Many Kenyans mistakenly believe that once a person is arrested, they have already been found guilty. In law, however, an arrest is merely the beginning of the criminal justice process. The Constitution of Kenya, 2010, guarantees every arrested person a range of rights aimed at protecting their liberty, dignity and right to a fair trial.
These safeguards are contained in Article 49 of the Constitution, as well as the Criminal Procedure Code and the National Police Service Act, which regulate how law enforcement officers should exercise their powers during arrest and detention.
According to lawyer Evans Ondieki, the rights guaranteed under Article 49 are fundamental to ensuring that justice is administered fairly and that suspects are protected from abuse of power.
“The letter and spirit of article 49 of the constitution is that an arrested person has: Right to legal representation Right not to self-incriminate. The presumption of innocence. These values protect the right to liberty which is sacrosanct Which is one of the pillars of the rule of law and due process,” says lawyer Evans Ondieki.
One of the first rights guaranteed under the Constitution is the right to know why you have been arrested. Police officers are required to inform a suspect, as soon as reasonably possible and in a language they understand, of the reason for the arrest. They must also explain the person’s right to remain silent and the consequences of waiving that right.
The Constitution also protects individuals from being compelled to incriminate themselves. An arrested person cannot be forced to answer questions or make statements that may later be used against them in court. This protection is intended to ensure that investigations are conducted lawfully and that confessions are not obtained through coercion or intimidation.
Another important safeguard is the right to legal representation. A person in police custody is entitled to communicate with an advocate of their choice and to notify a family member or any other person whose assistance may be necessary. In cases where substantial injustice may occur, the Constitution also provides for State-funded legal representation.
Police officers are equally bound by strict timelines when holding suspects in custody. The Constitution requires that an arrested person be presented before a court within 24 hours of arrest. Where the period expires outside normal court working hours or on a day when courts are not sitting, the suspect must be taken to court on the next available court day.
The right to bail or bond is another key constitutional protection. Unless the prosecution demonstrates compelling reasons, an arrested person is entitled to be released on reasonable bail or bond terms while awaiting trial. Courts may consider factors such as the likelihood of absconding, interference with witnesses, the seriousness of the offence and public safety before deciding whether to grant bail.
The Constitution further provides that arrested persons should not be treated as though they have already been convicted. Those in custody should be held separately from convicted prisoners, reflecting the principle that every accused person remains innocent until proven guilty by a court of law.
Kenyan law also protects the dignity and physical well-being of persons in custody. Torture, cruel, inhuman or degrading treatment is prohibited, and police officers are required to exercise their powers lawfully and with respect for human rights and fundamental freedoms.
Even after a suspect has been formally charged before a court, the presumption of innocence remains intact. It is the responsibility of the prosecution to prove every element of the case beyond reasonable doubt before a conviction can be entered.
Where any of these constitutional rights are violated, an individual has the right to seek redress before the courts. Depending on the circumstances, a judge may issue declarations, award compensation or grant any other appropriate remedy to enforce constitutional rights.
Although the National Police Service has the responsibility of preventing crime, maintaining public order and protecting lives and property, its powers are not unlimited. Officers may only arrest individuals where lawful grounds exist and may use only reasonable force where necessary. They cannot unlawfully detain suspects, deny them access to legal counsel, force confessions or subject them to torture or other forms of degrading treatment.
For Ondieki, understanding these constitutional safeguards is essential not only for lawyers and police officers but also for ordinary citizens.
“An informed public is better placed to safeguard its rights while allowing law enforcement agencies to perform their constitutional mandate within the limits of the law,” he says.
Knowing your rights during an arrest does not place anyone above the law. Rather, it ensures that the criminal justice system operates fairly, protects individual freedoms and upholds the constitutional values upon which Kenya’s democracy is founded.
