NAIROBI,Kenya – The purpose of Article 49 of the Constitution is to ensure that both the suspected offender and the arresting officer adhere to the principles of the rule of law. It is crucial to recognize the importance of the social contract between citizens, the public, and governance institutions.
Policing agencies must understand that they operate under delegated powers and must avoid any form of abuse. This is especially relevant for the National Police Service, which has the objective of complying with constitutional standards concerning human rights and fundamental freedoms, as outlined in Article 244, Clause (c).
Article 49 outlines the rights of individuals who have been arrested and highlights a stark contrast in the history and development of policing in Kenya. It acknowledges a brutal and shameful colonial past characterized by unchecked impunity.
At the same time, it embodies a democratic vision for policing, emphasizing equality, the rule of law, non-discrimination, and the ongoing promotion of dignity, safety, and human rights. By adhering to Article 49 during arrests, law enforcement officers bring to life the principles found in Articles 27, 28, 29, 48, and 50.
Before an arrest can be made, several legal requirements must be fulfilled. A complainant’s report and witness statements are compiled in an investigation file. An investigating officer is responsible for documenting, collecting, and corroborating evidence related to the alleged offense. This file is then sent to the Office of the Director of Public Prosecutions (ODPP) for review and advice, as they have the authority to decide whether to bring charges.
If the evidence meets the prosecutorial threshold, an arrest is procured as per constitution’s Article 49. This means that when an individual is arrested, the officer must inform them of the offense they are suspected of committing. The information should be communicated in a language that the arrested person understands. Additionally, the arrested individual must be advised of their right to remain silent. If they choose to speak, they should be informed of the potential consequences of their statement.
There are legally acceptable procedures that an arresting officer must follow when handling a suspect. The officer is authorized by law to subdue the individual they are attempting to arrest. It is generally expected that the suspect will comply with the police officer’s authority, who is required to identify themselves as a legitimate member of law enforcement.
The law permits the officer to use a reasonable amount of force if the suspect does not comply. This may happen if the suspect resists arrest, attempts to escape, or if the officer believes their life is in imminent danger. Once detained at a legally recognized facility, the suspect has the right to contact an advocate or anyone else who can assist them.
When an individual is arrested and taken to a police station, their information must be recorded in the Occurrence Book (OB). This entry should include the individual’s name, address, and the offense they committed, along with a unique tracking reference called the OB number.
As part of the detention process, and with assistance from the police, the arrested person will provide a statement detailing the events related to the crime. Depending on the nature of the alleged offense and the officer’s assessment, the accused may be eligible for release on police bond or cash bail. This allows them to return home or to an approved residence while preparing to attend court within 24 hours of their arrest.
The principle of a fair hearing must be upheld in court. A key aspect of this principle is the presumption of innocence, which means that everyone involved, litigants, lawyers, prosecutors, judges, magistrates, clerks, and members of the public should believe that the accused is innocent until proven guilty based on evidence and the credibility of the claims made against them, as stated in Article 50, Clause 2, paragraph (a).
Furthermore, the court must inform the suspect of the specific crime they are accused of by reading the charge aloud. This charge must be clear and explicitly outline the offense being prosecuted. At this stage, the accused must enter a plea, indicating whether they are guilty or not guilty.
If the suspect pleads not guilty, a hearing date will be assigned, along with subsequent mention dates. Additionally, during the plea-taking process, the suspect may request bail or a bond from the court, which allows them to seek justice while not remaining in police custody. If the suspect had previously posted a police bond or cash bail at the police station, that amount will be refunded, and its effect will end at this time.
The writer Eric Mukoya, is the Executive Director ICJ Kenya. This article was first published on the Daily Nation.