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	Protests in Kenya, often driven by socio-political or economic grievances, are a fundamental expression of democratic rights. However, they can sometimes lead to arrests, some of which may be deemed wrongful or unlawful. If you or someone you know is wrongfully arrested during a protest in Kenya, the Constitution of Kenya, 2010, provides robust protections to safeguard your rights. This article explores these constitutional protections, including the right to habeas corpus, to ensure you understand your legal recourse and how to navigate such situations.
A wrongful arrest occurs when an individual is detained without lawful justification, in violation of their constitutional rights, or through improper procedures. During protests, wrongful arrests may arise due to:
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Arrests without reasonable suspicion or evidence of a crime.
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Excessive use of force by law enforcement.
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Arrests targeting individuals exercising their constitutional rights to assembly and expression.
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Failure to inform the arrested person of the reason for their arrest.
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The Constitution of Kenya, 2010, establishes clear safeguards to protect individuals from such violations, ensuring that law enforcement operates within the boundaries of the law.
<h3 dir="ltr">Constitutional Protections for Arrested or Detained Persons</h3>
The Constitution of Kenya, 2010, is a progressive document that enshrines fundamental rights and freedoms, particularly in the Bill of Rights (Chapter Four). Below are the key constitutional protections relevant to individuals arrested or detained during protests:
<h4 dir="ltr">1. Right to Personal Liberty (Article 29)</h4>
Article 29 guarantees every person the right to freedom and security, protecting against arbitrary deprivation of liberty. This includes:
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Protection from Arbitrary Arrest: No one can be arrested or detained without a valid reason. During protests, authorities must demonstrate that the arrest is based on reasonable suspicion of a specific offense, such as incitement to violence or destruction of property.
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Freedom from Torture and Cruel Treatment: Article 29 prohibits torture, cruel, inhuman, or degrading treatment or punishment. Excessive force during arrests, such as beatings or teargassing peaceful protesters, violates this provision.
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Right to Humane Treatment: Detainees must be treated with dignity, including access to food, water, and medical care while in custody.
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If these rights are violated, the arrest may be deemed unlawful, and the individual can seek legal redress.
<h4 dir="ltr">2. Rights of Arrested Persons (Article 49)</h4>
Article 49 outlines specific protections for individuals arrested or detained, ensuring fair treatment and due process. These rights include:
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Right to Be Informed of the Reason for Arrest: Upon arrest, you must be promptly informed, in a language you understand, of the reason for your arrest and your rights.
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Right to Remain Silent: You have the right to remain silent and not be compelled to make any confession or admission that could be used against you.
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Right to Communicate with an Advocate: You are entitled to contact a lawyer or other person of your choice (e.g., family or friends) to inform them of your arrest and seek assistance.
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Right to Be Brought Before a Court Promptly:
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If not released, you must be brought before a court within 24 hours of arrest (or as soon as reasonably practicable if arrested on a weekend or public holiday).
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For serious offenses, such as those involving violence, the court may extend the detention period, but only with lawful justification.
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Right to Bail or Bond: Unless there are compelling reasons (e.g., risk of absconding or public safety concerns), you are entitled to be released on reasonable bail or bond terms pending trial.
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Right to Be Released if No Charges Are Filed: If no charges are filed within the stipulated time, you must be released.
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Failure to adhere to these provisions can render an arrest unlawful, providing grounds for legal action.
<h4 dir="ltr">3. Right to Freedom of Expression, Assembly, and Association (Articles 33, 36, and 37)</h4>
Protests are protected under the Constitution as part of the rights to freedom of expression (Article 33), association (Article 36), and peaceful assembly (Article 37). These rights allow citizens to:
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Express their opinions, including dissent against government policies.
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Form or participate in associations, such as activist groups or unions.
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Assemble peacefully to demonstrate or picket.
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Arrests aimed at suppressing these rights—such as detaining peaceful protesters without evidence of criminal activity—are unconstitutional and can be challenged in court.
<h4 dir="ltr">4. Right to Fair Trial (Article 50)</h4>
If charged following an arrest, you are entitled to a fair and public hearing before an independent court. Key protections include:
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Presumption of innocence until proven guilty.
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Access to legal representation, including state-funded counsel if substantial injustice would otherwise occur.
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The right to challenge the evidence presented against you.
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<h4 dir="ltr">5. Protection Against Discrimination (Article 27)</h4>
Arrests based on discrimination—such as targeting individuals due to their ethnicity, political beliefs, or social status—violate Article 27, which guarantees equality and freedom from discrimination. This is particularly relevant during protests, where specific groups may be unfairly targeted.
