What courts should do to deter arbitrary arrests and abductions

The government has, on at least three occasions, unwittingly confirmed that it is behind the troubling abductions which have increased at an alarming rate since the Gen Z protests in June this year. The first confirmation was when the Directorate of Criminal Investigations (DCI) publicly apologised on its X account to journalist Macharia Gaitho following his abduction in Karen.

In its apology, DCI stated that it was a case of “mistaken identity”. In other words, “Sorry Mr Macharia Gaitho, we abducted you but we actually intended to abduct Mr Francis Gaitho.” The second occasion involved the Turkish nationals, whose refoulement was preceded by an abduction by masked men. The government later admitted that Kenyan law enforcement and foreign affairs agencies were involved in their refoulement and forced return to Turkey. This action faced strong criticism from human rights organisations, including the UN Refugee Agency (UNHCR). The third was the abduction of Ugandan opposition leader, Dr Kissa Besigye, in Nairobi, with the government first pretending to have been unaware of his presence in the country (even though immigration officers perform a surveillance role), and later admitting that there had been contact between Nairobi and Kampala prior to the incident.

The International Convention for the Protection of All Persons from Enforced Disappearance defines "enforced disappearance" as the arrest, detention, abduction, or any other form of deprivation of liberty carried out by state agents, or by individuals or groups acting with the state's authorisation or support. This is followed by a refusal to acknowledge the deprivation or concealment of the disappeared person's fate or whereabouts, effectively placing the individual outside the protection of the law.  The Preamble of the Inter-American Convention on Forced Disappearance of Persons highlights enforced disappearance as one of the most serious forms of human rights violations which has been described as an “affront to human dignity” and a “grave and abominable offence against the inherent dignity of the human being”.

While not all abductions have led to prosecution, those that do should meet a judiciary willing to stamp its authority, assert its independence, and enforce the Bill of Rights. And they have the tools with which to do so: The doctrine of the fruits of a poisonous tree and the exclusionary rule. The two rules were developed in the United States, with the effect that courts exclude evidence if it was obtained in violation of the Constitution. The purpose of the doctrine of the poisonous fruit is two-fold - to protect individual rights by preventing state overreach and to uphold public confidence in the justice system by ensuring that courts do not sanction unconstitutional practices. By adopting the doctrine, courts seek to prevent the state from benefiting from its own misconduct, ensuring that procedural safeguards are observed throughout the justice process.

The two rules have been instrumental in ensuring that prosecutors do not present before the courts evidence that has been obtained through illegal activities by law enforcement agencies. The rules have played a major part in discouraging police misconduct in the United States.

Article 50(4) of our Constitution embodies this doctrine, by providing that any evidence obtained in violation of the Bill of Rights should be excluded if its admission would compromise a fair trial or the administration of justice. Indeed, Kenyan courts have relied on this principle to dismiss corruption cases where evidence was obtained illegally such as through illegal searches, seizures, or breaches of confidence, viewing such evidence as tainted and unsuitable for use in prosecuting the accused. By doing so, the judiciary reinforces the principle that procedural violations by law enforcement cannot be justified by the pursuit of a conviction. This approach is crucial in safeguarding judicial integrity and ensuring that the state respects procedural requirements when gathering evidence. And that is how some high-profile corrupt individuals have managed to keep both their loot and their liberty.

Regrettably, this exclusionary approach has not yet been broadly applied to cases involving arbitrary arrests and abductions. Security agencies continue to disregard the constitutional protections against arbitrary detention, torture, cruel and inhuman treatment, which are guaranteed to every person, citizens and foreigners alike, under Article 29. The police continue to ignore the rights of an accused person set out under Article 49, especially the right to be informed the reason for the arrest. Given the established judicial stance on excluding illegally obtained evidence, it is logical to extend this doctrine to cases of arbitrary arrest or abduction. Arrests without adherence to constitutional and legal safeguards are fundamentally unjust and undermine the legitimacy of the resulting charges. As such, any accused individual arbitrarily arrested and illegally detained through such unlawful means should be absolutely discharged from prosecution.

The Constitution in Article 20 demands that courts must adopt the interpretation that most favours the enforcement of fundamental rights and freedoms. A purposive interpretation of Articles 29 and 49 in the spirit embodied in Article 20 would leave Kenyan courts with no option but to discharge, unconditionally, any accused person in cases where their arrest or detention violated constitutional requirements. This approach would ensure that the judicial system does not validate unlawful state actions, reinforcing the right to due process and the rule of law. By refusing to legitimise charges originating from unconstitutional arrests, courts would underscore the importance of adherence to procedural justice.

To uphold justice, courts should discharge individuals detained through unlawful arrests, reinforcing the constitutional mandate to protect individual rights against arbitrary state action. The judiciary's commitment to procedural fairness and human rights would be reinforced through this stance, sending a clear message that the rule of law prevails over expediency.