Police violation of human rights was neither based on bad laws nor on their ignorance of the Law.
Human rights entail both rights and obligations meaning while we are entitled our human rights, we should also respect the human rights of others. One of the tremendous improvements is in the Chapter on the Bill of Rights. The police have been ordered to read and understand this chapter, especially Article 49 to ensure that they do not violate them under the new constitution. However, it is erroneous to refer to some of these laws as new. The former constitution was not necessarily bad; the issue is that it was never followed by the law enforcers.
Sections 70 and 71of the former Constitution stated that a person had a right to life, and that no person should be deprived of his life intentionally save in execution of the sentence of a court respectively. Section 14 the Police Act also identifies the protection of life and property as one of the functions of the force, and no person should be subjected to torture or to any other cruel or inhuman treatment. However, despite such provisions being in our Constitution, we still witnessed cases of extra-judicial killings by the police.
The law enforcers must not only understand the law, they should feel duty-bound to operate within the law. There have been cases of suspects being told ‘utajua mbele’ meaning he would be informed of the reason of arrest later at the station where he could be detained for even a week before arraigned in court. Still, the law was very clear; an arrested person had to be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest. If he was to be charged, he had to be brought before a court as soon as is reasonably practicable. According to Sekou Owino, a lawyer, the police will only arrest suspects towards the conclusion of their investigations because the new law requires that a suspect be arraigned before a court of law not later than 24hours even for capital offences. ‘We shall see very few if no preemptive arrests under this constitution,’ adds Mr Sekou.
Section 77 (8) of the former constitution explains the raison d’etre for drafting charges. The charge sheet must indicate the offence, section of the law and the particulars of that offence. The section reads that no person shall be convicted of a criminal offence unless that offence is defined, and the penalty there for is prescribed, in a written law. This notwithstanding, people were still arrested for offences not recognized in law. The law enforcer must understand the law breached and the elements of the crime that ought to be proved, before charging any suspect. If after questioning a suspect they decide not to press charges, they should release him once they have made that decision.
Section 19 of the Criminal Law clearly states that the means used to arrest a person must be necessary and degree of force reasonable having regard to the gravity of the offence. The law is also clear on justifiable circumstances to use a firearm but on 10th July 2010, for example, detectives shot dead a butcher who was wearing gumboots and carrying a basket and thus could not outrun them. Was he presumed guilty?
There are cases where suspects have been acquitted simply because their constitutional rights have been violated. A violation of a constitutional right willmake a suspect, no matter how serious the offence was and no matter the nature and strength of evidence adduced before court, be acquitted if the Court takes the view that the violation would likely prejudice the accused person in a manner that would result in miscarriage of justice. However in some cases, any violation if well explained cannot result into an acquittal for example a person arrested on a Friday evening cannot be arraigned in court within a period of 24 hours. The question under this section has always been whose justice should take precedence? At times drawing the line between the rights of an accused person and the victims’ rights may prove very tricky. The point is, the police as law enforcers should not break the same law while charging suspects.
Major shifts and the anticipated challenges
Civic education for the police is urgently needed for them to know what offence attracts what punishment. Article 49 (2) of the new constitution states that a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months, and the officers must understand this.
Though the law allows for pre-trial disclosure of prosecution witnesses’ statements and exhibits, there was discretion not to allow disclosure. Among the factors considered are; if the information may lead to the accused party intimidating witnesses, or the matter is sensitive or may disclose some unusual form of surveillance or method of detecting crime. In the new Constitution, there is no discretion. Article 50(2) (j) states that every accused person has the right to be informed in advance of the evidence to be presented in Court against him.
Unlike before the police now cannot oppose bail application stating that the matter is still being investigated. They should investigate to arrest and not vice versa.
An arrested person has to be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest. Are the police prepared if for example, the suspect only speaks French? Also, the person has the right to communicate with his advocate, or any other persons whose assistance is necessary, but the police may not have these facilities.
The law is silent on capital offences which initially a suspect could be detained for 14 days before arraigned in court. It would be tricky handling murder cases where a suspect may go into hiding. Such cases would involve checking the mental status of the suspect, performing autopsy on the deceased among many other issues involved in the compilation of police case files. According to Mr Charles Wahongo, the Deputy Police spokesman, the police are not worried of the new law and they are ready to follow it though there is need for adequate facilities and professionals. ‘When new laws come into place, we give priority to training our officers,’ he said, adding that since police officers use law as their tool of trade, if the law says something they must abide.
The police have organized for initial seminars on the Bill of rights that target station commanders first since they head stations where suspect are usually held. In one month’s time all of them shall have been trained.
Any constitution is subject to review and the National Police Service Bill will give the Police Service Act powers to recommend some amendments based on their work.
What the Public must know
Citizens should not only cooperate with the police and but also understand that the law, especially their rights and obligations. Change is not a one way traffic affair, and the citizens’ concern and participation will go a long way towards realization of these changes. According to section 33 (1) of the new constitution, every person has the right to freedom of expression however this right does not extend to propaganda for war, incitement or hate speech.
A person detained retains all the rights and fundamental freedoms in the Bill of Rights. Yet, this does not apply if any particular right or freedom is clearly incompatible with the fact that the person is detained. Circumstances of the case would generally determine whether a person can be arrested without a warrant for a non-cognizable offence. If the person has violated traffic rules or the police have reason to believe the person may escape or destroy evidence, he should be immediately arrested, even without a warrant and if he is reasonably suspected to be armed he may be frisked without a warrant . A private person may also arrest a person without warrant, if in his presence, that person commits an offence amounting to a breach of the peace or a felony. As long as the person has committed the crime for which he is being arrested, the arrest remains lawful.
An arrested person has the right to remain silent. Police officers must, before questioning an arrested person about anything, caution and advise him or her of his “right to silence”. They must be informed that any statement made may be used as evidence against them and that they have a right to speak with a lawyer. It is an offence to resist arrest since and anyone who resists can be charged with the offence, and it is always advisable to be polite to police, compliant to the extent that your rights are not being infringed upon.
Section 22 of the Police Act gives power to any police officer to compel attendance of any person who he has reason to believe has information which will assist him in investigating an alleged offence to attend before him at police station. It is an offence to fail to attend however the person has protection from self-incrimination and may not answer any question the answer to which may expose him to a criminal charge, or to a penalty or forfeiture.