Kenya

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EAST AFRICA CRIMINAL DEFENSE MANUAL

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LEGAL TRAINING RESOURCE CENTER

Background

Fossils found in Kenya reveal that early humans may have originated in the area as many as 20 million years ago.[1] Arab traders initially colonized present day Kenya around the first century AD, but were displaced by European explorers in 1498.[2] In 1895, Kenya was included in Britain’s East African Protectorate and eventually became a British colony in 1920.[3] From 1952-1959, Kenya was placed under a state of emergency due to the Mau Mau uprising against British rule.[4] This uprising among the Kikuyu people marked the beginning of greater African participation in politics.[5] On December 12, 1963 Kenya became an independent state and joined the British Commonwealth in 1964.[6] From 1969-1982, Kenya was a one-party state under the leadership of President Moi and the African National Union party.[7] Moi only ceded the presidency in 2002 when the country saw its first free and fair elections.[8] In 2007, Kenya experienced two months of political violence sparked by allegations of electoral fraud.[9] About 1,500 Kenyans were killed during this period of upheaval until UN talks eventually organized a power sharing government.[10]

Kenya is located on the mid-eastern coast of Africa, bordered by the Indian Ocean, Tanzania, Uganda, Sudan, Ethiopia, and Somalia. The capitol of Kenya is Nairobi and the official languages of the country are English and Kiswahili.[11] 22% of the population is of the Kikuyu tribe, 14% is Luhya, 13% is Luo, 12% is Kalenjin, 11% is Kamba, 6% is Kisii, 6% is Meru, 15% are from other African tribes, and 1% are non-African.[12] 45% of the population identifies as Protestant, 33% as Roman Catholic, 10% as Muslim, 10% have indigenous beliefs, and 2% adhere to some other form of religion.[13]

Type of System

Elements of Kenyan law are based on Kenyan statutory law, Kenyan and English common law, tribal law, and Islamic law.[14] The courts of Kenya are: the Court of Appeal, the High Court, and the Subordinate Courts. The highest court, the Court of Appeal, tries both civil and criminal cases. The Court is presided over by the Judges of Appeal who are directly appointed by the president. The High Court is presided over by High Court Judges who are also appointed by the president. The High Court has unlimited jurisdiction in civil cases, but only tries criminal cases involving murder and treason. The Subordinate Courts’ jurisdiction is determined by geographical and regional location; these courts are presided over by magistrates. The Subordinate Courts are comprised of Kahdi’s Courts, the Children’s Court, Tribunals, the Industrial Court, and Rent Tribunals.[15]


Source of Defendants’ Rights

The Kenyan Constitution guarantees defendants certain rights. Some of these rights include: the right to a fair trial, the right to counsel, freedom from torture, cruel, or degrading treatment, the right to freedom, and the presumption of innocence.[16]


Pre-Trial Phase

Arrest: The Constitution guarantees all individuals the right to freedom and security; Kenyan citizens may not be arbitrarily deprived of their freedom.[17] All arrests must be made with a warrant that conforms to Kenyan legal standards. The Kenyan Criminal Procedure Code outlines circumstances in which a police officer may make an arrest without a warrant.[18] The use of violence in making arrests is also forbidden and an officer can only use the amount of restraint necessary to prevent escape.[19] If these regulations are violated an arrest may be challenged. All individuals who are arrested must be brought before a court promptly.[20]

Detention: All those held in detention are guaranteed the fundamental rights awarded in the Kenyan Bill of Rights.[21] Kenyan law exercises two mechanisms in order to reduce pre-trial detention: the granting of bail and the requirement that a defendant be released immediately if he is not charged within the legal time limit. A defendant must be informed of the reason for the detention or be released by their first court appearance.[22] All defendants accused of non-serious crimes must be released on bail if it is not possible to bring them before a court within twenty-four hours of their arrest.[23]

Confessions: Confessions that are voluntarily made are admissible as evidence in court. A defendant has the right to remain silent[24] and no defendant should be forced to make a confession that may be used as evidence.[25] All defendants must be informed of their right to remain silent in a language that they understand.[26] Therefore, confessions may be inadmissible if the defendant was not notified of their right to silence, if the confession was obtained under torture, or if the confession was not made to an officer of sufficient rank.

