Situational Analysis
6.1 Protecting the pretrial rights of accused persons and safeguarding the interests of justice requires effective coordination and cooperation among the criminal justice institutions.
6.2 In addition to the right to be presumed innocent, and the right to bail on reasonable conditions unless there are compelling reasons not to be released,
the Constitution grants accused persons the right to be held separately from persons who are serving a sentence, the right to be brought to court as soon as reasonably possible but not later than twenty-four hours after being arrested, the right to legal counsel, and the right to have the trial begin and conclude without reasonable delay. As we have noted, the CPC also seeks to protect the right to a speedy trial of an accused person who has been detained in prison by stipulating that a court shall not adjourn the hearing of his or her case for more than fifteen days. It should also be emphasized that a pretrial detainee “retains all the rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular right or a fundamental freedom is clearly incompatible with the fact that the person is detained.” For this reason, the Constitution stipulates that pretrial detainees must be treated humanely, in accordance with the relevant international human rights instruments. However, these safeguards are not extended to accused persons in many cases. For example, cases are usually adjourned for periods
of three to four months. Further, serious cases – for example murder – take an average of four years to conclude.
6.3 Pretrial detainees often remain in custody for lengthy periods without having been convicted of any offence thereby undermining the principle of the
presumption of innocence. In general, accused persons who are mentally ill tend to experience longer periods of detention than their normal counterparts since the judicial process of determining whether they are of sound mind and hence capable of making their defense is not regulated. In practice, this process can take up to five years.
6.4 The conditions of police stations and prisons are poor. These places of detention are overcrowded since they house many more inmates than they were designed to hold, and pretrial detainees make up almost half of the prison population. Further, accused persons are detained in worse conditions than convicts. This may be attributed to two factors. First, pretrial detention is seen as a temporary circumstance with the ultimate goal being the dismissal of charges, acquittal or conviction after trial. As a result, pretrial detention occurs in facilities that are ill equipped to deliver health services or to house longterm residents, particularly police stations. Second, the law does not allow pretrial detainees to participate in prison programs that facilitate recovery and reentry into the community, since these programs are characterized as rehabilitation programs. But a person who has not been convicted cannot by definition be rehabilitated. Accordingly, there is an urgent need to open up the conditions of pretrial detention to wider scrutiny, and to establish regular monitoring and public reporting mechanisms.
6.5 The majority of pretrial detainees in Kenya are young, come from poor families, and have little or no education.74 A good number of these pretrial detainees are persons who have been charged with petty offences such as creating a disturbance, loitering, brewing illicit liquor, touting, minor traffic offences, simple thefts such as shoplifting, being drunk and disorderly, and trespass.
6.6 Children are mixed with adults in the places of detention, contrary to the requirements of the law. In some cases, these are children who are not in conflict with the law, but have no one to take care of them outside the places of detention. Nevertheless, such children are treated as prisoners, if only for
purposes of accounting and providing for them. Another common problem is that not only do boys and girls tend to reside in the same remand homes, but also children in need of care and protection are often mixed with child
offenders. Indeed, it is not uncommon to find a boy who has been accused of defilement being detained in a remand home together with the girl he is accused of defiling. In such cases, the girls are often vulnerable from attack by the boys.
6.7 As far as the transportation of detainees from places of detention to court is concerned, the existing division of responsibility is that the National
Police Service (NPS) is responsible for transporting pretrial detainees, while the Kenya Prisons Service (KPS) is responsible for transporting convicted persons. In practice, however, the KPS transports pretrial detainees in some cases, while in other cases the NPS collects pretrial detainees from prison precincts and transports them to court. This arrangement is fraught with considerable challenges. For example, the NPS sometimes delays or fails to transport pretrial detainees, for example, due to lack of suitable vehicles or fuel. As a result, the affected pretrial detainees end up missing their court dates, thereby prolonging the duration of their detention and delaying their trials. This problem also affects child offenders: the officers in charge of children remand homes sometimes fail to take child offenders to court on their scheduled dates, primarily due to the shortage of personnel.
6.8 Idleness among pretrial detainees is a major problem in prisons, since the law prohibits them from working while in prison. Many pretrial detainees see it as a severe form of enforced punishment. In this environment, it is easy for petty offenders to be radicalized. And although the prisons endeavor to stem such radicalization by separating petty offenders from serious offenders, they are not usually successful given the high levels of congestion, and the difficulty of preventing prisoners from interacting in the prison precincts.
6.9 Women have specific health and hygiene needs related to reproductive health, including sanitary and washing facilities, and provision of hygiene items such as sanitary towels, all of which they should be able to access without embarrassment. Further, pregnant women detainees have specific health needs and are entitled to adequate ante- and post-natal care. The failure to meet these needs can amount to degrading treatment.
6.10 Accused persons with special needs (such as persons with special mental health care needs, persons with disabilities and transgender prisoners) face considerable challenges in places of detention, such as discrimination and undignified treatment. Further, places of detention often do not accommodate the needs of such accused persons.
