A SUITABLE REMEDY FOR PRE-TRIAL DETENTION: TO ACQUIT OR TO COMPENSATE? Submitted in partial fulfilment of the requirements of the Bachelor of Laws Degree, Strathmore University Law School By Onyango Natasha Achieng Student No: 087794 2020 Prepared under the supervision of Emma Senge Word Count: (10,150) Table of Contents Dedication iii Acknowledgement iv Declaration v List of Abbreviations vi List of Cases vii List of Legal Instruments viii Abstract ix CHAPTER ONE: INTRODUCTION 1 1.1 Background to the study 1 1.2 Statement of the problem 2 1.3 Statement of objective 2 1.4 Hypothesis 3 1.5 Research question(s) 3 1.6 Theoretical framework 3 1.7 Literature Review 5 1.8 Research design and Methodology 7 1.9 Assumptions 7 1.10 Limitations 8 1.11 Chapter breakdown 8 1.12 Timeline 8 CHAPTER TWO: REVISITING PRE-TRIAL DETENTION IN THE ERA OF THE REPEALED CONSTITUTION 10 2.1 Introduction 10 2.2 The historical genesis of arbitrary detention in Kenya 10 2.3 Arbitrary detention practice and the retired legislative framework in Kenya 12 2.4 Jurisprudence emanating from domestic courts prior to the promulgation of 2010 constitution 14 2.5 Criticisms of the ‘Strict Approach’ 16 CHAPTER THREE: PRE-TRIAL DETENTION AND THE NEW CONSTITUTIONAL DISPENSATION 18 3.1 Introduction 18 3.2 The decision in Julius Kamau Mbugua v Republic: Alternative to the nullity? 19 3.3 A suitable remedy: The ‘Strict Approach’ versus the ‘Balanced Approach’ 21 3.4 The Poisoned Fruit of pre-trial detention 23 CHAPTER FOUR: PRE-TRIAL DETENTION IN SOUTH AFRICA; A COMPARATIVE PERSPECTIVE 24 4.1 Introduction 24 4.2 Justification for the comparative analysis 24 4.2.1 South Africa 24 4.2.2The South African Approach 25 4.3. The South African and Kenyan approach: An analysis 27 4.4 Restorative Mechanisms: A model for Kenya’s criminal justice system 28 4.5. Lessons for Kenya: Case Study of Republic v Mohamed Abdow Mohamed 30 CHAPTER FIVE: FINDINGS, RECOMMENDATIONS AND CONCLUSION 32 5.1 Introduction 32 5.2 Findings 32 5.3 Recommendations 33 5.3.1 Restorative Mechanisms for Petty Criminal Offenders 33 5.3.2 Special Plea Courts 34 BIBLIOGRAPHY 35 Books 35 Dissertations and Theses 35 Institutional Authors 35 Internet Resources 35 Journal Articles 36 List of cases 37 Newspapers 38 Dedication I wholeheartedly dedicate my humble efforts to my family and friends. A special feeling of gratitude to my loving parents, whose words of encouragement and the push for tenacity reverberate. They have continually been my source of inspiration and strength when I thought of giving up. Thank you for the moral, spiritual, emotional and financial support throughout the years. This work is also dedicated to my friends who have constantly been a source of support and encouragement during the challenges of my whole university life. God bless you! Acknowledgement First and foremost, I would like to thank my parents for their unconditional love and support throughout my life. I would like to sincerely thank my Supervisor, Emma Senge, for the encouragement, calmness, assistance and support in completing this paper. To all my friends, thank you for your understanding and encouragement in the many, many moments of crisis. Your friendship has made my life a wonderful experience. I am unable to list all of your names here, but you are always on my mind! Thank you, Lord, for the grace and strength during this journey. Declaration I ONYANGO NATASHA ACHIENG, do hereby declare that this research is my original work and that to the best of my knowledge and belief, it has not been previously, in its entirety or in part, been submitted to any other university for a degree or diploma. Other works cited or referred to are accordingly acknowledged. Signed: ....................................................................... Date: .......................................................................... This dissertation has been submitted for examination with my approval as University Supervisor. Signed: ....................................................................... Supervisor: Emma Senge List of Abbreviations ACHR American Convention on Human Rights ECHR European Convention on Human Rights FGC Family Group Conference ICCPR International Covenant on Civil and Political Rights NCAJ National Council on the Administration of Justice List of Cases 1. Albanus Mwasia Mutua v Republic [2004] eKLR. 2. Ann Njogu and 5 others v Republic [2007] eKLR. 3. Gerald Macharia Githuku v Republic [2008] eKLR. 4. Julius Kamau Mbugua v Republic [2010] eKLR. 5. Kihoro v Attorney General of Kenya [1993] 23 LRC 390. 6. Michael Rotich v Republic [2016] eKLR. 7. Miguna Miguna v Director of Public Prosecutions & 2 others [2018] eKLR and Miguna Miguna v Fred Okengo Matiang’i Cabinet Secretary, Ministry of Interior and Coordination of National Government & 7 others [2018] eKLR. 8. Republic v Abdulahi Noor Mohamed [2016] eKLR. 9. Republic v Amos Karuga Karatu [2008] eKLR. 10. Republic v James Njuguna Nyaga [2007] eKLR. 11. Republic v Mohamed Abdow Mohamed [2013]eKLR. 12. R v Morin [1992] 3 S.C.R. 286. 13. Sanderson v Attorney General [1998] (2) SA 38. List of Legal Instruments International 1. American Convention on Human Rights, “Pact of San Jose”, 22 November 1969 O.A.S.T.S. No. 36. 2. Basic principles on the use of restorative justice programmes in criminal matters, 27 July 2000 Economic and Social Council Res. 2000/14, U.N. Doc. E/2000/30. 3. Development and Implementation of Mediation and Restorative Justice Measures in Criminal Justice, 28 July 1999 Economic and Social Council 1999/26. 4. European Convention on Human Rights, 4 November 1950. 5. International Covenant on Civil and Political Rights16 December 1966, 999 UNTS 171. National 1. Constitution of Kenya (2010) 2. Constitution of Kenya (repealed) 3. South Africa Constitution 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. The paper shall also highlight the challenges in upholding the constitutional provision asserting an arrested person’s prompt production before a court of law. vii CHAPTER ONE: INTRODUCTION 1.1 Background to the study Courts are under a constitutional duty to jealously protect the right to liberty and freedom of a person. In Republic v Danson Mgunya & Another[footnoteRef:2], Ibrahim J stressed how much an individual’s liberty shouldn’t be taken for granted when he reiterated that: [2: Republic v Danson Mgunya & Another [2010] eKLR.] “Liberty is so precious; that no one should be denied their liberty without reasons in accordance with the law.”[footnoteRef:3] [3: Republic v Danson Mgunya & Another [2010] eKLR.] 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. In Albanus Mwasia Mutua v Republic[footnoteRef:4], the court in acquitting an appellant (who had been detained for eight months before he was taken to court) of his conviction to a death penalty was of the opinion that: [4: Albanus Mwasia Mutua v Republic [2004] eKLR.] “…an unexplained violation of a constitutional right will normally result in an acquittal irrespective of the nature and strength of evidence adduced in support of the charge…The appellant’s appeal must succeed on that ground alone.”[footnoteRef:5] [5: Albanus Mwasia Mutua v Republic [2004] eKLR.] In the period following the promulgation of the 2010 constitution, courts have become wary in granting an acquittal as the consequence of a pre-trial breach of personal liberty rights the constitution affords an arrested person.[footnoteRef:6] Claims and criminal appeals for acquittal on the ground of prolonged pre-trial detention have subsequently been dismissed by our courts. In Julius Kamau Mbugua v Republic[footnoteRef:7], the court was of the opinion that the violation of this right did not constitute an automatic acquittal. Our courts have instead resorted to a different course currently compensating an aggrieved party by way of monetary damages. [6: Kiage P, Essentials of Criminal Procedure in Kenya, 50.] [7: Julius Kamau Mbugua v Republic [2010] eKLR.] 1.2 Statement of the problem The constitution empowers the courts to interpret it as well as dispense justice to all.[footnoteRef:8]The courts’ interpretation of the constitution is further expected to be in a manner that advances the rule of law; the human rights and fundamental freedoms as captured in the Bill of Rights.[footnoteRef:9] [8: Article 23, Constitution of Kenya (2010).] [9: Article 259(1) (b), Constitution of Kenya (2010).] The twenty-four hour constitutional requirement is pivotal in ensuring that an arrested person is charged before a court to have their trial begun and concluded without unreasonable delay. Given the status of habeas corpus as a non-derogable right under the Kenyan constitution[footnoteRef:10], it is further expected that this right should remedy any delay beyond the tick of the twenty-fourth hour. [10: Article 25, Constitution of Kenya (2010). ] However (despite the eminent significance attached to these rights) gross violations have been evident in the past and continue to be evident today necessitating that appropriate relief be granted to the aggrieved party. Claims of bolstering the public interest have often been cited to warrant such detention thus trumping the individual constitutional rights of persons charged with criminal offences. What then is the appropriate remedy to bridge this gap in as far as pre-trial detention is concerned? 1.3 Statement of objective The main objective of this research is to propose a suitable remedy for pre-trial detention seeing as this issue is still the subject of several decisions, posing a constitutional and human rights concern. Specifically, this research intends: a) To demonstrate courts’ contribution in protecting the right of an arrested person to be promptly taken before a court of law. b) To analyse how courts in other jurisdiction(s) have developed the same. c) To highlight the challenges that courts, in their dispensation of justice, face in ensuring the protection of this right. 1.4 Hypothesis a) In interpreting the constitutional provision, courts have manifested a disparity in what ought to be a suitable remedy for pre-trial detention. On a plain reading of the text, the constitution prescribes compensation from the person that detains unlawfully.[footnoteRef:11] It would also seem that, though not expressly mentioned, it is possible to invoke a remedy of acquittal as an appropriate relief.[footnoteRef:12] [11: Article 23(3), Constitution of Kenya (2010).] [12: Article 23(3), Constitution of Kenya (2010).] b) We can aptly ascribe the incongruity to the difficulty in finding a balance between upholding the individual constitutional rights of persons charged with criminal offences and bolstering the public interest. This poses a constitutional and human rights concern seeing as the issue is still the subject of several decisions. c) Despite being a non-derogable right, habeas corpus does not often apply hence requiring that appropriate relief be sought. 