Right to Counsel: A suspect must be informed of his right to counsel and be given the opportunity to communicate with an individual who may provide assistance or advocacy.[27]

Court Procedures

The Constitution guarantees the right to a fair trial.[28] Furthermore, all people have the right to be presumed innocent, to be informed of the charges brought against them, to have adequate resources to defend themselves, to have a public trial, to have a speedy trial, to be present at the trial, and to be informed of their right to counsel.[29] The Constitution also allows for the defendant to have access to evidence held by the prosecution, the rights to challenge the evidence, to refuse giving self incriminating evidence, to have an interpreter, and to appeal the decision.[30] The defendant has the additional right to confront witnesses and has access to evidence held by the prosecution. Both the Constitution and the Criminal Procedure Code protect defendants from double jeopardy.[31]

According to the principles of the International Covenant on Civil and Political Rights, all individuals must have a fair, public trial that is presided over by an independent judiciary. The Constitution further ensures that all judges have high moral character, integrity, and impartiality.[32]

Before a sentence is passed down, the defendant has the right to present the court with evidence of mitigating factors that may lead to a lesser sentence. Additionally, the Criminal Procedure Code allows for victim impact sentences to be made.[33]

Armed robbery, murder, and treason are the only crimes in Kenya that are punishable with the death sentence. Defendants who were under the age of eighteen at the time that the crime was committed cannot be given the death sentence. All defendants who are given the death sentence are entitled to be informed by the court of their right to appeal the sentence.[34] If the court does not notify the defendant of this right, this may provide the defense the grounds to have the sentence revoked.

All defendants are ensured a right to appeal.[35] However, the defendant only has the right to appeal when he has been convicted. He does not have the right to appeal if he pleaded guilty.


References

  1. US State Dep't., available at www.state.govr/pa/ei/bgn
  2. US State Dep't., available at www.state.govr/pa/ei/bgn
  3. US State Dep't., available at www.state.govr/pa/ei/bgn
  4. US State Dep't., available at www.state.govr/pa/ei/bgn
  5. US State Dep't., available at www.state.govr/pa/ei/bgn
  6. US State Dep't., available at www.state.govr/pa/ei/bgn
  7. Central Intelligence Agency, The World Factbook: Kenya. (May 17, 2011) https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html.
  8. Central Intelligence Agency, The World Factbook: Kenya. (May 17, 2011) https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html.
  9. Central Intelligence Agency, The World Factbook: Kenya. (May 17, 2011) https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html.
  10. Central Intelligence Agency, The World Factbook: Kenya. (May 17, 2011) https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html.
  11. Central Intelligence Agency, The World Factbook: Kenya. (May 17, 2011) https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html.
  12. Central Intelligence Agency, The World Factbook: Kenya. (May 17, 2011) https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html.
  13. Central Intelligence Agency, The World Factbook: Kenya. (May 17, 2011) https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html.
  14. Central Intelligence Agency, The World Factbook: Kenya. (May 17, 2011) https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html.
  15. http://www.nyulawglobal.org/globalex/Kenya
  16. Constitution (1992)(Kenya)
  17. Constitution, Art. 29(a)
  18. Crim. P. Code 29
  19. Constitution, Art. 29(c); Crim. P. Code 108
  20. Crim. P. Code 108
  21. Constitution, Art. 51
  22. Constitution, Art. 49
  23. Crim. P. Code 36
  24. Constitution, Art. 49
  25. Constitution, Art. 49(1)(d)
  26. Constitution, Art. 49(1)(d)
  27. Constitution, Art. 49(c)
  28. Constitution, Art. 50
  29. Constitution, Art. 50
  30. Constitution, Art. 50
  31. Constitution, Art. 50(2)(o); Crim. P. Code 138-142
  32. Constitution, Art. 166(2)(c)
  33. Crim. P. Code 329
  34. Crim. P. Code 330
  35. Constitution, Art. 50(2)(q)

See Criminal Justice Systems Around the World

QUICK FACTS

  • 43.4% of prisoners in Kenya are pre-trial detainees.
  • Prisons in Kenya are currently at 223.3 percent capacity.

Notes

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