Basic Legal Rights in Kenya
Rights/ Protections from Police
The right not to have one’s freedom curtailed without a justifiable case is guaranteed by Article 29 (a) of the Constitution, which provides that every person shall have the right to freedom and security and shall not be deprived of freedom arbitrarily and without just cause. Since an arrest amounts to a curtailment of a person’s freedom, a lawful arrest is that which is founded on a justifiable cause.
An arrest is lawful if it is made pursuant to a valid arrest warrant. For a warrant of arrest to be lawful, it must conform to the standards set forth under the law. In Kenya, the law governing the form, content and manner of execution of a valid warrant are to be found in Section 102 through to Section 109 of the CPC.
An arrest without a warrant is allowable only on grounds listed in the CPC. Instances when a police officer, a private person or a magistrate may make an arrest are outlined in Section 29. In the exercise of the power to make an arrest, the use of violence by both public and private sources is prohibited, Article 29(c) of the Constitution. Further, the CPC allows the use of only that amount of restraint that is necessary to prevent escape (Section 24). Thus, the validity of an arrest without a warrant may be challenged if the ground for arrest falls outside those expressly listed in the CPC or if the arrest is effected by the application of unjustifiable force.
Confessions and the right to remain silent
Section 25 of the Evidence Act defines a confession as ‘words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence” If made voluntarily, the confession is deemed admissible as evidence. To protect the accused against any adverse outcome due to forced confessions, the law provides safeguards to ensure that confessions are made willfully and with full knowledge that the exercise of the right to remain silent does not amount to an admission of guilt.
By virtue of Article 49 (1)(b), the right to remain silent gives an arrestee the right to refuse to answer questions posed by police officers. Further, Article 49 (1)(d) of the Constitution states that an arrested person shall not be compelled to make any confession or admission that could be used in evidence. In the same token the use of any means aimed at compelling the arrested person to make a confession is prohibited and an involuntary confession is inadmissible. (See also, Section 26 of the Evidence Act.)
At the time of an arrest, the arrestee may not be aware of his right to remain silent. Furthermore, even if the accused is aware, he may be too distraught to exercise it at the opportune time. To safeguard against the right of the arrestee in such circumstances, the Constitution goes further to state that the right to remain silent shall be communicated to the arrestee promptly in a language that the person understands. See, Article 49 (1). Thus, admissibility of evidence obtained through a confession may be challenged on grounds that:
- the right to remain silent was not communicated to the accused person promptly and in a language that he/she understands
- the confessions was obtained by the use of torture or threat to use force.
- the confession sought to be introduced as evidence was made not made to an officer of a rank, (See Section 29 of the Evidence Act.)
Right to Counse
An arrestee’s pretrial right to counsel is to be informed promptly of his right to counsel, and be afforded the opportunity to communicate with an advocate or other persons whose assistance is necessary (Article 49 (c).
A person charged with a crime is entitled to be released on bail pending trial in most cases. Bail is a mechanism used to ensure the attendance to court by an arrested person. As an alternative to bail, the accused may be released on his own recognance in circumstances.
Article 49(1) (h) of the Constitution provides that an arrestee has the right to be released on bond or bail on reasonable conditions pending a charge or trial. Under Kenyan law, an arrested person can be granted bail either by the police or the court. The right to bail is not absolute. According to Section 123 (1) of the CPC, a person accused of murder, treason, robbery with violence, attempted robbery with violence and any related offence is not entitled to bail. The accused person’s right to bail also includes the right not be required to provide excessive bail.
In exercise of its discretionary power, the High Court may direct that an accused person be granted bail or that bail set by a subordinate court or a police officer be reduced, (see, Section 123 of the CPC).
In cases where the amount of bail is excessive, the advocate for the accused may make a motion for the reduction of the bail amount. Alternatively, he can make a motion for the accused to be released on his own recognizance. To increase the chances of being released on his own recognance, counsel for the accused should investigate and bring forth all evidence that presents the accused in the best possible light.
Rights During Detention
Rights of persons detained, held in custody or imprisoned
Article 51 of the Constitution provides that “A person who is detained, held in custody or imprisoned under the law, retains all the rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular right or a fundamental freedom is clearly incompatible with the fact that the person is detained, held in custody or imprisoned”
Freedom from prolonged pre-trial detention
The law puts in place mechanisms that ensure that a defendant is not subjected to unlawful pre-trial detention. These mechanisms include: (i) the granting of bail and, (ii) the requirement that the defendant be released promptly, if he/she is not charged within the time prescribed under law.