1.5 Research question(s) This study interrogates the extent to which public interest trumps the constitutional rights of persons charged with criminal offences. Specifically, this study seeks to answer these questions: a) How have the old and new constitutional regimes protected the right to prompt production of an arrested person before a court? b) How have the courts interpreted the same in providing a suitable remedy? c) What then is the suitable remedy where there is a violation of that right? 1.6 Theoretical framework This study is guided by two main theories of law, that is, legal realism and utilitarianism. The genesis of the legal realism theory is largely credited to Justice Oliver Wendell Holmes; including other proponents such as Justice Benjamin Cardozo and Jerome Frank. The philosophy dates back to the early twentieth century where it caused a revolutionary shift from the legal formalist approach to judging: that judging is rule-bound.[footnoteRef:13] [13: Tamanaha B, ‘Understanding legal realism’ 87 Texas Law Review, 2009, 731.] It’s best known manifestation was a series of decisions by appellate courts that strengthened the positions of business corporations in their struggles with workers and consumers.[footnoteRef:14] Federal and State courts in the United States invented new legal remedies and new common law doctrines that assisted businesses in their efforts to prevent strikes and other forms of collective action by their employees.[footnoteRef:15] [14: The Bridge, ‘Legal realism and the realist critique’- on 8 March 2018.] [15: The Bridge, ‘Legal realism and the realist critique’- on 8 March 2018.An example of the new invented legal remedies were labour injunctions; new common law doctrines included the rule that union organisers could be held liable for interfering with employers’ ‘contractual relations’. ] Legal realism postulates that law consists of the decisions of courts; that these judicial decisions derive from social interest and public policy.[footnoteRef:16] As such, most litigation presents hard questions that judges must resolve balancing the interests of the parties.[footnoteRef:17] [16: Nnamdi E, ‘The realist school of law’, 2016.] [17: American Law and Legal information, ‘Jurisprudence-Realism’- on 8 March 2018.] The philosophy of legal realism is relevant to this study in that it informs how courts often arrive at their decisions. Furthermore, it speaks to the judicial discretion exercised in determining cases. Whether the ground for a decision constitutes conceptions of justice, attributes of litigating parties, ideology, public policy preferences, judges’ personality; all these influence the outcome of a decision.[footnoteRef:18] Therefore, in the analysis of the jurisprudence emanating from our courts, this study appreciates that; courts, as enforcers of the constitution, are constantly at crossroads in attempting to maintain a balance between legitimate concerns and upholding the legal and constitutional rights afforded to an arrested person awaiting trial. It is thus concerned with realising the various factors contemplated by legal realism in the various decisions regarding the subject matter. [18: Tumonis V, ‘Legal realism and judicial decision-making’ Department of International and European Law, Mykolas Romeris University, 2012, 1367. ] The utilitarian theory is essentially associated with philosophers like Jeremy Bentham and John Stuart Mill. It connotes a ‘welfarist’ ideology concerned with the greatest good for the greatest number of people. This theory typically requires persons to act in whatever way that result in the greatest possible amount of well-being.[footnoteRef:19] The state’s primary responsibility is to its own citizens. It therefore plays a role in the realisation of the greatest good. This study highlights the incompatibility of individual interests and that of the public. It follows that in the face of such conflict, the utilitarian doctrine approves of state actions taken to promote the greatest good for the greatest number.[footnoteRef:20] [19: Vyas M.K, ‘Concept of justice, utilitarianism and other modern approaches’ Banaras Hindu University, 2014, 4.] [20: Driver J, ‘The history of utilitarianism’ The Stanford Encyclopedia of Philosophy, - on 8 March 2018.] 1.7 Literature Review In the criminal justice system, the time between arrest and case disposition is known as the pre-trial stage. This study primarily limits itself to the time between arrest and when the arrested person is brought before a court to be charged. As such, the study is concerned with the arbitrary detention in the purview of the twenty-four hour rule. When in detention, the liberty of individuals is curtailed, and they are at their most vulnerable to other human rights abuses.[footnoteRef:21] In addition to this, excessive pre-trial detentions undermine the sanctity of the rule of law.[footnoteRef:22] Sangeeta Shah is of the view that prompt production of an arrested person before a judge ought to be an automatic process independent of request by the arrested person; that a judge ought to be empowered to order release of a detainee where detention is not appropriate.[footnoteRef:23] He further posits that any such detention powers should only be exercised when actually necessary as there could be valid reasons necessitating so.[footnoteRef:24] The court in the case of Albanus Mwasia Mutua attempted to enumerate acceptable reasons that could suffice in the extension of the twenty-four hour constitutional limit.[footnoteRef:25] However, in the event that such a delay is not justifiable, the detention is unlawful and an arrested person is thus entitled to recourse. [21: Shah S, ‘Detention and Trial’ in Moeckli D, Shah S and Sivakumaran S, International Human Rights Law, 2nd ed, Oxford University Press,London 2014, 259.] [22: Kiage P, Essentials of Criminal Procedure in Kenya, Law Africa, Nairobi, 2010, 44.] [23: Shah S, ‘International Human Rights Law’, 267.] [24: Shah S, ‘International Human Rights Law’, 259. ] [25: Albanus Mwasia Mutua v Republic [2004] eKLR.] The discourse on what remedy ought to be granted is one that has dogged the Kenyan judiciary. Courts in deciding cases make law, for instance, by determining the rights and duties of parties to a case through adherence to precedent. The literature available on this subject matter manifests itself in two-fold: Firstly, judges have espoused that any violation of the arrested person’s right equals acquittal.[footnoteRef:26] Other judges have considered acquittal as peculiar and instead ascribed to compensation by way of monetary damages for the breach of law.[footnoteRef:27] From a plain reading of the constitutional provision, compensation is seemingly the prescribed remedy.[footnoteRef:28]Nonetheless an acquittal may also be inferred by virtue of the terms ‘appropriate relief’; a broad expression that expands the scope of what may constitute a remedy.[footnoteRef:29] In view of the position that any violation of this right leads to an automatic acquittal, it could possibly be inferred that a fair trial is obscured from the onset if an individual was to be prosecuted despite the violation of their constitutional right.[footnoteRef:30] [26: Kiage P, Essentials of Criminal Procedure in Kenya, 47. ] [27: Kiage P, Essentials of Criminal Procedure in Kenya, 49.] [28: Article 23(3), Constitution of Kenya (2010). See also Section 72(6) of the former constitution.] [29: Article 50, Constitution of Kenya (2010). See also Section 77 of the former constitution. Kiage also posits that an acquittal can arise where an accused’s detention has been so long and extended as to lead to an ipso facto negation of his right to a fair trial.] [30: Anne Njogu and 5 others v Republic [2007] eKLR. See also Gerald Macharia Githuku v Republic [2008] eKLR; Republic v James Njuguna Nyaga [2007] eKLR; Republic v Amos Karuga Karatu [2008] eKLR. ] Kiage espouses that a nullity of proceedings on this ground seemingly champions constitutional rights.[footnoteRef:31] However, it bears with it an undesirable effect in that there is a constant push and pull between an arrested person’s right and the public interest.[footnoteRef:32] This is because the acquittal and release of criminals (sometimes perpetrators to crimes such as murder, robbery among others) back to the community threatens the society’s social order. Such a concern demonstrates the disharmony that persists in reconciling particular interests and the preservation of the public good. Indeed, courts in their decisions have had to take into consideration such issues. Richard Posner in fact posits that statutes and the constitution should be interpreted such that the outcome of cases best promotes public welfare.[footnoteRef:33] [31: Kiage P, Essentials of Criminal Procedure in Kenya, 47.] [32: Kiage P, Essentials of Criminal Procedure in Kenya, 47.] [33: Posner R, ‘Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution’, 37 Case Western Reserve Law Review, 1986, 181.] Consequently, we witness a receding application of acquittals based on this violation of the prescribed twenty-four hour period. Judges have increasingly upheld the decision in the case of Julius Kamau Mbugua where the court opined that a violation of one’s right to be produced in court within twenty-four hours does not result in their automatic acquittal; one would however be at liberty to seek remedy in damages, for the violation of his constitutional right.[footnoteRef:34] Furthermore the court cited public security concerns as it court considered why an acquittal was not an appropriate remedy.[footnoteRef:35] Thus the court, affirming the relief granted in Kihoro v Attorney General of Kenya[footnoteRef:36], was of the opinion that compensation would instead serve as an appropriate remedy. It is commonplace that courts have now opted to grant monetary damages viewing an acquittal or discharge as a disproportionate and inappropriate remedy.[footnoteRef:37] [34: Julius Kamau Mbugua v Republic [2010] eKLR.] [35: Julius Kamau Mbugua v Republic [2010] eKLR.] [36: Kihoro v Attorney General of Kenya [1993] 23 LRC 390.] [37: Kiage P, Essentials of Criminal Procedure in Kenya, 50.] This study appreciates the constitutional and statutory guarantee of the twenty-four hour requirement to ensure prompt production of an arrested person in court. However, it is of the view that those constitutional and statutory provisions need to be implemented and adhered to. Such implementation and adherence is necessary in advancing the rule of law and dispensing justice to guarantee protection of the people’s rights. This study therefore questions the effectiveness of courts efforts, to ensure the protection of this right, through their interpretative and remedial authority to advance justice. 1.8 Research design and Methodology This research makes use of the descriptive design to provide an analysis of the different interpretations on what would constitute a suitable remedy. It relies on both primary and secondary information on the topic. The primary sources of information include legal instruments such as the Constitution of Kenya, and any other relevant statutory provision that touches on pre-trial detention. Court decisions also form part of the primary source of information for this study. On the other hand, secondary sources of information used include books, journals and electronic databases. The study also includes a comparative approach as it looks into South Africa’s criminal justice system. This analysis is informed by the commonality in the unlawful practice despite similar constitutions that proscribe the practice. Nonetheless, the research keenly demonstrates positive remedial steps that South Africa has taken towards unlawful detentions that could be tailored into Kenya’s criminal justice system. 