International Center for Policy and Conflict (ICPC) is deeply concerned with emerging trends by Kenya Judiciary to subject suspects to pre-trial detention. The ease with which Kenya courts are detaining suspects of offences is a cause for concern from a rule of law and human rights. It is common for courts to permit pre-trial detention of suspects for as many as 30 days before they can formally plead to a charge, ostensibly to allow investigators to conduct “further investigations”.
Even more appalling is that extensions are granted when such periods are exhausted and without prosecutors breaking a sweat.
While judicial officers retain discretion to determine whether to grant bail or bond depending on facts of each case, the said discretion must not be arbitrary but guided by law.
We note that Pretrial detention of suspects (depriving suspects and accused people of their liberty before the conclusion of a criminal case) is intended to be an exceptional measure, only to be used as necessary and proportionate and in compliance with the presumption of innocence and the right to liberty. Its use is only acceptable as a measure of last resort, in very limited circumstances. We take great objection to the pre-trial detention of Blogger Robert Alai ostensibly under the anti-terrorism law for publishing pictures that advanced the cause of terrorists’ activities. The pretrial detention of Robert Alai is serious chilling effect on the freedom of expression in a constitutional democratic society.
Article 49 of the Constitution of Kenya guarantees an arrested person the right to be released on bond or bail, on reasonable conditions pending a charge or trial unless there are compelling reasons not to be released. Internationally, article 9(3) of the International Covenant on Civil and Political Rights, which Kenya has ratified and therefore applicable in the country provides that it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.
[Charges leveled against Blogger Robert Alai. Photo/Courtesy].
Owing to discrepancies in how judicial officers in Kenya have applied their discretion to determine whether there are compelling reasons not to release an arrested person on bail or bond, the Bail and Bond Policy guidelines were developed. These guidelines outline the reasons the prosecution may advance to convince the court to deny bail. These reasons include: that the accused is likely to fail to attend court proceedings, that the accused will likely commit a serious crime, that the accused person is likely to endanger the safety of victims or the public, that the accused person is likely to interfere with witnesses or evidence, that the accused person is likely to endanger national security or that it is in the public interest to detain the accused person.
Worryingly, there is an apparent pattern where judicial officers, as a matter of course, allow lengthy detention of suspects before they formally plead to charges in court. When this is done routinely as opposed to the decision being informed by the threshold (that is, compelling reasons) as set by the Constitution, statutes and the above mentioned guidelines, rights of accused persons are blatantly violated.
Prolonged pre-trial detention is completely incompatible with the constitutionally guaranteed presumption of innocence and this presumption is a cornerstone principle in criminal trials. Essentially, it is interpretation of this principle that permitted President Uhuru Kenyatta and his deputy to remain free and enjoy their liberty despite the grave criminal charges they faced at the International Criminal Court (ICC).
ICPC observes that in most cases of Pretrial detention of suspects despite laws that protect in principle concepts like detention as a last resort, presumption of release, equality of arms, and proportionality, Kenya judgers and magistracy condone systematic failures to respect these standards effectively in practice.
There are many proceedings in which judges have made poorly-reasoned decisions to detain suspects unnecessarily, relying on minimal information. Judicial reasoning is often vague and formulaic, and fails to engage sufficiently with practical alternatives to pre-trial detention that can protect the investigation, limit the possibility of reoffending and ensure defendants’ presence at trial. Further defendants do not have access to adequate legal assistance or sufficient access to case materials essential to challenging detention, and that human rights standards set out certain limited grounds for imposing pre-trial detention but judges sometimes rely on unlawful grounds, such as exclusive or primary reliance on the nature of the offences, or findings of flight risk based on suspect justifications. Judges and magistrates abhor using alternatives rather than pretrial detention making them complicit to the investigations and prosecutions failures.
[ICPC Executive director Ndungu Wainaina. Photo/Ndungu Wainaina].
Kenya is facing a long-standing crisis in prison overcrowding. Overcrowding, and the rights violations it causes, is driven in part by excessive use of pre-trial detention, in contravention of country’s Constitution, regional and international standards. On the Pre Trial Judge Luka Kimaru of High Court of Kenya in June 2017 observed that the trend by police to seek court orders to detain suspects for further investigations without a formal charge in court illegal and against the Constitution.
He noted that if the current trend was allowed to thrive, the country risked plunging back into the dark days of detention without trial. “The police have no authority in law to arrest and detain any person without sufficient grounds. Every person has a right to live freely unless there are convincing reasons for the law to take away that freedom. All accused persons had a right to have their cases determined expeditiously”, the judge ruled. In his ruling the Judge concluded, “It is unlawful for the police to seek to have a person who has been arrested to continue to remain in custody without a formal charge being laid in court. If this trend continues, it will erode all the gains made in the advancement of human rights and fundamental freedoms as provided for in the Bill of Rights since the Constitution was promulgated in August 2010”.
The case of Blogger Robert Alai is similar to Sahin Alpay v. Turkey. Turkish Journalist Saphin Alphy was working for the newspaper Zaman which was closed down by a law issued under state of emergency on July 27, 2016. He was arrested and put in custody on suspicion of being a member of the terrorist organisation FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”) and subsequently placed in pre-trial detention on the ground that the articles published by him in Zaman promoted this terrorist organization.
The Magistrate’s Court, decided that the applicant’s articles had promoted the terrorist organization in question and ordered his pre-trial detention.
On September 8, 2016, journalist Alphy lodged an individual application with the Constitutional Court and complained that his pre-trial detention violated his right to liberty and security and his right to freedom of expression and of the press. The Constitutional Court and the European Court of European Court of Human Rights established that the applicant’s pre-trial detention on account of his articles constituted an interference with the exercise of the right to freedom of expression. Regarding the lawfulness of the detention, the Court held that such a measure, which had serious consequences since it resulted in deprivation of liberty, could not be regarded as a necessary and proportionate interference in a democratic society. It further noted that it could not be clearly established from the reasons given for ordering and extending the applicant’s pre-trial detention whether the measure met a pressing social need or why it was necessary. Lastly, it found that it was clear that the applicant’s pre-trial detention could have a chilling effect on freedom of expression and of the press, in so far as it had not been based on any concrete evidence other than his articles. Based on the foregoing, the Constitutional Court held that there had been a violation of freedom of expression and freedom of the press as enshrined in Articles 26 and 28 of the Constitution.
Kenya has become notorious with enacting vague laws and policies giving security agencies broad powers without oversight and accountability mechanisms that do not only have adverse effects on the freedom and rights of Kenyans guaranteed in the Constitution but also contravene regional and international treaties and conventions that Kenya has ratified. It is devastating that Kenya judiciary has become complicit and complacency in these machinations.
[ The writer is the Executive director International Centre for Policy and Conflict-ICPC]