By virtue of Article 49 of the Constitution a defendant is to be charged or informed of the reason for the detention continuing, or to be released at the first court appearance. Similarly, Section 36 of the CPC provides that a person who is charged with a non-serious offence (i.e, all offenses other than murder, treason , armed robbery and attempted armed robbery) shall be released on bail if it is impracticable to bring him/her before an appropriate subordinate court within twenty-four hours after he has been so taken into custody,
Following an arrest with a warrant, the police officer or other official executing the warrant is required to bring the person arrested before the court without unnecessary delay. (See, section 108 of the CPC). In cases where a person is arrested without a warrant, Section 123 of the CPC requires that the person shall be granted bail or released upon executing a bond.
Right to Counsel
Parliament shall enact legislation that: (a) provides for the humane treatment of persons detained, held in custody or imprisoned; and (b) takes into account the relevant international human rights instruments
The Constitution grants an unlimited right to an order of habeas corpus, Art. 25, Art. 51(2). The procedure governing the application and issue of an order of habeas corpus are set out in the Criminal Procedure Code Sec. 389 and the accompanying Rules. Under the CPC, the High Court may, in exercise of its supervisory powers, order that any person illegally or improperly detained in public or private custody be set at liberty. For an order to issue, the applicant must “show cause and demonstrate that other ordinary remedies are either inapplicable or inadequate” (See, Paul Mburu Kamau & Another V Provincial Criminal Investigation Officer, Coast Province & Another  eKLR)
Rights at Trial
Right to a Fair Trial
The right to a fair trial is guaranteed under Article 50 of the Constitution. The right incorporates many procedural guarantees given to the accused in criminal proceedings. The guarantees enumerated in Article 50 of the Constitution are the right: a) to be presumed innocent until the contrary is proved; b) to be informed of the charge, with sufficient detail to answer it; c) to have adequate time and facilities to prepare a defense; d) to a public trial before a court established under this Constitution; e) to have the trial begin and conclude without unreasonable delay; f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed; g) to choose, and be represented by, an advocate, and to be informed of this right promptly; h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise i) result, and to be informed of this right promptly j) to remain silent, and not to testify during the proceedings; k) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence; l) to adduce and challenge evidence; m) to refuse to give self-incriminating evidence; n) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial; o) not to be convicted for an act or omission that at the time it was committed or omitted was not—an offence in Kenya; or a crime under international law; p) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted; q) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and r) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.
The double jeopardy provisions protect an accused from being tried again on the same or similar charges following an acquittal or conviction. The principal is embodied in Article 50(2)(o) of the Constitution and the Criminal Procedure Code, Sections 138-142.
However, by virtue of Section 139 through Section 141 of the CPC, a person may be charged and tried again: a. for a separate offence arising from the same set of facts as those of the crime for which the accused was previously convicted or acquitted. b. for consequences which arise after a conviction or acquittal, if they were not known at the time of conviction or acquittal. c. if the court that tried the accused in the first instance was not competent to try the offence for which he is subsequently charged.
The principle of legality affords to the accused person the right to be tried and punished only in accordance with an existing law. This principle is set forth in Article 50(2)(n) of the Constitution. It enjoins the State from punishing an act or omission, which was not an offence under Kenyan Law or International laws at the time of the commission or omission.
Acts or omissions that constitute crimes in Kenya are defined in the Penal Code. For an act or omission to be charged and tried as a crime, the prosecution must be prepared to present evidence proving the existence of each of the elements of the crime. Consequently, a person cannot be punished under a law that:
- criminalizes conduct that was not criminal at the time it was committed
- increases the punishment for a crime after its committed
- decreases the amount of evidence needed to convict
- that has not been publicized or that is unclear.
Presumption of Innocence
An accused person enjoys the right to be presumed innocent until the contrary is proved, see, Article 50 (2)(a) of the Constitution. The presumption places upon the government the burden of proving each element of the offense beyond a reasonable doubt. Thus evidence tending to prove some elements of an offence will not be a basis for a finding of guilt. At the time when the prosecution closes its case, if it becomes clear that the evidence presented does not show that the accused proved an offence, counsel for the accused may make a motion requesting for a dismissal, see, Section 306 (1) of the CPC.