1.9 Assumptions This study makes the assumption that a violation of the right captured under article 49 (1) (f) (i) is continuously invoked as a ground for acquittal in a great many cases despite the decision in Julius Kamau Mbugua. This indicates the continued prevalence of the arbitrary practice in Kenya’s criminal justice system, necessitating the need for a solution. 1.10 Limitations The scope of analysis in this study is largely bounded to sampling of facts and cases as a result of limited access to prior literature on the topic. Consequently, the scope and depth of discussions in this research is compromised. 1.11 Chapter breakdown Chapter 1 The first chapter of this study introduces the research. It further contains the background and statement of the problem, theoretical framework, literature review, objectives, research questions, hypothesis, methodology and the chapter breakdown. Chapter 2 In the second chapter, the study aims at providing an analysis of courts enforcement of the protection of an arrested person from pre-trial detention in the context of the old constitution. In doing so, it shall be guided by the courts’ interpretations of constitutional provisions with a primary focus on courts’ decisions on the issue. Chapter 3 This chapter generally centres on courts approach in the protection of an arrested person from arbitrary detention in the context of the new constitution. Similarly, this chapter shall be guided by jurisprudence developed by the courts. Chapter 4 This chapter constitutes a comparative study of Kenya and South Africa. This study makes an attempt to demonstrate positive ‘lessons’ that Kenya could tailor into its own criminal justice system. Chapter 5 The final chapter entails the findings, recommendations and conclusions; where this study conceivably proceeds to present a viewpoint on what remedy courts ought to grant an arrested person detained for a period longer than the constitutional limit. 1.12 Timeline The study is part of coursework with a set timeline. It will be conducted and submitted within that prescribed period. CHAPTER TWO: REVISITING PRE-TRIAL DETENTION IN THE ERA OF THE REPEALED CONSTITUTION 2.1 Introduction This chapter primarily looks into the jurisprudence developed by Kenyan courts in the period preceding the promulgated constitution. First and foremost, it begins by furnishing the general historical background on the practice of pre-trial detention in Kenya. It also explores the legal framework that existed then and; whether it adequately safeguarded against the practice in Kenya’s legal system. Lastly, the chapter delves into a discussion on how courts responded to such detention, based on sampled domestic cases, and the remedy granted. 2.2 The historical genesis of arbitrary detention in Kenya In respect of the colonial period, the practice of arbitrary detention was almost exclusively used as a weapon against ‘recalcitrants’; an instrument for facilitating colonial domination.[footnoteRef:38] The colonialists had asserted bogus claims to better the lives of indigenous communities.[footnoteRef:39] These included their civilizing missions, efforts in ending slave trade or ending the alleged high mortality rates of inter-tribal conflicts.[footnoteRef:40] On the contrary, the colonial government was concerned with maintaining its status quo thus subordinating indigenous communities.[footnoteRef:41] [38: Conboy K, ‘Detention without trial in Kenya’ 8(2) Georgia Journal of International and Comparative Law, 1978, 448.] [39: Oloka-Onyango J, ‘Police powers, human rights and the state in Kenya and Uganda: A comparative analysis’ Third world legal studies, 1990, 6.] [40: Oloka-Onyango J, ‘Police powers, human rights and the state in Kenya and Uganda’, 6.] [41: Conboy K, ‘Detention without trial in Kenya’, 441.] The indigenous communities, on realising such betrayal, went ahead and initiated spontaneous resistance to the economic, social and political superiority of the whites during their rule. This resulted into the civil disorder that was the Mau Mau insurrection, coalescing around the issue of land shortage as well as other political grievances.[footnoteRef:42] The overt and immediate antagonism to colonial rule, consequently, led to the detention of up to eighty thousand detainees during Kenya’s State of Emergency.[footnoteRef:43] The detainees were held for as long as up to eight years without trial.[footnoteRef:44] [42: Kariuki J, ‘Mau Mau detainee’, Oxford University Press, Nairobi, 1963. Conboy in his article also provides an account of upto 26,000 Africans being rounded up in Nairobi and detained on a single security operation.] [43: Conboy K, ‘Detention without trial in Kenya’, 442. In 1952, a state of emergency was declared. Among those arrested were Kenya African Union leaders who were accused of managing or assisting to manage the proscribed society of Mau Mau. ] [44: Conboy K, ‘Detention without trial in Kenya’, 442.] The Mau Mau Rebellion was a clear indication that Kenya would not tolerate the white-man’s rule; a case against imperialism synonymous to the narrative epitomised in The River Between.[footnoteRef:45] Years later, it followed that the colonialists eventually reverted power back to the people of Kenya.[footnoteRef:46] This led to Kenya attaining her independence in 1963 after sixty-one years of colonial rule. Similarly, she gained internal self-rule in the successive year with the late Jomo Kenyatta assuming presidency. [45: The River Between is a novel written by Kenyan author Ngugi wa Thiong’o. Its story chronicles pre-colonial life in the mountains of Kenya and the arrival of the Europeans. All these issues were powerfully evoked in that legendary work of African Literature.] [46: Conboy K, ‘Detention without trial in Kenya’, 443.] Independence must have brought with it expectations of man living in freedom and dignity in a democratic system of government. On the contrary, there was no transformation in the system of governance as one would have anticipated. Kenyatta’s regime, reminiscent of the colonialists’ government, was highly plagued by arbitrary detentions.[footnoteRef:47] Detentions without trial, and criminal charges of sedition, subversion, breach of peace and treason, were used to exert political dominance and eliminate political opponents and opposition.[footnoteRef:48] The use of these tactics, for instance, saw the country shift to a one-party, one-man rule.[footnoteRef:49] [47: Nowrojee P, ‘The legal profession 1963-2013: All this can happen again- soon’ in Ghai Y and Ghai J (eds) The legal profession and the new constitutional order in Kenya, Strathmore University Press, 2014, 34.] [48: Nowrojee P, ‘The legal profession 1963-2013’, 34.] [49: Kenyatta’s Kenya African National Union (KANU) government dismantled the regional system and began to strengthen the central government. KANU and the opposition party Kenya African Democratic Union (KADU) merged to pave way for a de facto one partism. Various constitutional amendments were also affected dismantling multipartism.] In the same vein, Moi’s regime (indeed having pledged to follow Kenyatta’s Nyayoand fidelity to his principles) employed similar methods when it came to dealing with political dissidents. President Moi in exercising his style of authoritarianism detained a number of Kenyans critical of his government under inhuman conditions and without trial.[footnoteRef:50] This was particularly evident in Moi’s attempt to clamp down on an underground opposition group, the Mwakenya, which had begun a campaign of resistance to his government.[footnoteRef:51] Many intellectuals and academics suspected of involvement in Mwakenya were consequently detained and even tortured.[footnoteRef:52]Additionally, Moi was in fact later castigated for the high incidences of deaths of persons in police custody alongside the police brutality that had been in abundance during his rule.[footnoteRef:53] [50: Adar K and Munyae I, ‘Human rights abuse in Kenya under Daniel Arap Moi 1978-2001’ 5(1) African Studies Quarterly, 2001, 6.] [51: Kuria G, ‘The rule of law in Kenya and the status of human rights’ 16(1) Yale Journal of International Law, 1991, 3.] [52: Kuria G, ‘The rule of law in Kenya and the status of human rights’, 3.] [53: Oloka-Onyango J, ‘Police powers, human rights and the state in Kenya and Uganda’, 3.The author in his article draws evidence from Outcry over deaths in custody, weekly review of February 24, 1989.] From the aforementioned recollection, we can safely deduce that human rights issues certainly did not feature prominently during the colonial era and during the immediate post colonial period. Those governments had no pretensions to protection of human rights. Nonetheless, I contend that the law plays an important role as (among other functions) it exists to protect the rights of members of any given society.[footnoteRef:54] In light of this view, the next section of this chapter interrogates the laws that were in place in Kenya and their efficacy in preventing arbitrary detention practices. [54: Tuckness A, ‘Locke’s Political Philosophy’ The Stanford Encyclopedia of Philosophy, - on 10 October 2018.] 2.3 Arbitrary detention practice and the retired legislative framework in Kenya Throughout the colonial period, the lack of a constitution provided leeway for wide ranging powers.[footnoteRef:55] As such, it was possible for the colonial government to over-zealously exercise its powers against the colonised society. Consequently, this caused the curtailment of a broad spectrum of human rights reposed, for instance, in the Emergency Power Statutes and Detention without trial regulations.[footnoteRef:56] It is inevitable that any recourse for such violations was rather fallacious if not unavailable. [55: Oloka-Onyango J, ‘Police powers, human rights and the state in Kenya and Uganda’, 11.] [56: Oloka-Onyango J, ‘Police powers, human rights and the state in Kenya and Uganda’, 11-12.] The Emergency Powers statutes and ‘Detention without trial’ Regulations of British colonies later fashioned the detention laws in the early post colonial setting.[footnoteRef:57] This was evident in certain provisions of the old constitution and legislations that were passed since Kenya gained her independence. [57: Nowrojee P, ‘The legal profession 1963-2013’, 34.] Chapter V of the repealed constitution provided for the protection of rights and fundamental freedoms to be enjoyed by all her citizens.[footnoteRef:58] Among these was the protection of the right to personal liberty.[footnoteRef:59] Characteristic of the repealed constitution, however, was the inclusion of claw-back clauses such that the rights guaranteed were subject to provisions of other statutes. It was thus possible to pass amendments that threatened to undermine the democratic government established at independence.