The death of Albert Ojwang while in custody at Nairobi Central Police Station has raised serious questions about the treatment of suspects under arrest. Ojwang’s death highlights a growing need for accountability and adherence to the law by security agencies. Article 49 of the Constitution of Kenya outlines the rights of every person who is arrested or detained.
The article provides for the respect of an arrested person’s rights, consequently preventing abuse of power buy the police.
An arrested person has the right to be informed promptly, in language that the person understands, of the reason for the arrest.
You must also be informed of the right to remain silent and be told the consequences of not doing so.
In addition, the arrested person has a right to remain silent and access to legal assistance.
The Constitution allows you to communicate with an advocate and other people whose assistance is necessary during questioning.
You cannot be compelled to make any confession or admission that could be used in evidence against the person.
Additionally, arrested individuals must also be held separately from persons who are serving a sentence.
Court Arraignment and Bond
Arrest persons must also be brought before a court as soon as reasonably possible, and not later than 24 hours after arrest.
This excludes weekends and public holidays.
“If the twenty-four hours end outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day,” reads a part of the Article.
In the first court appearance, the authorities must either charge the person, explain why the detention is continuing, or release them.
Further, you have 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.
According to Article 49, 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.
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Rights of Detained Person
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.
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A person who is detained or held in custody is also entitled to petition for a review of whether their detention is lawful.
Role of Parliament
The Constitution directs Parliament to enact legislation that provides for the humane treatment of people detained, held in custody or imprisoned.
The legislation must take into account the relevant international human rights instruments.
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