EAST AFRICA CRIMINAL DEFENSE MANUAL
LEGAL TRAINING RESOURCE CENTER
Fossils found in Kenya reveal that early humans may have originated in the area as many as 20 million years ago (US State Department, available at www.state.govr/pa/ei/bgn). Around the first century, Arab traders initially colonized present day Kenya, but where displaced by the first Europeans explorers in 1498 (US State Department). In 1895, Kenya was included in Britain’s East African Protectorate and eventually became a British colony in 1920 (US State Department). From 1952-1959, Kenya was placed under a state of emergency due to the Mau Mau uprising (US State Department). The uprising against British rule took place among the Kikuyu people and marked the beginning of greater African participation in politics (US State Department). On December 12, 1963 Kenya became an independent state and joined the British Commonwealth in 1964 (US State Department, available at www.state.gov/pa/ei/bgn). From 1969-1982, Kenya was a one-party state under the leadership of President Moi and the African National Union party (CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook). Moi only ceded the presidency in 2002 when the country saw its first free and fair elections (World Factbook). In 2007, Kenya experienced two months of political violence sparked by allegations of electoral fraud (World Factbook). Around 1,500 Kenyans were killed and UN talks eventually organized a power sharing government (World Factbook). The capitol of Kenya is Nairobi and the official languages of the country are English and Kiswahili (World Factbook). 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 (World Factbook). 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 (CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook).
Type of system
Elements of Kenyan law are based on Kenyan statutory law, Kenyan and English common law, tribal law, and Islamic law (CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook). The courts of Kenya are: the Court of Appeal, the High Court, and the Subordinate Courts. The Court of Appeal is the highest court and 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 High Court Judges who are also appointed by the president. The High Court has unlimited jurisdiction in civil cases, but only tries criminal cases of murder and treason. The Subordinate Courts’ jurisdiction is determined by geographical and regional location and the 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 (http://www.nyulawglobal.org/globalex/Kenya)
Source of defendants’ rights
The Kenyan Constitution guarantees defendants certain rights. For example, the Constitution guarantees 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.
Article 29(a) of the Constitution states that all individuals have the right to freedom and security and may not be arbitrarily deprived of their freedom. All arrests must be made with a warrant that conforms to Kenyan legal standards. Section 29 of the Kenyan Criminal Procedure Code outlines circumstances in which a police officer may make an arrest without a warrant. Article 29(c) of the Constitution forbids the use of violence in making arrests. The Criminal Procedure Code states that only the amount of restraint necessary to prevent escape is allowed during an arrest. An arrest may be challenged, therefore, if these regulations are violated. Section 108 of the Criminal Procedure Code states that all individuals who are arrested must be brought before a court promptly.
Article 51 of the Constitution states that all those held in detention are guaranteed the fundamental rights awarded in the Kenyan Bill of Rights. 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. Article 49 of the Constitution states that a defendant must be informed of the reason for the detention or be released by their first court appearance. Section 36 of the Criminal Procedure Code provides that 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.
Confessions that are voluntarily made are admissible as evidence in court. Article 49(1)b of the Constitution states that a defendant has the right to remain silent and Article 49(1)d states that no defendant should be made to make a confession that may be used as evidence. Article 49(1) says that all defendants must be informed of their right to remain silent, in a language that they understand. Therefore, confessions may be admissible if the defendant was not notified of their right to silence, if the confession was obtained under torture, and if the confession was not made to an officer of sufficient rank.
Article 49(c) of the Constitution states that 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.
Article 50 of the Constitution guarantees the right to a fair trial. The article further outlines that all 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. Furthermore, the Constitution 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.
Article 50(2)(o) of the Constitution and Sections 138-142 of the Criminal Procedure Code protect defendants from double jeopardy. Article 50(2)a of the Constitution guarantees that a defendant is presumed innocent until proven guilty. Article 50(1)(k) of the Constitution provides that all have the right to offer or challenge evidence. The defendant has the additional right to confront witnesses and has access to evidence held by the prosecution.
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. Article 166(2)(c) of the Constitution further ensures that all judges have high moral character, integrity, and impartiality.
Before a sentence is passed down, Kenyan gives the defendant the right to present the court with mitigating factors that may lead the court to deliver a less harsh sentence. Section 329 of the Criminal Procedure Code additionally allows for victim impact sentences to be made.
Armed robbery, murder, and treason are the only crimes in Kenya that are punishable with the death sentence. Defendants that were under the age of eighteen at the time that the crime was committed cannot be punished by the death sentence. All defendants who are given the death sentence are entitled by Criminal Procedure Code Section 330 to the right to be informed by the court of their right to appeal the sentence. If the court does not notify the defendant of this right, this may provide the defense the grounds to have the sentence
All defendants are ensured the ability to appeal a sentence by Article 50(2)(q) of the Constitution. The defendant only has the right to appeal, however, when he has been convicted and does not have the right to appeal if he pleads guilty.
- 43.4% of prisoners in Kenya are pre-trial detainees.
- Prisons in Kenya are currently at 223.3 percent capacity.
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