[footnoteRef:60] Furthermore, these provided avenues for the National Assembly to restrain fundamental rights and freedoms thus opposing the very rights that the constitution sought to uphold.[footnoteRef:61] This was particularly evident when the government agitated for, and received, the wide ranging powers contemplated in the Preservation of Public Security Act (Security Act).[footnoteRef:62] This Act was envisaged to cater to threats to public security which had been captured to include; internal political strife, subversion, external aggression, problems relating to the economic order and natural disasters.[footnoteRef:63] In addition, later amendments to the retired constitution granted the government special powers to deal with any emergency situations proclaimed by the President.[footnoteRef:64] In other words, this provided a constitutional basis for the President to detain at will (and without trial) once an emergency or threat simply existed in his mind. [58: Constitution of Kenya (repealed).] [59: Section 72 Constitution of Kenya (repealed). It stated that, “[n]o person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases….”The section further gives a list of those instances. This section also prescribed the rights of a person who is arrested or detained among which is the right to be brought before a court within twenty-four hours. ] [60: Kuria G, ‘The rule of law in Kenya and the status of human rights’, 2.] [61: Odhiambo B, ‘The limitation of rights under the Kenyan constitution’ Unpublished LLM Thesis, University of Pretoria, Pretoria, 2015, 48. See also the Constitution of Kenya (Amendment)Act ( Act No. 14 0f 1965) ] [62: Conboy K, ‘Detention without trial in Kenya’, 445.] [63: Conboy K, ‘Detention without trial in Kenya’, 446.] [64: Constitution of Kenya(Amendment)Act (Act No. 18 of 1966). This amendment removed the exercise of emergency powers from Parliament and vested them in the President. As such, the President could order detention without trial at his own discretion. See also Section 85(1) of the former constitution. ] Kenya witnessed the misapplication of these pieces of legislation. Numerous detentions and restrictions of government critics were masked under the claims to meet, quickly and effectively, situations that menaced public security.[footnoteRef:65] The detainees were held without charge for periods exceeding the legal requirements. This was obviously a departure from the legislation’s originally intended purpose; though having explicitly provided for the detention of persons as a measure to meet the exigencies of public emergencies that threatened the economic and political life of a democratic state.[footnoteRef:66] Detention had been used as part of the standard law at times when the country was described by the government to be as stable and peaceful.[footnoteRef:67] [65: Conboy K, ‘Detention without trial in Kenya’, 447-448. ] [66: Kuria G, Murungi K, ‘The constitution and detention without trial in Kenya’ 16 University of Ghana Law Journal, 1982-1985, 177. It is worth noting, however, that the Act had indeed provided for the detention of persons as a measure for regulating the preservation of public security despite the misuse of that provision in orchestrating arbitrary detentions.] [67: Africa Watch Committee, Kenya: Taking liberties, 1991, 121.] The said Emergency legislations also required government to gazette and therefore enumerate political prisoners being held without charge.[footnoteRef:68] However, since criminal charges were concocted for political reasons, a practice intrinsic to the nature of the colonial government,the government could effectively detain without having to admit to it. [68: Africa Watch Committee, Kenya: Taking liberties, 1991, 123.] 2.4 Jurisprudence emanating from domestic courts prior to the promulgation of 2010 constitution The colonial legacy (and its decay) bedevilled Kenya’s judiciary, having adopted an alien justice system from the colonialists. The legal and judicial systems that were put in place during the colonial era had not been designed to uphold or protect the fundamental rights and freedoms of the colonised. [footnoteRef:69] These same systems were, unfortunately, inherited by the post colonial regimes without much structural change.[footnoteRef:70] At the heart of the human rights crisis in Kenya was the lack of an independent judiciary. Since Kenya gained her independence, the successive regimes succeeded in weakening the judiciary by putting in place policy measures that disabled it from acting as a check and balance to the excesses of the other arms of government.[footnoteRef:71] Courts were used to dispose of political opponents and critics.[footnoteRef:72] As such, the malleability of the judiciary made it a willing and faithful participant in the entire machination used by the government to undermine the human rights and freedoms of Kenyan citizens whenever it was in the interest of the ruling elite to do so.[footnoteRef:73] [69: Kenya Human Rights Commission, Surviving after torture: A case digest on the struggle for justice by torture survivors in Kenya, 2009, 40.] [70: Kenya Human Rights Commission, Surviving after torture: A case digest on the struggle for justice by torture survivors in Kenya, 2009, 40.] [71: Kenya Human Rights Commission, Surviving after torture:A case digest on the struggle for justice by torture survivors in Kenya, 2009, 40. These included the policy of appointing expatriate judges or acting judges, as well as the attempts to remove the security of tenure for all judges in 1986.] [72: Africa Watch Committee, Kenya: Taking liberties, 1991, 145.] [73: Kenya Human Rights Commission, A case digest on the struggle for justice by torture survivors in Kenya, 2009, 41.] Keeping in mind such a background of a tainted judiciary, it is palpable that our judiciary was largely but a system of injustice. As custodians of the law, the judiciary often failed to advance the rule of law and protect the fundamental rights and freedoms of citizens. Away from the politically motivated detentions, the proclivity of law enforcement officers to arbitrarily detain persons without charge (as part of the system of injustice) had also become ordinary practice.[footnoteRef:74] It follows, however, that great milestones would seem to have been achieved in certain momentous court decisions addressing that arbitrary practice; the tendency to hold persons without charge for periods exceeding the constitutionally prescribed limit. [74: Kiage P, Essentials of Criminal Procedure in Kenya, 44.] The determination in Albanus Mwasia Mutua v Republic[footnoteRef:75] heralded a new dawn of hope, salvaging the pathetic state of affairs in the realm of human rights and freedoms. Accordingly, this case highlights the dilemma that lies in the duty of courts. On the one hand, courts have an obligation to ensure that crime is appropriately punished where it is proved purposely for the protection of society. Equally on the other hand, courts have a duty to uphold the rights (particularly the rights guaranteed under the constitution) of persons charged with criminal offences.[footnoteRef:76] [75: Albanus Mwasia Mutua v Republic [2004] eKLR.] [76: Albanus Mwasia Mutua v Republic [2004] eKLR.] The appellant had been in custody for eight months from the date of his arrest with no explanation offered for that delay by the prosecution. In challenging his conviction and sentence of death for a charge of attempted robbery with violence, he claimed that any subsequent trial and proceedings following the violation of his constitutional rights was a nullity.[footnoteRef:77] [77: Albanus Mwasia Mutua v Republic [2004] eKLR.] Obviously, such a claim was destined to cause some considerable thought and anxiety with the prosecution’s case hanging by a thread. Even so, the Court of Appeal in that case was equally left to grapple with the inequity bound up with the delay. Interestingly, the court highlighted the duty of courts to give life to the provisions of the constitution as paramount to having those provisions in the first place.[footnoteRef:78] It follows that the bench, in fulfilling that duty, allowed the appeal deprecating the violation of constitutional rights. [78: Albanus Mwasia Mutua v Republic [2004] eKLR.] Several other decisions seemingly adopted the ‘strict approach’ where this issue was the subject of proceedings. By strict approach I denote an automatic annulment of the contested decision as a consequence of the infringement of the stipulated constitutional rights. To employ this concept would be to employ what we can call the constitutionalism approach. In the case of Ann Njogu and 5 others v Republic[footnoteRef:79]and Republic v James Njuguna Nyaga[footnoteRef:80], Mutungi J ordered the immediate release of the applicants adding that the Supreme Law of the country was very clear and specific. He added that the applicants could only be kept in custody for twenty-four hours and any continued detention after the tick of the sixtieth minute of the twenty-fourth hour constituted an unmitigated illegality. [79: Anne Njogu and 5 others v Republic [2007] eKLR.] [80: Republic v James Njuguna Nyaga [2007] eKLR.] It is also worth noting that the court in Ann Njogu, in reiterating the position on nullity, it asserted that: “…there is as yet no known cure for the nullity that results from attempted prosecution once it is shown that one’s constitutional and fundamental rights were violated prior to the purported institution of the criminal proceedings complained against…such prosecution is illegal, null and void.”[footnoteRef:81] [81: Anne Njogu and 5 others v Republic [2007] eKLR.] A similar stance was manifest in the case of Gerald Macharia Githuku v Republic[footnoteRef:82] where the court opined that the failure by the prosecution to abide by the constitutional requirement could not be disregarded. After all, Makhandia J in the case of Republic v Amos Karuga Karatu[footnoteRef:83] rightly stated that the law of the land had to be obeyed particularly by those entrusted to enforce it. Furthermore, if that supreme law of the land demanded that one be brought before court within twenty-four hours, that requirement had to be strictly observed.[footnoteRef:84] [82: Gerald Macharia Githuku v Republic [2008] eKLR.] [83: Republic v Amos Karuga Karatu [2008] eKLR.] [84: Republic v Amos Karuga Karatu [2008] eKLR.] The role of the judiciary is often hailed as the positive way of the dispensation of justice. In barring prosecution and acquitting offenders from their convictions, the lot of judges in these decisions rose to the occasion and reclaimed the judiciary’s mantle from the days when the courts chose to see no evil and hear no evil.[footnoteRef:85] It can be inferred that the judges must have taken one out of the books of realism. Evidently, having been guided by their conceptions of justice they exercised their discretion by scrupulously applying the law that sought to secure, enhance and protect the fundamental rights and freedoms of accused persons.