.

The right to liberty and freedom can only be curtailed in circumstances provided for under the Constitution. The Constitution imposes the duty upon the State and all the State organs including the Judiciary “to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.”

Pre-trial detention undermines the chance of a fair trial and the rule of law in a number of ways. The majority of people who come into contact with criminal law know little about their rights. Though they are legally presumed innocent until proven guilty, they end up being held in conditions that are worse than those of convicted prisoners – and sometimes for years on end. People in pre-trial detention are particularly likely to suffer violence and abuse. High rates of pre-trial detention are also contributing to overcrowding in prison heightening the risk of torture and ill-treatment. The pre-trial stage of the criminal justice process is also particularly prone to corruption.

Exception not the rule

Pre-trial detention has a hugely damaging impact on defendants, their families and communities. Even if a person is acquitted and released, they may still have lost their home and job. They face the stigma of having been in prison when they return to the community. Because of its severe and often irreversible negative effects, international law states that pre-trial detention should be the exception rather than the rule and that if there is a risk, for example, of a person absconding, then the least intrusive measures possible should be applied

However, in Kenya, pre-trial detention continues to be imposed systematically on those suspected of a criminal offence without considering whether or not it is necessary, proportionate, or whether less intrusive measures could be applied. This overuse of the pretrial detention of suspects must end.

The Constitution requires any arrested person to be promptly informed in a language that he understands the reasons for the arrest. The dangerous trend where a person is arrested and arraigned in court within 24 hours specifically for the prosecution to seek extension of time to continue to detain such persons, without any charge or holding charges being preferred against them is unconstitutional.

The police have no authority in law to arrest and detain any person without sufficient grounds. Those grounds can only be sufficient if the police have prima facie evidence which can enable charges against such persons be undertaken with a disclosed offence. The prosecution can come up with a holding charge setting out the offence the accused faces. It will not do any good for the prosecution to present a person who has been arrested in court and seek his continued detention.

Mr Wainainia is the Executive Director, International Center for Policy and Conflict, @NdunguWainaina


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