Right to Confront Witnesses
The right to confront witnesses is a fundamental right essential to a fair trial. It is provided under Article 50(1)(k) of the Constitution, which confers upon an arrested person the right to adduce and challenge evidence. Essentially, evidence will be admitted if given by a witness who is present in court and the defendant gets the opportunity to cross-examine him/her. Thus, hearsay evidence is excluded unless it falls under any of the exceptions recognized under law.
The right to confront witness also incorporates the right sufficient discovery of the persons who the prosecution intends to call as witnesses to enable the defense to prepare to challenge such witnesses in court.
Right to Compulsory Process
In practice, the right to confront witnesses also includes the right to compel the appearance of material witnesses. By virtue of Section 144 and 145 of the CPC a court may, on its motion, issue a summons compelling a person to appear and testify, or to produce documents in his custody. If the witness refuses to comply with the summons, the court may issue a warrant directing that the witness be brought before the court to testify.
A court may also issue a warrant to compel the attendance of a witness on the strength of evidence given under oath. See section 146 of the Constitution.
Right to Counsel
In view of the ever present danger of adverse consequences in cases where a defendant is unrepresented, Article 50(2) of the Constitution guarantees the right to counsel. The right to counsel includes: the right of an accused to be represented by an advocate of his choice; the right of the accused to be informed promptly of his right to counsel; the right to have counsel assigned by the State at the State’s expense. Prohibitive costs of using the system and lack of affordable legal representation are to of the main impediments to accessing justice. Article 48 of the Constitution provides that where payments of fees is required, the fees shall be reasonable so as access to justice is not impeded.
Even though, Article 48 of the Constitution obliges the State to ensure access to justice for all persons, under Article 50(2)(h), the right to counsel at the expense of the State is only available if substantial injustice would otherwise occur. A determination on what would constitute substantial injustice will be decided by courts.
Right to Notice of Charges
According to Section 89 of the CPC, criminal proceedings are instituted either by making of a complaint or by bringing before a magistrate of a person who has been arrested without warrant. After a complaint is properly made, a charge is drawn by a police officer or magistrate. As an essential component of a fair trial, the defendant is entitled, by virtue of Article 50(2) (b) of the Constitution, to sufficient notice of charges brought against him with sufficient detail to enable him to answer.
The Rules for the framing of charges are outlined in Section 137 of the CPC. For a charge or information to constitute sufficient notice it must contain a statement of the specific offence or offences with which the accused person is charged and such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.
Failure to disclose an offence recognized under law will result to the dismissal of the charge. Section 89(5) the Criminal Procedure Code grants power to the magistrate to refuse to admit such a complaint or formal charge. Additionally, at the arraignment stage for trials before the High Court, an information that fails to state an offense which the accused had notice shall be quashed, Section 276 CPC.
Right to Non Self-Incrimination
A defendant in criminal proceedings has the right to refuse to give testimony that would incriminate him/her in the present trial or a subsequent trial. If questions seeking to elicit incriminating evidence are raised during trial, counsel for the accused must raise timely objections to prevent any response that may have a prejudicial effect against the defendant.
Right to a Speedy Trial
The right to a speedy trial is aimed at ensuring that an accused is not subjected to lengthy periods of incarceration before trial begins. The right is guaranteed under Article 50(2)(e) of the Constitution, which states that an accused person is entitled to have the trial begin and conclude without unreasonable delay.
Right to Impartial Judge
Article 14 of the International Covenant on Civil and Political Rights (ICCPR),1 provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” As a component of a fair trial, the Constitution, in Section 50 grants the defendant he right to have his case resolved by a court or another independent and impartial tribunal or body. Additionally, persons appointed to serve as judges must have a high moral character, integrity and impartiality Article 166 (2)(c).
If it comes to the attention of defense counsel that the judge or magistrate is not neutral, he/ she may make a motion for the judge or magistrate to recuse himself. Impartiality of a judge of magistrate may also form grounds for an appeal.
The judge may consider the following factors at sentencing in Kenya:
- Whether the accused is a first offender or repeat offender
- Whether the offender was principal offender or an accessory
- Subjective factors relating to the defendant that may have a bearing to the nature of the crime such as upbringing.
- Whether there are aggravating factors such as the degree of cruelty to the victim, whether the defendant was vindictive and so on.
- Relevant factors brought to the light of the court from victim impact statements given under Sec 329A of the CPC.