[footnoteRef:86] [85: Republic v Amos Karuga Karatu [2008] eKLR. Makhandia J criticised the courts of law (then) for failing to stand up against the conduct of police to trample upon the fundamental rights of citizens. In his decision, he adds that it was as a result of that legacy that citizens lost faith in the judiciary to enforce and secure their constitutional and fundamental rights.] [86: Republic v Amos Karuga Karatu [2008] eKLR.] 2.5 Criticisms of the ‘Strict Approach’ These decisions raise very fundamental human rights issues, especially the violation of civil liberties, which are the bedrock of detention and subsequent torture. In light of these sentiments, we can agree that the judgements aptly lionize an arrested person’s constitutional right.[footnoteRef:87] On the flipside, however, they also present valid concerns that beset the judiciary. Firstly, that a remedy of automatic acquittal gives the impression of a ‘sure-way-out’ of punishment where criminal charges levelled against an offender are proved. Kiage adds that such a remedy invites mischief in that criminals can collude with corrupt officials in effecting the delay that would thus result in their acquittal.[footnoteRef:88] As it is, corruption is already a rampant phenomenon with the Kenya police topping the list of the most corrupt government departments.[footnoteRef:89] Similarly, a remedy of acquittal trumps societal interest. Such a remedy contravenes the greatest good for the greatest number theory of law as it compromises public safety when offenders, sometimes of serious crimes, return to the community.[footnoteRef:90] [87: Kiage P, Essentials of Criminal Procedure in Kenya, 47.] [88: Kiage P, Essentials of Criminal Procedure in Kenya, 47.] [89: ‘Kenya police tops corruption list’ Daily Nation, 27 March 2018 - on 10 January 2018.] [90: Kiage P, Essentials of Criminal Procedure in Kenya, 47.] CHAPTER THREE: PRE-TRIAL DETENTION AND THE NEW CONSTITUTIONAL DISPENSATION 3.1 Introduction With the advent of the 2010 Constitution came a new era for governance, with a notable emphasis on rights and freedoms meticulously codified in the Bill of Rights under its Chapter Four. The elaboration and elevation of the rights of arrested persons, in clear response to a history of gross violations, is one of the most significant criminal justice developments brought about by the adoption of the new constitution.[footnoteRef:91] Another key highlight of said constitution (and at the centre of reforms in the criminal justice sector) is the inclusion of clauses providing that; general rules of international law, ratified treaties and conventions shall form part of Kenyan law.[footnoteRef:92] These imply the obligation placed on Kenya to conform to international standards and principles. Pertinent to this study is the trial within a reasonable time guarantee stemming from international human rights law. [91: Kiage P, Essentials of Criminal Procedure in Kenya, 42. See also Article 48-50 Constitution of Kenya (2010).] [92: Article 2(5) Constitution of Kenya (2010); Article 2(6), Constitution of Kenya (2010).] A recent comprehensive audit report of Kenya’s criminal justice system by the National Council on the Administration of Justice (NCAJ), however, revealed an unsettling reality of the continued violation of these protected rights and freedoms. According to NCAJ’s audit report, only 32% of police entries are converted to charges in court.[footnoteRef:93] This clearly indicates the alarming rates at which persons are detained unlawfully and without charge. Furthermore, 70% of those police entries comprise petty offenses.[footnoteRef:94] [93: National Council on the Administration of Justice, Understanding pre-trial detention in respect to case flow management and conditions of detention, 2017, xxix.] [94: National Council on the Administration of Justice, Understanding pre-trial detention in respect to case flow management and conditions of detention, 2017, xxix.] The audit further established that forty-five percent of police arrests and detention are effected during the weekends.[footnoteRef:95]This means that compliance with the stipulated twenty-four hour rule becomes difficult to achieve to that extent. Aside with the exception of weekends, however, a strict adherence to that rule would require that a hundred percent be released on the same day or within a day (for those arrested Sunday to Thursday).[footnoteRef:96] On the contrary, available data shows that only eighty one percent are released on the same day or within one day (where one is arrested Sunday to Thursday).[footnoteRef:97] [95: National Council on the Administration of Justice, Understanding pre-trial detention in respect to case flow management and conditions of detention, 2017, xxix.] [96: National Council on the Administration of Justice, Understanding pre-trial detention in respect to case flow management and conditions of detention, 2017, 96.] [97: National Council on the Administration of Justice, Understanding pre-trial detention in respect to case flow management and conditions of detention, 2017, 96.] Bearing in mind that there could be circumstances and valid reasons necessitating detention beyond the prescribed limit, such statistics grossly indict the criminal justice system.[footnoteRef:98] Kimaru J in Michael Rotich v Republic[footnoteRef:99]was concerned that the country risked plunging back into the dark days of detention without trial. He was addressing the current trend of police to seek court orders to detain suspects for further investigations without a formal charge in court which he declared illegal and against the constitution.. The practice of illegal detention was more recently condemned by judges that presided over the claims put forward by firebrand politician Miguna Miguna as the courts vindicated his constitutional rights.[footnoteRef:100] [98: Section 33, Prevention of Terrorism Act (Act No. 30 of 2012). The Act provides for the extension of detention where there is reasonable ground to believe that detention beyond twenty-four hours is necessary.] [99: Michael Rotich v Republic [2016] eKLR.] [100: Miguna Miguna v Director of Public Prosecutions & 2 others [2018] eKLR; Miguna Miguna v Fred Okengo Matiang’i Cabinet Secretary, Ministry of Interior and Coordination of National Government & 7 others [2018] eKLR.] Perhaps these continued violations have thrown out the gains and admirable approach that had earlier been jurisprudentially developed as highlighted in the previous chapter. This chapter looks into this issue amidst the new constitutional dispensation. Recalling the difficulty in finding equilibrium between the rights of arrested persons and concerns of societal interest, this chapter also interrogates how courts have addressed the same in granting a suitable remedy. 3.2 The decision in Julius Kamau Mbugua v Republic: Alternative to the nullity? The previous chapter highlights the dilemma that courts face in affording one their individual constitutionally guaranteed rights and freedoms while considering the interests of the public. Courts persistently reinforced the twenty-four hour constitutional requirement. This was evident in case law as arrested persons were acquitted due to the nullity of their prosecution, despite sufficient evidence of their commission of the offence being adduced. However, that approach has been criticised as some judges have considered an acquittal as a disproportionate, inappropriate and draconian remedy that compromises public security.[footnoteRef:101] After all, the Utilitarian doctrine dictates the greatest good for the greatest number. This view was explicit in the court’s landmark decision in Julius Kamau Mbugua v Republic[footnoteRef:102] delivered abreast the new constitutional order. In that case, the court espoused that an alleged unlawful detention did not exonerate an accused from the crime he or she was alleged to have committed.[footnoteRef:103] The appellant had been tried for allegedly murdering his wife. He sought to be discharged on grounds that he had been illegally detained for about a hundred and seven days before he was taken before court and charged. His appeal was dismissed with the court rightly asserting that the breach of his constitutional right could only be vindicated by damages.[footnoteRef:104] [101: Kiage P, Essentials of Criminal Procedure in Kenya, 50.] [102: Julius Kamau Mbugua v Republic [2010] eKLR.] [103: Julius Kamau Mbugua v Republic [2010] eKLR.] [104: Julius Kamau Mbugua v Republic [2010] eKLR.] The bench in determining the matter echoed the decision by Emukule J in Kihoro v Attorney General[footnoteRef:105] where monetary compensation was awarded for the breach of the right to liberty of the applicant. That decision was a great development as it was the first time the country’s highest appellate court had awarded damages for breach of fundamental rights and freedoms under the constitution.[footnoteRef:106] Apart from prescribing compensation in monetary terms, Emukule J affirmed that the supremacy of the constitution could not be subordinated to justify illegal confinement of persons for inordinate periods.[footnoteRef:107] As such, police were not entitled to break the law by holding persons longer than is allowed in law without charging them.[footnoteRef:108] However, where there was such violation, damages was an entitlement of a citizen whose rights were proved to have been violated.[footnoteRef:109] [105: Kihoro v Attorney General of Kenya [1993] 23 LRC 390. This case was at the heart of the protection and vindication of fundamental rights and freedoms as against the State’s continued, consistent and concerted abuse of those rights and freedoms. ] [106: Gathii J, ‘Wanyiri Kihoro v Attorney General: New insights on the protection and enforcement of fundamental rights and freedoms in Kenya’ 1(1) University of Nairobi Law Journal, 1994, 149.] [107: Kihoro v Attorney General of Kenya [1993] 23 LRC 390.] [108: Gathii J, ‘Wanyiri Kihoro v Attorney General’, 149.] [109: Kihoro v Attorney General of Kenya [1993] 23 LRC 390.] The Julius case further highlights the obligation placed on the accused to raise a violation of any constitutional right at the earliest opportunity possible. This is so as to enable the court to give an effective remedy. Where one fails to do so, he or she is deemed to have waived the right to seek any enforcement of the right.[footnoteRef:110] [110: Julius Kamau Mbugua v Republic [2010] eKLR.] In light of this departure from the remedy of acquittal, it follows that numerous applications for appeal on such grounds have been dismissed. After all, a prosecution mounted in breach of the law no longer constituted a nullity. Instead, compensation (though civil in nature) was the appropriate remedy that ought to be sought in a forum independent of the trial process. Recalling that there was no known cure for the nullity, have the courts managed to address this concern? We can deduce that in an attempt to do so, judges have drawn a distinction as to whether the accused’s right to personal liberty is trial related or not. The court in Julius established that the deprivation of liberty was not trial related. Instead, it was a right to which every citizen is entitled to, attracting a duty on the government to ensure that every citizen enjoyed the right. This was in contrast to the guarantee of an accused to have their trial within a reasonable time. This guarantee is consonant to the trial process as it was designed to ensure that the accused does not suffer from prolonged uncertainty about his fate.