6.11 There is little understanding of bail and bond amongst the public. Many Kenyans have no knowledge of bail or bond, while a good number of those who claim to understand bail and bond think it is money paid to the police or the court for an accused person to be released from detention. Further, a significant number of Kenyans view the grant of bail or bond to person’s accused of serious crimes as a great injustice. A need therefore arises to enhance public understanding of bail and bond, with a view to increasing the public’s understanding and confidence in the process.
Policy Directions
6.12 In order for the rights of accused persons to be observed, cases should be investigated and prosecuted in a timely manner, and pretrial detainees should be transported to court on time whenever their cases are scheduled for mentions or trials, and accused persons should be treated humanely in places of detention.
6.13 The NPS and the KPS will ensure that every detained accused person is treated humanely and with respect for his or her dignity. In this respect, the NPS and the KPS have a duty to ensure that the detention of an accused
person is lawful, and that pretrial detainees enjoy their human rights, subject only to the restrictions that are unavoidable in a closed environment. These
rights include the right not to be subjected to any form of torture or degrading treatment. In particular, women should not be subjected to physical, sexual or psychological violence while in detention. Further, all prisoners are entitled to medical care according to their needs.
6.14 Judicial officers shall exercise their powers as visiting justices to ensure the conditions of the places of detention meet the internationally recognized
minimum standards.
6.15 Every police station should have a female police officer on duty at all times.
6.16 Women should be kept in separate quarters from men, and girls in separate quarters from boys. Further, mothers with children should be provided with separate accommodation.
6.17 The NPS and the KPS have a duty to ensure that the gender-specific health and other needs of female detainees are met.
6.18 Only female officers should attend to female detainees. Although male officers may be assigned to detention premises set aside for women, a female
officer should always accompany them. But where this is not feasible, the NPS and the KPS will ensure a minimum of female personnel and develop clear procedures that minimize the probability that female detainees will be
abused or ill treated in any way.
6.19 In order to ensure that accused persons are treated in a manner that is consistent with the Constitution and international human rights standards, it is important for the NPS and KPS to keep proper records for each pretrial detainee. Proper record keeping is an essential tool for preventing human rights violations, such as the denial of due process, torture, or enforced disappearance in custody.
6.20 Every police station and prison shall keep a register of all persons detained therein, which shall contain the following information:
(a) The particulars of every detainee;
(b) The reasons for his or her detention, and the authority for his or her commitment to detention;
(c) The date when regular reviews are due, whether the review took place, and the outcome of the review;
(d) Any requests for access to medical or legal assistance;
(e) Any complaints made by the detainee;
(f) Health status of detainee at the time of entry into the detention; and
(g) Any other relevant information.
6.21 Every pretrial detainee has the right to complain to the NPS, the KPS, the Independent Policing Oversight Authority (IPOA ), the Commission on the
Administration of Justice (CAJ ) and the courts, which should respond without undue delay. All such complaints should be recorded, and investigated promptly and impartially. In particular, women alleging sexual abuse should receive immediate protection and supervision during the investigation and for as long as needed.
6.22 The NPS and KPS will respectively furnish the courts with monthly accounts of the accused persons held on pretrial detention. These accounts should include lists of those who have been granted bail but are unable to meet the conditions set by the courts. The courts should use this information to ensure that no accused persons are detained for unreasonable periods, they are treated humanely in places of detention, and to facilitate the decongestion of places of detention.
6.23 Where a pretrial detainee disappears during detention, the court shall undertake a prompt inquiry into the disappearance.
6.24 The Judiciary will establish a case management system for criminal trials, which will build on section 205(1) of the CPC and whose objective will be to
facilitate the timely disposal of cases, thereby ensuring that accused persons are not held in places of detention for unduly long periods.
6.25 The NCAJ will streamline the process of transporting pretrial detainees.
6.26 Where the detention of a child offender is unavoidable, police officers should not to detain such a child with adults, and ensure that the child does not
associate with adults who are not the child’s relatives while the child is in detention.
6.27 The Director of Children’s Services has a duty to supervise children’s remand homes, and places of safe custody,78and shall report to the NCAJ on a regular
basis.
6.28 The NPS and the KPS will integrate the protection of the rights of accused persons with special needs in their management practices.
6.29 The NPS and the KPS will take into account the risk of abuse by other pretrial detainees when determining the allocation of accused persons with special
needs to ensure their protection.
6.30 The NCAJ will coordinate with relevant institutions to ensure that the conditions and services of places of detention are designed to protect the well being of prisoners with special needs.
6.31 The NCAJ will work with relevant institutions to raise the awareness police officers and prisons officers on the protection of the rights of prisoners with
special needs.
6.32 The NCAJ will initiate a campaign to educate public on issues relating to bail and bond. In this respect, the NCAJ will work with the Probation and Aftercare Service to make the public aware that the grant of bail does not amount to the acquittal of an accused person.
6.33 The NCAJ will coordinate with relevant institutions to enhance the provision of legal aid to pretrial detainees, with a view to safeguarding their pre-trial
rights.