The Nation (Nairobi)
June 13, 2005
Posted to the web June 13, 2005
The rising spate of crime has to be combated by all resources the State has, but forced disclosures to officers should be avoided as the process is prone to abuse. Societal stability, financial growth and investment are pegged on security - both of the nation and the people, writes lawyer EMMANUEL WETANG'ULA
The Statute Law (Miscellaneous Amendments) Bill, 2005, proposes to admit to court confessions to a police officer of the rank of chief inspector or detective.
Confessions made before the police were admissible to court before the law was amended, vide the Criminal Law (Amendment) Act 2003. The amendment was a victory by human rights advocates against confessions extracted out of accused people.
The fear by human rights advocates is that return of this law could reverse the gains made on the rights of accused people. The danger of confessions made before police officers is that they could not have been voluntary.
Involuntary confessions negate the right of accused people to plead freely, leading to miscarriage of justice. Cases abound of people being tortured by the police to plead to crimes they never committed. Memories of Nyayo House torture chambers are still fresh in many Kenyans' minds.
A disarray in criminal prosecution is quite evident, with the many acquittals handed down by the courts owing to insufficient evidence. The burden of proof imposed upon the prosecution - that of beyond reasonable doubt - has almost become insurmountable by the police.
Absence of any form of scientific or forensic investigation has led to many accused people being set free by the legal system. Courts of law, as independent arbiters of societal disputes, do not exist to convict accused people but to determine whether the evidence presented is sufficient to lead to a conviction.
Freedom of liberty is a fundamental right. It is not created by the Constitution, but is recognised by laws of the land. Courts have been emphatic in enunciating a principle that it is better for a thousand guilty people to get away with crime that to convict one innocent person.
Although the proposed amendment raises the cadre of officers before whom confessions can be made, there exists the ever present danger that it does not completely root out torture and other forms of inhuman and degrading treatment meted out on accused people.
A confession can be extracted through force and intimidation by junior officers and recorded before an officer of the specified rank. The fear is not that the police will start persecuting accused people, but that the process is prone to abuse. After all, the force has not changed at all.
Confessions involuntarily obtained can be retracted or repudiated in court, but there exists a mechanism of a trial within a trial in our criminal justice system to determine the admissibility of such statements. Even if the court finally rules against admissibility of the confession, there could already be violation of the accused's rights, for instance, torture.
The mechanism of a trial within a trial is an auxiliary violation of the right of the accused to a speedy trial, as enshrined under section 77 of the Constitution. It lengthens the time within which a matter may be determined, which also prejudices the prosecution's case as memories of witnesses fade with time.
At the moment, police still record statements under inquiry from accused people once they are suspected of having committed a crime. These statements are produced in court by the investigating officer as results of their investigation. Surprisingly, the statements are often denounced by the makers as fabrications. This manifests the danger which people in police custody may be exposed to.
If an accused person is determined to make a confession, it does not matter whether he does so before a senior police officer or a court of law. He may as well repeat the statements made to the police. The police still subject suspects to inquiry and use the recorded statements against them.
It is a matter of public notoriety how unprofessional our police are in conducting investigations. It is not surprising to see them in the media tampering with crime scenes by using their bare hands to hold weapons without dusting them for fingerprints to facilitate further investigations. Killing so-called wanted criminals is deemed a closure of their files, as dead men tell no tales.
Whether the police have the devices to dust finger prints from a crime scene, or any weapon or item used in commission of a crime, is doubtful. It is also not clear if a database exists to enable them to detect and establish whether it is the same criminal running rings around them. With such a sorry state, the panacea seems to be the misconception of confessions.
Re-enactment of the law on confessions will not improve the pathetic state of criminal prosecution in Kenya. The police force, as the investigatory mechanism, should be properly funded and equipped.
This will work better in aiding detection and prevention of crime than temporary solutions.
Under the current judicial dispensation, courts have condemned the shoddy investigations conducted by the police and have censured them accordingly. For some time now, acquittal of an accused person has been an expectation, which perhaps explains the need by the Attorney General to seal the loophole.
The rising spate of crime in Kenya has to be combated by all resources the State has. Societal stability, financial growth and investments are pegged on security. But more realistic solutions are needed.
The draconian legislations and desperate measures the State has resorted to will imperil society further. For instance, the shoot-to-kill orders by the Security Minister were heeded in Gatundu last week. The killing sparked riots against the police, which led to further loss of human life and property.
The move by the Attorney General's office is ill-advised. It reverses the gains made in the struggle against unjust laws.