[footnoteRef:111] The right to trial within a reasonable time similarly attracts a duty on courts to ensure that a speedy trial is observed. Mindful of such distinction, conduct that is not trial related is not in itself fatal to the trial process. [111: Julius Kamau Mbugua v Republic [2010] eKLR.] However, I disagree with this view. I propose that the rights are so closely connected that drawing a distinction would be incorrect. For the right to trial within a reasonable time- a facet of the non-derogable right to a fair trial- to be actualized, it is paramount that one be presented before a court within twenty-four hours. Failure to which an arrested or accused person is deprived his or her right to liberty; a right whose sacrosanct nature cannot be overstated. The central reason for my view is that procedure is the route by which decisions are reached. In that regard, it is only prudent that all participants in the judicial process submit to the rule of procedure if we are to arrive at just outcomes. Otherwise, the system’s credibility suffers, administration of justice is corrupted and the rule of is law undermined. 3.3 A suitable remedy: The ‘Strict Approach’ versus the ‘Balanced Approach’ The study has so far highlighted two remedies granted by our domestic courts for arbitrary detention. These are acquittal and compensation. This section of the chapter provides an analysis of the suitability of the two remedies. On the international arena, remedies for unlawful detention have well been entrenched in human rights statutes. The International Covenant on Civil and Political Rights(ICCPR), in defence of the liberty and security of the person, aptly prescribes release when it is established that detention is unlawful.[footnoteRef:112] Nonetheless, anyone who has been a victim of unlawful detention shall have an enforceable right to compensation.[footnoteRef:113] Similarly, the American Convention on Human Rights (ACHR) provides for the right of every person to be compensated in the event that he or she has been sentenced by a final judgement through a miscarriage of justice.[footnoteRef:114] The European Convention on Human Rights (ECHR), in mirroring the remedies in the aforementioned statutes, provides for an enforceable right to compensation for victims of unlawful detention.[footnoteRef:115] Sangeeta Shah further suggests that national courts must have the power to release and award compensation.[footnoteRef:116] Our domestic courts have been empowered by our very own constitution to that extent. The courts in, dispensing justice to all, are expected to interpret the constitution in a manner that advances the rule of law, the human rights and fundamental freedoms as captured in the Bill of Rights.[footnoteRef:117] In doing so, they are mandated to hear and determine applications for redress as well as grant appropriate relief- a broad expression- to aggrieved parties. [112: Article 9(4), ICCPR, 16 December 1966, 999 UNTS 171.] [113: Article 9(5), ICCPR, 16 December 1966, 999 UNTS 171.] [114: Article 10 ACHR, 22 November 1969 O.A.S.T.S. No. 36.] [115: Article 5(5)ECHR, 4 November 1950.] [116: Shah S, ‘International Human Rights Law’, 267.] [117: Article 259(1) (b), Constitution of Kenya (2010).] I earlier introduced the concept of a strict approach; a concept that provides for the automatic annulment of the contested decision as a consequence of the infringement on the stipulated constitutional rights. This was demonstrated when judges granted acquittals as an appropriate remedy. I wish to now bring your attention to yet another concept: the balanced approach. Here I denote a concept where there is no annulment of the contested decision per se. Instead, there is room for a balancing of interests when courts are tasked to determine matters. In doing so, the court would take into account whether a violation had a genuine impact on the trial process. The decision in Julius Kamau Mbugua encompasses this approach. Evidently, these two approaches have been the drivers in the disparity as to what ought to be a suitable remedy. I contend that a balanced approach, stemming from a utilitarian approach, proffers a sober approach in addressing this issue. In that case, monetary compensation is apparently the fitting remedy. However, I also propose that anything which interferes with speedy trial ought to be frowned upon. In this case, lengthy pre-trial incarcerations, sometimes without the prospects of being brought to trial, should be frowned upon. Consequently, a strict approach met the threshold of ensuring the protection of these constitutional guarantees. Otherwise, the enjoyment of one’s constitutional rights becomes illusory.[footnoteRef:118]Can you tell that I am just as caught up in the miasma of confusion as judges constantly are? As it is, however, I maintain that the right guaranteed under Article 49 (1) (f) (i) is one that is yet to be realised. [118: Shah S, ‘International Human Rights Law’, 259.] 3.4 The Poisoned Fruit of pre-trial detention In conclusion, the study appreciates courts’ efforts in tackling this issue despite the challenges that constantly unfold. In addition to compensating victims of unlawful detention, a person who is detained is entitled to petition for an order of habeas corpus.[footnoteRef:119] It is noteworthy that this constitutional right falls within the special category of non-derogable rights not subject to any limitation.[footnoteRef:120]Other alternative measures also include release of an accused person on bail or bond whenever possible with the advent laws providing for such release; and courts mitigating the sentence of a convicted person where they suffered lengthy periods in detention beyond the prescribed period. [119: Article 51 (2), Constitution of Kenya (2010).] [120: Article 25 (d), Constitution of Kenya (2010).] It follows that, amidst the rampant rates of pre-trial detention practices, there is still room for improvement within our criminal justice system. The next chapter of this study attempts to look into plausible criminal justice developments in other jurisdiction(s) that could inform the suggested reform. CHAPTER FOUR: PRE-TRIAL DETENTION IN SOUTH AFRICA; A COMPARATIVE PERSPECTIVE 4.1 Introduction Pre-trial detention is not a phenomenon unique to Kenya. So many other countries around the globe are not as blameless as the practice has increasingly become a ubiquitous one. The previous chapter, though appreciating the available remedies, pointed out the much needed improvement in confronting unlawful detentions. This chapter shall attempt to draw a comparison between the criminal justice system in Kenya and the criminal justice system in South Africa. In doing so, it shall be keen to highlight the efforts in negating the arbitrary detention practices within South Africa’s jurisdiction. 4.2 Justification for the comparative analysis We can agree that no matter how new a problem may be to us, we are probably never the first ones to tackle it. There are examples that we are likely to learn from. These examples can provide solutions that befit the context we are facing. Such an investigative process, through a comparative research, allows us to discern what works, what doesn’t and why. Consequently, we can borrow accordingly from such a valuable process. 4.2.1 South Africa I chose South Africa for this comparative study for various reasons. Firstly, the architecture of Kenya’s recently promulgated 2010 Constitution was heavily borrowed from that of the South African Constitution. The notable influence can be traced in its chapter on Bill of Rights which mirrors South Africa’s cornerstone of democracy.[footnoteRef:121] Secondly, a commonality can be drawn from the influence of the British colonial legacy on the legal systems of both Kenya and South Africa. Recalling that that legacy had no pretensions to the protection of fundamental rights and freedoms, human rights in South Africa have been a mixed bag with enormous challenges and difficulties. The Human Rights Watch recently pointed out that despite the country’s strong constitutional protections for human rights, public confidence in the government’s willingness to tackle human rights violations, corruption and respect for the rule of law has eroded.[footnoteRef:122] [121: Section 7(1),The Constitution of the Republic of South Africa (1996). This constitution recognises the Bill of Rights as the cornerstone of democracy.] [122: - on 29 January 2019.] The South African constitution prohibits arbitrary arrest and detention. An arrested person has the right to be brought before a court as soon as reasonably possible, but not later than forty-eight hours.[footnoteRef:123] The Kenyan Constitution is reminiscent of this provision apart from the dissimilar stipulated time limit; twenty-four hours as opposed to forty-eight hours. Nonetheless, we can infer that this guarantee speaks to affording an arrested person a fair trial by having their trial begun and concluded without unreasonable delay.[footnoteRef:124] [123: Section35(1) (d), The Constitution of the Republic of South Africa (1996).] [124: Section35(3) (d), The Constitution of the Republic of South Africa (1996).] Despite such legal infrastructure, numerous persons are arbitrarily arrested by the South African security forces.[footnoteRef:125] Lengthy pre-trial detention is commonplace.[footnoteRef:126] Petty offences have sometimes resulted in the unlawful detention of ordinary citizens.[footnoteRef:127] In similar fashion to their Kenyan law enforcement counterparts, ongoing or incomplete investigations have often been cited by police as a reason for continued detention. Evidently, these human rights violations mirror the challenges that dog Kenya’s criminal justice system. [125: Bureau of Democracy, Human Rights and Labor, Country reports on human rights practices, 2017, 7.] [126: Bureau of Democracy, Human Rights and Labor, Country reports on human rights practices, 2017, 10.] [127: Bureau of Democracy, Human Rights and Labor, Country reports on human rights practices, 2017, 7.] 4.2.2The South African Approach South African courts have similarly been seized of matters where finding a balance between the conflicting interests of the citizenry as against individual personal interests have been the subject. This was well demonstrated in Sanderson v The Attorney General.