Why Friday arrests and detention past 24 hrs will soon be illegal

High Court judge George Odunga at a previous court session

A recent commentary made by High Court judge Justice George Odunga criticized the State’s arrest of crime suspects on Friday. The learned judge opined that the deliberate Friday arrests were in effect retrogressing the country back to the “dark days” i.e. period before the enactment of the 2010 Constitution.

“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,” asserted the learned High Court judge.

During the dark days i.e. during the Independence Constitution period, subject to Section 16 (3) (b) of the 1963 Kenya Constitution, police officers were required to produce suspects before a court of law within 24 hours after arrest although the police officers had the discretion of detaining suspects of capital offenses for up to 14 days so as long a valid reason for the detainment existed.

In dismissing arrests made on Friday, Justice George Odunga contended that arresting citizens on Fridays in a bid to avoid producing them in court within the stipulated 24 hours as outlined in Article 49 (f)(i) of the Kenyan Constitution was an abuse of police powers if not a total disregard for the rule of law and the underpinnings of the Kenyan democracy.

“To effect an arrest of a citizen after hours on a Friday in order to avoid arraigning him in court till after he has spent a number of days in custody without any justification for doing so, in my respectful view, amounts to abuse of power,” the judge declared.

The obiter dictum stemmed from a case that had been filed by a trader, Agnes Ngenesi. In the case Agnes Ngenesi had protested over the illegal and/or unlawful seizure and detention of her vehicle of registration number UAP 188T by one Mukhisa Wasilwa. Moreover, she contested charges brought against her by the DPP terming them an attempt to cover up the illegal and unlawful violation of her rights to property.

Furthermore, the judge avowed that courts of law should be cautious in entertaining applications filed by the prosecution to hold suspects at the expense of giving police more time to complete investigations. The judge categorically urged the law enforcement agencies to finalize investigations before deciding to prefer charges or not [as common in other jurisdictions such as the United States of America]. He maintained that it was only in rare cases where evidence was in a the form of a sworn affidavit that courts should allow this applications for detaining suspects past the stipulated 24 hour period. 

“Courts ought not to be used by investigating agencies as holding grounds for suspects while they are conducting investigations. To arrest anyone with a view to ensure that the person does not get access to constitutional redress with respect to the right to access bail amounts to abusing the legal process,” read part of the ruling.

In other developments, the Law Society of Kenya is working together with the judiciary to see whether court days can be introduced during Saturdays and Sundays. The ‘brave new bar’ acknowledges that Saturday and Sunday court sessions will help prevent the detaining of suspects past the stipulated 24 hour period.

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