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It is not right for the Judiciary to condone an emerging trend where an individual is arrested by the police, taken to court and, before being charged, the prosecution requests for the suspect to be placed under police custody for some time until investigations are completed.
The right to liberty and freedom is a fundamental one that is inherent to every human being. Article 29 of the Constitution recognises this fundamental right and the courts are under an obligation to jealously protect it.
A court must make certain determinations before ordering pre-trial detention.
It has a duty to determine whether there is probable cause to believe that the accused committed the crime, upon evaluating the veracity of the preliminary evidence tabled by both the investigation and prosecution teams.
Kenya has a very scary history and experience of detention without trial as well as police state.
The emerging dangerous trend of pre-trial detention and the extrajudicial killing of suspects are a grave betrayal of the people and their constitutional values. It is the worst travesty of justice.
Not surprisingly, it is the poor who make up the vast majority of those held in pre-trial detention or are extrajudicially killed.
The poor are more likely to come into conflict with the law and be detained pending trial, but less able to afford the keys to pre-trial release. The result is a horrific waste of human life.
The right to liberty and freedom can only be curtailed in circumstances provided for under the Constitution.
Article 21(1) of the supreme law imposes the duty upon the State and all its organs, including the Judiciary, “to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights”.
Pre-trial detention undermines the chance of a fair trial and the rule of law.
The majority of people who come into contact with criminal law know little about their rights.
They are legally presumed innocent until proven guilty, but end up being held in conditions that are worse than those of convicted prisoners — sometimes for years on end.
People in pre-trial detention are particularly likely to suffer violence and abuse.
High rates of pre-trial detention also contribute to widespread overcrowding in prisons, exacerbating poor conditions for inmates and heightening their risk of torture and ill-treatment.
The pre-trial stage of the criminal justice process is also particularly prone to corruption.
Pre-trial detention has a hugely damaging impact on defendants and their families and communities.
Even if a person is acquitted and released, they may still have lost their home and job. And they face the stigma of having been in prison when they return to the community.
Because of the severe and often irreversible negative effects of pre-trial detention, international law states that it should be the exception rather than the rule and that, if there is a risk, for example, of a person absconding, then the least intrusive measures possible should be applied.
However, in Kenya, pre-trial detention continues to be imposed systematically on those suspected of a criminal offence without considering whether or not it is necessary or proportionate, or if less intrusive measures could be applied.
Article 49(1) (a) (i) of the Constitution requires an arrested person to be promptly informed, in a language that they understand, the reasons for their arrest.
The trend where a person is arrested and arraigned within 24 hours, specifically for the prosecution to seek extension of time to continue to detain such persons without any charge or holding charges being preferred against them, is unconstitutional.
The police have no authority in law whatsoever to arrest and detain a person without sufficient grounds.
And those grounds can only be sufficient if the police have prima facie evidence, which can enable charges against the person to be undertaken with a disclosed offence.
That fact can then be presented in court in the form of a holding charge setting out the particular offence, which will enable the accused to know the reason for their arrest as provided for under Article 49(1) (a) of the Constitution.
It will not do for the prosecution to present an arrested person in court and seek their continued detention without lodging a charge or a holding charge.
This overuse and abuse of the pre-trial detention of suspects must end.
If the Judiciary continues to allow the pre-trial detention of suspects, it will end up eroding all the gains made in the advancement of human rights and fundamental freedoms as provided for in the Bill of Rights.
Mr Wainaina is the executive director, International Centre for Policy and Conflict. @NdunguWainaina
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