[footnoteRef:128] In fact, the Court of Appeal cited this decision in coming to its determination in the case of Julius Kamau Mbugua. [128: Sanderson v Attorney General [1998] (2) SA 38.] In Sanderson, the appellant was seeking redress for an alleged violation of his constitutional right to be brought to trial within a reasonable time after being charged. He was facing charges for allegedly interfering with two girls sexually contrary to South Africa’s Sexual Offences Act. The appellant claimed that he wasn’t charged until too late into the criminal process. Additionally, due to supervening events, the prosecution often sought a postponement of the trial process. It follows that in asserting his claim, he pointed out the frequent postponement of his trial (preventing its commencement) to constitute the two year delay. Sanderson made an application for a stay of proceedings. Clearly, a parallel can be drawn to the Kenyan context where accused persons have made applications for an acquittal or discharge as a ground for the violation of their constitutionally guaranteed rights. Likewise, the South African courts have a duty to grant appropriate relief where a right under the Bill of Rights has been infringed or threatened.[footnoteRef:129] In coming to its decision, the Constitutional Court of South Africa highlighted salient notions that are worth considering in this study. Firstly, the court took it upon itself to determine what kind of interests ‘a right to a fair trial without unreasonable delay’ intended to protect. In relying on a decision by the Supreme Court of Canada, these interests were perceived to include liberty, security and trial related interests: [129: Section38, The Constitution of the Republic of South Africa (1996).] “The right to security of the person is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimise exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.”[footnoteRef:130] [130: R v Morin [1992] 3 S.C.R. 286.] Coincidentally, there has been debate in other jurisdictions as to what the right to a fair trial entails with a particular focus on either including or excluding trial related interests.[footnoteRef:131] The judges in North America have suggested a narrow and closed-ended approach to that extent.[footnoteRef:132] Such an approach implies that the right to a speedy trial is limited to the list of rights enumerated under the provision of a fair trial. Other interests are catered for elsewhere in other constitutional provisions. This approach is similar to that of the judges in Julius where they were keen to separate the trial related interests from the trial. [131: Sanderson v Attorney General [1998] (2) SA 38.] [132: Sanderson v Attorney General [1998] (2) SA 38.] Kriegler J in Sanderson, however, was of a contrary opinion. He instead suggested a broad and open-ended approach; that the right to a fair trial conferred by the relevant constitutional provision is broader than the list of specific rights set out in its subsections.[footnoteRef:133] He further went on to add that: [133: Sanderson v Attorney General [1998] (2) SA 38.] “…criminal trials should be conducted in accordance with open-ended notions of basic fairness and justice. A narrow textual approach…is likely to miss important features of the provision.”[footnoteRef:134] [134: Sanderson v Attorney General [1998] (2) SA 38.] Secondly, while Kenya’s criminal justice system places a burden on an accused person to assert a violation of his rights, this court criticised that view citing that a majority of the accused are unrepresented and have no conception of a right to a speedy trial.[footnoteRef:135] Those challenges are not novel to our domestic legal system. [135: Sanderson v Attorney General [1998] (2) SA 38.] The judge indeed made a finding that the appellant’s right was grossly violated. The onus was now upon the court to determine an appropriate relief. An appropriate relief had been interpreted to mean: a suitable form of relief which vindicates the Constitution and acts as a deterrent against further violations.[footnoteRef:136] In making this determination, the court found itself at an uncommon crossroad. Kriegler J opined that: [136: Sanderson v Attorney General [1998] (2) SA 38.] “In making a judgement, courts must be constantly mindful of the profound social interest in bringing a person charged with a criminal offence to trial, and resolving the liability of the accused.[footnoteRef:137] [137: Sanderson v Attorney General [1998] (2) SA 38.] In leaning more towards adopting a balanced approach, and the utilitarian school of thought, the court found it difficult to grant the appellant’s application for a stay of proceedings. The court was of the view that such a relief was too radical hence inappropriate. Despite dismissing the appeal, the judge interestingly pointed out that; though the interests of others should not be disregarded, the requirement of a fair trial under the constitution be given precedence.[footnoteRef:138] [138: Sanderson v Attorney General [1998] (2) SA 38.] 4.3. The South African and Kenyan approach: An analysis The conflation of those two propositions has merely served to muddy the waters. In the least, it demonstrates the dilemma that has been the subject of this study. It has been particularly daunting trying to find that balance of interests. Both Kenya and South Africa apply the balanced approach with the scale often tipping to the greater societal interest. Which begs the question: where does such an approach leave the individual personal interests with courts always finding in favour of the greater society? In my view, an acquittal or discharge seemingly met the ‘vindicating the Constitution and deterrence’ threshold. However, I have had to take the bad with the good. Monetary compensation, on the other hand, doesn’t necessarily exonerate the unlawful practice. However, courts, maintaining the greatest good for the greatest number, have considered it as the appropriate remedy. In my view, these present a lacuna if the constitutional rights of an accused person are to be actualized. In that regard, I propose that perhaps a suitable remedy lies elsewhere and not in these conventional remedies. 4.4 Restorative Mechanisms: A model for Kenya’s criminal justice system Besides being a mockery to the rule of law, unlawful deprivation of liberty is a mockery to the virtues of justice. The overuse of pre-trial detention calls for a rational pathology of the criminal justice system in identifying what can be done to vindicate it. To that extent, it is my view that South Africa has made a commendable stride by adopting positive reforms to complement its criminal system- restorative justice processes. Restorative justice processes have increasingly gained more of a foothold in various legal systems. These are generally processes that shift the adjudication of crime from the traditional penal systems. Leading restorative justice scholar Howard Zehr rightly defines restorative justice as: “…an approach to involve those who have a stake in a specific offense and to collectively identify and address harms, needs and obligations in order to heal and put things as right as possible.”[footnoteRef:139] [139: Zehr H, ‘The intersection of restorative justice with trauma healing, conflict transformation and peacebuilding’ 18(1/2) Journal for Peace and Justice Studies, 2009, 20.] Contrary to a typical criminal justice system that principally punishes offenders; restorative processes view crime as violations of people and relationships rather than primarily law breaking.[footnoteRef:140] Furthermore, the purpose of justice is viewed as healing rather than punishment alone.[footnoteRef:141] Restorative justice programmes are of various types; victim offender mediation, healing circles, sentencing circles, community and family group conferencing, just to mention a few. However, a commonality can be drawn in their objectives to; unburden court dockets, reduce the incidences of recidivism and successfully re-integrating individuals as productive members of communities.[footnoteRef:142] [140: Zehr H, ‘The intersection of restorative justice with trauma healing, conflict transformation and peacebuilding’, 21.] [141: Van Ness D, Nolan P, ‘Legislating for restorative justice’ 10(53) Regent University Law Review, 1998, 53.] [142: ‘Pre-trial diversion from the criminal process’ 83(4) The Yale Law Journal, 1974, 827.] The use of restorative mechanisms in the criminal justice system is consonant with principles and standards within the international framework. For instance, The Basic Principles on the Use of Restorative Justice Programmes in criminal matters provides for the incorporation of restorative justice processes in all stages of the criminal process, subject to national law.[footnoteRef:143] Similarly, the Development and Implementation of Mediation and Restorative Justice Matters in the Criminal Justice System encourages the adoption of these processes for minor disputes.[footnoteRef:144] It further calls upon states to consider alternatives to the formal criminal justice proceedings with a view to promoting a culture favourable to restorative justice among law enforcement, judicial and social authorities as well as local communities.[footnoteRef:145] [143: Basic principles on the use of restorative justice programmes in criminal matters, 27 July 2000ECOSOC Res. 2000/14, U.N. Doc. E/2000/30.] [144: Development and Implementation of Mediation and Restorative Justice Measures in Criminal Justice 1999/26, adopted by the Economic and Social Council on 28 July 1999.] [145: Principle 5,Development and Implementation of Mediation and Restorative Justice Measures in Criminal Justice.] In South Africa, the widely used model of restorative mechanisms is the Community or Family Group Conference (FGC). The origins of this process of resolving conflict can be drawn from the traditional whanau process of the Maori aboriginal community in New Zealand.[footnoteRef:146] The restorative process was primarily used in New Zealand as a response to youth offending. This model of restorative justice is now widely used in modified form as a police initiated diversion approach in South Africa.[footnoteRef:147] [146: Van Ness D, Strong HK, Restoring justice: An introduction to restorative justice, 4th ed, Routledge, London, 2010, 33.] [147: United Nations Office on Drugs and Crime, Handbook on restorative justice programs, 2006, 21.] The conferencing process, usually steered by a facilitator, is a face to face meeting that brings together the victim and the offender along with their support systems; that is their families, friends, relatives and other members of the community. The mandate of the process is to address the offender with the consequences of the crime, develop a reparative plan and sometimes determine the need for restrictive supervision or custody where serious cases are involved.[footnoteRef:148] Additionally, the conferencing process also explores the appropriate ways to prevent offender recidivism.