A suitable remedy for pre-trial detention: to acquit or to compensate?
Date
2020-11
Authors
Onyango, Natasha Achieng
Journal Title
Journal ISSN
Volume Title
Publisher
Strathmore University
Abstract
This study centres on a challenge that besets the Kenyan criminal system; excessive arbitrary detentions without trial. An arrested person has the right to prompt production in a court of law within a period of twenty-four hours. However it would seem that this right is merely an appendage to the constitution, seeing as such persons are increasingly held in custody without trial for periods beyond the constitutional limit. This study traverses judicial jurisprudence in the context of the repealed constitution and 2010 constitution. In doing so, it highlights the courts’ contribution in mitigating the practice as it looks into the remedies that have been granted and other possible alternatives.
Description
Courts are under a constitutional duty to jealously protect the right to liberty and freedom of a person. In Republic v Danson Mgunya & Another 1 , Ibrahim J stressed how much an individual’s liberty shouldn’t be taken for granted when he reiterated that: “Liberty is so precious; that no one should be denied their liberty without reasons in accordance with the law.” 2 Despite the fact that Kenyan laws lay down the confines within which detention ought to be exercised; law enforcement officers, and in particular the police, continue to exhibit a certain tendency in detaining suspects whom they do not intend to charge for extended periods of time. Our courts, in their dispensation, have however asserted their stance on this issue as cases have
been dismissed on the ground that a defendant was detained contrary to the constitutional time limit. The genesis and drastic development of this jurisprudence began in the era of the implementation of the old constitution.