Types of sentences
Under Chapter IV of the Penal Act a judge or magistrate can pass any of the following sentences where the law allows:
- imprisonment for a specified period of time or to life, with or without hard labor;
- community service;
- payment of compensation;
- providing security to keep the peace and be of good behavior;
- any other punishment provided by this Code or by any other Act.
The CPC also provides an addendum in the form of a table that outlines specific sentences available for specific offences.
Before a sentence is passed the accused person is usually granted an opportunity present mitigating factors. This is a very important stage of the trial process, which affords the defendant an opportunity to present reasons that may have the effect of lessening of the punishment. It is important to note that an omission by the court to ask for mitigating factors shall have no effect on the validity of the proceedings. (see, Section 323, CPC). Section 329 of the CPC grants discretion to the court to consider victim impact statements before sentencing. Such statements are allowed in cases where the offence results in the death of or actual physical bodily harm.
Considering the effect that the victim impact statements may have on the sentence, it is crucial for counsel of the accused to be vigilant and prepared to present factors that shall have be most favorable to defendant’s case even in cases where the court fails to ask.
The death Sentence
Armed robbery, murder and treason are the only crimes under Kenyan laws that are punishable by death. A defendant who was under the age eighteen years at the time of the commission of a crime for which the death sentence is available cannot be punished by death. Instead, the defendant is held detained for an indefinite period usually determined by the executive. (See, Section 25 of the Penal Code) Similarly, where the defendant is a pregnant woman, the death sentence is commuted to life imprisonment. (See, Section 211 of the Penal Act.)
Given the severity of the death sentence, the defendant will almost always lodge an appeal. To ensure that the defendant’s right to appeal in not jeopardized, the law places a duty on the sentencing court to inform the defendant of the time within which an appeal against the sentence can be lodged. CPC, Sec. 330. Failure to do so may be a ground for an appeal to have the sentence quashed.
The president plays a crucial role in the procedure relating to death sentences. Once a defendant is sentenced, the president may issue a death warrant, or an order for the sentence of death to be commuted, or a pardon,
Even though the death sentence is still available under the laws of Kenya, there has been a move towards abolishing it. In August 2009, President Mwai Kibaki commuted the sentences of the 4,000 people on death row to life imprisonment. This is seen as move toward abolishing the death sentence all together.
Ex Post Facto Punishment
An Ex post facto law is a law that:
- Criminalizes an act or omission that was legal at the time of commission or omission.
- Increases the punishment for a crime after its committed
- Decrease the amount of evidence needed to convict
Under Kenyan law, the Constitution grants an accused person protection from being punished for an act or omission which was not a crime under the laws of Kenya and International law, at the time of commission. See Article 50(2)(n) of the Constitution. Additionally, if the prescribed sentence has been changed between the time the offense was committed and the time of sentencing, the defendant is entitled to the more lenient.
Freedom from torture, and Cruel or Unusual Punishment
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as an act “by which severe pain or suffering, whether mental or physical, is intentionally inflicted on a person...by or at the instigation of or with acquiescence of a public official or other person acting in an official capacity.” (Article 1)
Kenya is one of the signatories of the Convention Against torture. The Constitution of Kenya embodies the standards set forth in the Convention. Under Article 25, freedom from torture and cruel, inhuman or degrading treatment or punishment is unlimited. Further, Article 29 (f) states that no person shall be treated or punished in a cruel, inhuman or degrading manner. This means that the prohibition is absolute and torture cannot be justified under circumstances.
Right to Appeal
An accused person’s right to a fair trial, which includes the right to appeal if convicted, or apply for review by, a higher court as prescribed by law. (Article 50:2q of the Constitution). The right of the accused to appeal only arises when the out come of the trial is a conviction. The accused had the right to be informed of his right to appeal where he/she has been convicted of death. Under Section 348 of the CPC, the defendant has not right to appeal a conviction resulting from his/her guilty plea.
Order of appeal: A defendant can appeal against judgments rendered by courts of the first and second class to the high court. An appeal from subordinate courts to the high court must be lodged within the time prescribed by law, which is 14 days from the date of the judgment order or sentence appealed against. An appeal may be allowed after the specified time if the appellant demonstrate good cause as to why the appeal was not lodged in time (see, Section 349of the CPC).
The defendant may lodge an appeal against a High Court judgment in the Court of appeals. An appeal to the Court of Appeal is only limited to questions of law. The defendant may appeal from the Court of Appeals to the Supreme Court, which is the highest court. (see, Article 163 of the Constitution).