[footnoteRef:149] This is often achieved through monitoring the offender’s future behaviour, ensuring their compliance with the rehabilitative and reparative measures that had been agreed upon. [148: United Nations Office on Drugs and Crime, Handbook on restorative justice programs, 2006, 21.] [149: United Nations Office on Drugs and Crime, Handbook on restorative justice programs, 2006, 21.] These processes positively transform the criminal system. Charging the family or the community with the responsibility of monitoring an offender can also acts as an alternative measure programme to the traditional criminal justice system. It can be inferred that adopting these processes provide a potential avenue for mitigating mass incarcerations including pre-trial detention practices in criminal justice systems. Aside from hailing its positives, it is also necessary to acknowledge the different challenges that restorative justice presents if we are to at all consider the inclusion of these processes. Firstly, the restorative model evidently poses the danger of taking away the state’s role. We can agree that it is generally within the purview of state’s jurisdiction to prosecute crime with the primary aim to meet the needs and interests of the people. However, inclusion of search processes seems to overlap on that role of the state.[footnoteRef:150] Another challenge is the possibility of bias in restorative processes which a formal criminal process may attempt to protect against.[footnoteRef:151] This can be attributed to instances where the community may implement its own notions of justice. Furthermore, restorative justice is of a subjective nature where matters are determined on a case by case basis rather than the usual precedent guiding trial processes. Lastly, the inclusion of restorative mechanisms may be difficult to incorporate for some offences.[footnoteRef:152] This ultimately means that there exists the danger of not repairing harm. [150: Hanan E, ‘Decriminalizing violence: A critique of restorative justice and proposal for diversionary mediation’ 46(123) New Mexico Law Review, 2016, 138.] [151: Hanan E, ‘Decriminalizing violence’, 166.] [152: Daly K, ‘Restorative justice: the real story’ 4(1)Punishment & Society, 2002, 70. ] 4.5. Lessons for Kenya: Case Study of Republic v Mohamed Abdow Mohamed An attempt at restorative processes within Kenya’s penal system was highlighted in the court’s landmark decision in Republic v Mohamed Abdow Mohamed[footnoteRef:153] where two families reached an out of court settlement that was deemed valid. Mohamed was facing murder charges. Just as the trial was set to commence, the accused’s family withdrew the charges as they did not wish to pursue the matter anymore. This was after Mohamed’s family and that of the accused had negotiations and reconciled, and compensation -blood money- was paid out.[footnoteRef:154] It would be expected that this decision championed the basis upon which alternative mechanisms can be applied in our penal system. On the contrary, it raised concerns as to whether such processes were appropriate and if they could be applied in criminal cases. [153: Republic v Mohamed Abdow Mohamed [2013] eKLR.] [154: Republic v Mohamed Abdow Mohamed [2013] eKLR.] These concerns were evident in Lesiit J’s decision in Republic v Abdulahi Noor Mohamed[footnoteRef:155] where she disallowed the parties’ application to have the matter (a murder charge) settled out of court. Principally, she pointed out the need to streamline application of any such mechanisms to ensure consonance with the constitutional principles and the requirements set under Article 159(3) of the constitution owing to the seriousness of some offences.[footnoteRef:156] In this regard, we can conclude that reluctance to adopt restorative mechanisms in criminal matters is tied to the nature of the offence, whether capital or not, in the instances where they have been invoked. [155: Republic v Abdulahi Noor Mohamed [2016] eKLR.] [156: Republic v Abdulahi Noor Mohamed [2016] eKLR. Traditional dispute resolution mechanisms shall not be used in a way that contravenes the Bill of Rights, is repugnant to justice and morality, and is inconsistent with the Constitution or any written law.] Considering that a majority of people currently suffer detention, Kenya can borrow a leaf from South Africa’s book. Mindful that we may not necessarily adopt similar restorative justice mechanisms as South Africa; our traditional justice processes can be modified with restorative justice mechanisms in order to enhance their practical application to cases. A rational pathology of our criminal justice system and restorative processes (critical of their challenges as well) will be instrumental in identifying what fits best. I further contend that while restorative mechanisms may have limited applicability in felonies, there’s plenty of room for their appropriateness and applicability where petty offences have been committed. CHAPTER FIVE: FINDINGS, RECOMMENDATIONS AND CONCLUSION 5.1 Introduction The criminal justice system aims to punish only those persons whose guilt has been established, and only, through a fair trial. Certain safeguards have been provided for in our Supreme law of the land that are paramount to render the criminal justice more coherent and fair. Such is the right to be presumed innocent until proven guilty. However, it is regrettable that arrested and accused persons continue to suffer prejudices that resemble the kind of punishment that, ideally, ought only to be imposed on convicted persons. This chapter concludes the study by reporting on its findings and giving its recommendations on possible remedies to pre-trial detention. 5.2 Findings From the onset, the objective of the study was to investigate a suitable remedy for the increased pre-trial detention practice in society today. In doing so, it particularly looked into the remedies that different courts have granted in the past and currently; their suitability and whether there are possibly other remedies that can be considered in reforming Kenya’s criminal justice system. This was achieved through an analysis of decided cases coalescing into those themes. In light of the discussions concerning what ought to be a suitable remedy, the bone of contention has been what takes precedence between public and individual interests. As such, the study took note of the general fact that we are not merely atomised individuals whose interests are divorced from those of society. In that regard, a difficulty was undeniably manifest in attempting to balance societal interests and the private individual rights of an accused person. This was evident in the different approaches discussed (guided by the different legal theories), their merits as well as their demerits. The study proposed that the conventional remedies granted did not adequately vindicate the Constitution or deter the arbitrary practice. As such, the study was further of the view that the right encapsulated under article 49 (1) (f) (i) was one yet to be realised. Consequently, it set out to interrogate other possible ways in which the arbitrary practice can be confronted. This was achieved through a comparative study, where the study looked into South Africa’s criminal system as well as the positive reform(s) with which that system possibly tackled the issue of pre-trial detention. 5.3 Recommendations Kriegler J in Sanderson alluded to the cardinal nature of the Bill of rights. He suggested that the Bill of rights was not just a set of aspirational directive principles of state policy; it is intended that the state should make whatever arrangements necessary to avoid rights violations.[footnoteRef:157] Accordingly, this study seeks to make the following recommendations: [157: Sanderson v Attorney General [1998].] 5.3.1 Restorative Mechanisms for Petty Criminal Offenders Restorative justice processes bring a new perception to the justice system. Notably, they represent a major paradigm shift in the way society relates to offenders and ultimately to crime and justice. However, it is evident that Kenya’s criminal system is quite reluctant when it comes to their applicability and/or appropriateness as precedented in critiques of the court’s decision in the Abdow Case. Additionally, besides extrapolating their applicability in our criminal system by virtue of Article 159 of our constitution there is no single piece of legislation or policy guidelines that affirmatively recognise the use of restorative justice processes and how to incorporate them into our criminal justice system. As such, legislation on restorative processes would add to the perceived legitimacy of these programmes. A majority of offenders within the criminal system have been identified to be young offenders between the ages of 18 and 35 years having committed petty offences.[footnoteRef:158] Similarly, concerns of recidivism as per NCAJ’s audit report continually challenge Kenya’s criminal system.[footnoteRef:159] Having in mind how restorative justice ensures collaborative, inclusive processes and outcomes mutually agreed upon by the parties, these processes have the potential to cater to such challenges. [158: National Council on the Administration of Justice, Understanding pre-trial detention in respect to case flow management and conditions of detention, 2017, xxix. The report also indicates that seventy-percent of police entries in Kenya comprise petty offences.] [159: National Council on the Administration of Justice, Understanding pre-trial detention in respect to case flow management and conditions of detention, 2017, 152.] These processes also provide an alternative to [petty] offenders shielding them from the rigors of being subjected to the criminal justice system. As it is, for instance, incarcerations provide a basis for gross violations of fundamental human rights and freedoms. Reducing contact with the penal system altogether as a result of a shift to restorative means could prevent such gross violations. 5.3.2 Special Plea Courts The Law Society of Kenya (LSK) has recently filed a constitutional petition seeking orders to compel the Chief Justice to establish courts that will operate over the public holidays and the weekend.[footnoteRef:160] This move comes alongside claims of the tendency of police to arrest suspects just before a public holiday or on Fridays hence denying them their right to be presented to court within the constitutionally required twenty-four hours. In fact, this claim was well demonstrated in the recent judiciary audit report. The petition also points out a corruption dimension where police tend to extort money on threats of arrest and incarceration over weekends and public holidays.[footnoteRef:161] The LSK believes such culture would dissipate if these special courts are established. [160: Owino S, ‘Cases to watch out for in 2019’ Sunday Nation, 20 January 2019, 30.] [161: Owino S, ‘Cases to watch out for in 2019’ Sunday Nation, 20 January 2019, 30.] This is a plausible move by the LSK in the advocacy of human rights protection. Though the case is yet to be determined, it is my view that a decision affirming LSK’s claim would be momentous towards the twenty-four rule, bolstering the fundamental rights and freedoms of accused persons. In the meantime, this is a case whose determination is definitely one to watch out for. BIBLIOGRAPHY a) Books Kiage P, Essentials of criminal procedure in Kenya, Law Africa, Nairobi, 2010. Kariuki J, ‘Mau Mau detainee’, Oxford University Press, Nairobi, 1963. Moeckli D, Shah S and Sivakumaran S, International Human Rights Law, 2nd ed, Oxford University Press, London 2014. 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