A Judiciary committee now wants a section of the criminal procedure code changed to bar police from detaining suspects before arraignment to allow further investigations.
Bail and Bond Implementation Committee led by High Court judge Jessie Lessit has recommended the review of Section 43 (4) of the code that provides that an arrested person accused of activities that could “disturb peace” may be detained pending an inquiry ordered by a magistrate.
The provision relies on Section 43(1) which provides that “a magistrate who is informed that a person is likely to commit any act that may breach peace or disturb public tranquility may require the person to who cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such a period of up to one year that the magistrate thinks fit.”
The section the committee wants reviewed or even expunged in toto gives the magistrate the discretion to order the incarceration of a suspect as long as the police claim they are yet to complete investigations.
The committee appointed by former Chief Justice Willy Mutunga in 2015 is mandated to
oversee the implementation of the bail and bond guidelines as well as reform their administration as part of judicial reforms.
It released its report on Thursday last week.
The committee argues the section is unconstitutional as it offends parts of Article 49 of the Constitution, which requires every arrested person to be released on bond or bail as a right.
“Section 43(4) is unconstitutional given the fact that a person can be detained in custody pending an inquiry with no provisions limiting how long that might take,” the report said.
“It is worth noting that breach of peace is punishable by one month of imprisonment or a fine only (Section 182 of the Penal Code),” it added.
In the alternative, the proposal said, the section can be amended to specify a fixed time within which the accused can be detained.
This would enable “uphold the fundamental principles of fair hearing that an accused person is presumed innocent, right to liberty and freedom from arbitrary detention..”
Human rights watch groups in the country have often complained that the section of the Penal Code has been massively abused by the police to detain people viewed as dissents to arbitrarily to slow them down.
The report also recommends that the courts should be reasonable and realistic in determining the amount of bail or bond.