<h3 dir="ltr">Habeas Corpus</h3>
The right to habeas corpus, enshrined in Article 51 of the Constitution, is a critical safeguard for those wrongfully arrested or detained. Habeas corpus, meaning "produce the body" in Latin, is a legal mechanism that allows individuals to challenge the lawfulness of their detention.
<h4 dir="ltr">What Is Habeas Corpus?</h4>
Habeas corpus is a court order directing authorities to produce a detained person before a judge to determine whether their detention is lawful. If the court finds the detention to be unlawful, it can order the immediate release of the detainee.
<h4 dir="ltr">When Can You Apply for Habeas Corpus?</h4>
You can file a habeas corpus application if:
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You are detained without being informed of the reason for your arrest.
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You are held beyond the constitutional time limit (e.g., 24 hours for minor offenses) without being charged or brought to court.
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Your detention violates constitutional protections, such as being arrested for peacefully protesting.
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You are detained incommunicado (i.e., without access to a lawyer or family).
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<h4 dir="ltr">How to File a Habeas Corpus Application</h4>
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Engage a Lawyer: While individuals can file habeas corpus applications, legal representation is advisable to navigate the process effectively. A lawyer can draft and file the application on your behalf.
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File in the High Court: Habeas corpus applications are typically filed in the High Court, which has jurisdiction to hear such matters under Article 165 of the Constitution.
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Provide Details: The application must include:
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The name of the detained person.
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The place of detention (if known).
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The circumstances of the arrest and detention.
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The reasons why the detention is believed to be unlawful.
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Court Hearing: The court will issue a summons requiring the detaining authority (e.g., police or other state agency) to produce the detainee and justify the detention. The court will review the case and decide whether to order the release of the detainee.
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Urgency: Habeas corpus applications are treated with urgency, as they involve fundamental rights to liberty.
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<h4 dir="ltr">Outcomes of a Habeas Corpus Application</h4>
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Release: If the court finds the detention unlawful, the detainee is released immediately.
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Compensation: If the detention violated constitutional rights, the court may award compensation for damages, such as emotional distress or physical harm.
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Further Action: If the detention was malicious or involved misconduct, the detainee may pursue additional legal remedies, such as a civil suit for damages.
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<h3 dir="ltr">Additional Legal Remedies for Wrongful Arrest</h3>
Beyond habeas corpus, individuals wrongfully arrested during protests can seek other remedies:
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Civil Lawsuit for Damages: You can sue for compensation for false imprisonment, assault, or violation of constitutional rights. Courts have awarded damages in cases where police actions were deemed excessive or unlawful.
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Complaints to Oversight Bodies: The Independent Policing Oversight Authority (IPOA) investigates complaints against police misconduct, including wrongful arrests and excessive force.
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Petition for Constitutional Violations: Under Article 22, you can file a petition in the High Court to challenge violations of your Bill of Rights, seeking remedies such as declarations, injunctions, or compensation.
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<h3 dir="ltr">Practical Steps if Wrongfully Arrested</h3>
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Stay Calm and Assert Your Rights: Politely request to know the reason for your arrest and assert your right to remain silent until you consult a lawyer.
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Document the Incident: If possible, note the time, place, and details of the arrest, including the names or badge numbers of the officers involved.
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Contact a Lawyer Immediately: Exercise your right to communicate with an advocate to seek legal assistance.
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Inform Family or Friends: Ensure someone knows your whereabouts to prevent incommunicado detention.
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Seek Medical Attention: If injured during the arrest, request medical care and document any injuries for potential legal action.
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File a Complaint: Report any misconduct to IPOA or seek legal advice to pursue habeas corpus or other remedies.
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<h3 dir="ltr">Challenges During Protests</h3>
Protests in Kenya, such as the 2024 Finance Bill protests, have sometimes led to allegations of excessive police force and mass arrests. The lack of clear identification of officers (e.g., those in plain clothes) and the failure to produce detainees in court within 24 hours have been recurring issues. These challenges underscore the importance of knowing your rights and seeking legal recourse promptly.
<h2 dir="ltr">Conclusion</h2>
The Constitution of Kenya, 2010, provides comprehensive protections for individuals arrested or detained during protests. From the right to personal liberty and fair treatment to the powerful remedy of habeas corpus, these safeguards ensure that no one is unlawfully deprived of their freedom. If you or someone you know is wrongfully arrested, act swiftly to assert your rights, engage legal counsel, and explore remedies such as habeas corpus or civil lawsuits.
For expert advice, contact us today at +254 716 708 104 or info@lawguide.co.ke. Our team is ready to assist you in navigating these legal challenges and ensuring your rights are protected.
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