The courts have slammed the unconstitutional pretext of incomplete investigations that the Police have for long been used to detain suspects for unnecessarily lengthy periods.
To circumvent the constitutional requirement of producing suspects in court within 24 hours, police prefer to take the suspect to court without preferring any charges. The prosecution then asks for more time to detain the suspect as investigations finalize.
Instead of the charge sheet, the police table an affidavit explaining the reasons why the detention should be extended.
Take, for instance, Blogger Cyprian Nyakundi was on earlier this month arrested over a post he made on social media on the coronavirus disease.
The blogger has been arrested more than once over similar allegations over the past three years. Among those who have sued Cyprian are Kirinyaga Governor Anne Mumbi Kamotho, Interior CS Fred Matiang’i and Nairobi Governor Mike Sonko.
Nyakundi was summoned and locked up at Central Police station over the post ahead of the possible arraignment. He was later released on a sh200,000 cash bail. This act of subjecting independent News sources, bloggers and journalists to harsh conditions have been criticized by a couple of Kenyans on Twitter—including Blogger Cyprian Nyakundi.
Last week, blogger Robert Alai was arrested and later arraigned over a fake post he had made. He was freed on Sh50,000 bail and blocked from making or tweeting posts on the coronavirus. Police have heightened operations on social media posts as a way of taming misinformation.
In the ruling made by the courts, the continued progressive interpretation of the Constitution by the Judiciary on illegal detention has caught security and investigative agencies flat-footed, for the detention to pass the legal test, there must be compelling reasons.
Among the grounds commonly cited by the police include: investigations are ongoing, witnesses are yet to record statements, the suspect is a flight risk, expert reports are unavailable, scenes of crime have been compromised, security of the suspect or witnesses is in jeopardy.
The courts have raised concerns on how the prosecuting officers (POs) and investigating officers (IO) rarely do inform a suspect of the reasons for his/her continued detention or the charge they are facing. Majority, mostly those appearing in person, learn of the charge in court when entering plea.
To justify the detention, investigators also cite other aspects of the investigations such as obtaining call data on the suspect’s mobile phone and securing a forensic report from the cybercrime unit. With judges now setting the bar high, police will have a harder task proving their case.
Article 49 of the Constitution provides that a suspect should be arraigned within 24 hours after arrest. Should the period end outside the ordinary court hours or on a day outside the ordinary court days, the suspect has to be produced before the end of the next court day.
A ruling rendered by Justice Luka Kimaru three years ago stating that police have no authority to arrest and detain any person without sufficient grounds has now become a reference.
“If this trend continues, it would erode all the gains made in the advancement of human rights and fundamental freedoms as provided for in the Bill of Rights,” Justice Kimaru argued.
Lawyer Felix Kiprono says that, where police fail to provide sufficient reasons to be granted custodial orders, the courts should release the suspect until such a time when police will be ready for trial.
He adds that, where the prosecution has enough evidence, it should be presented in court in form of a holding charge setting out the particular offence.
“The Director of Public Prosecutions (DPP) must comply with the law. Police ought to investigate first and piece up the evidence before effecting an arrest,” the lawyer says.
According the lawyer, some aspects of investigations like taking witness statements, obtaining call data and securing a forensic report can be accomplished even when the suspect is free.
Magistrates are also raising questions on the motive of police when suspects are produced in court late.
Recently, Milimani Senior Principal Magistrate Kennedy Cheruiyot questioned why the police had delayed charging two men accused of offering fake tender documents for the supply of 2,800 laptops valued at Sh180 million to the Office of the Deputy President.
The two, Mr Charles Kamolo Musinga and Mr Solomon Mwema, were arrested in Nairobi on March 12 and locked up at Parliament Police Station, but police produced them in court the following day in the afternoon.
The magistrate described such conduct as mischief, as it is aimed at ensuring the suspects remain in custody. This is because the processing of bail or bond takes time.
“To effect an arrest of a citizen after hours on a Friday in order to avoid producing him in court till after he has spent a number of days in custody without any justification amounts to abuse of power,” High Court Judge George Odunga said.
Kamata Kamata Fridays
High court Judge George Odunga has slammed the infamous kamata kamata Friday arrests and termed it unconstitutional. Odunga said Kamata kamata fridays would take the country back to the dark ages where people were arrested on a whim without sufficient justification.
Kamata Kamata Fridays is the practice the DPP, DCI and Police were using to make popularly Friday night arrests. The practice is dreaded as those netted face a weekend in a crowded prison cell before they can be brought before a court on Monday morning.
Justice Odunga, in the case Agnes Ngenesi Kinyua– Agnes Kinywa v Director of Public Prosecution & another  sided with the victims of these arrests expressing his belief that they should not take place.
“The practice that is ominously gaining ground in this country otherwise infamously known as “kamata kamata Friday arrests” whereby suspects are deliberately arrested on Fridays and kept in police custody over the weekend must not be permitted to take root,” provided the judge.
Odunga, in justifying his stance provided that the practice chipped away at the democratic gains that the country had made since the promulgation of the Constitution of Kenya 2010.
“It [the practice of kamata Fridays] would in effect take the country back to the dark days when suspects faced frivolous capital charges aimed at unlawfully incarcerating them with a view to achieving extraneous objectives, thereby unjustifiably denying them of their liberty. The attempt to claw back at non-existent powers ought to be restricted at all costs by the courts which are the temples of justice in this country,” stated the judge.
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