TABLE OF CONTENTS

Foreword: Part One: Bribery & The Law Part Two: A Snapshot Of Trafc Laws & Related Offences Part Three: Police Arrest Part Four: The Courts Part Four : Tables Common Offences Where Bribes are Solicited & How to Avoid Them Table 1.1 Relating to Regular Police Ofcers & Local Authorities Table 1.2 Relating to Trafc Police Ofcers Organisations of Interest ii 1 2 14 21

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FOREWORD
Transparency International-Kenya believes that information is the most powerful tool that citizens can use to ght corruption and access public services and entitlements. Anti-corruption campaigns, human rights movements and civic education all aspire to promote civic vigilance, action and engagement while highlighting the respective roles and responsibilities of all stakeholders which include citizens, the government and media. Certain international legal instruments especially the United Nations Convention Against Corruption (UNCAC), article 13, and the African Union (AU) Convention Against Corruption, article ve, recognise the participation of citizens as central to the establishment and maintenance of effective anti-corruption strategies. Corrupt practices ourish where there is mutuality of interest, ignorance and obscurity. When citizens operate in the dark, corrupt ofcials can and do act with impunity. Information is therefore a bulwark against corruption. The reports in the Elimika series are intended as a practical tool for enhancing public awareness of laws, rules and regulations that govern citizens every day lives, and form part of TI-Kenyas ongoing campaign to promote public participation in good governance. People who are aware of their rights are more likely to hold governments accountable, and are less likely to be victims of extortion and bribe-giving. This publication on trafc laws & offences, police arrests and the courts is the rst in the series and is part of TI-Kenyas support for citizen participation in accountable governance. The publication of Elimika series has been made possible by the generous support of the citizens of Netherlands and Norway.

Transparency International-Kenya December, 2008

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PART ONE: BRIBERY AND THE LAW

What is bribery?
Bribery is the practice of offering something [usually money] in order to gain an illicit advantage. A person is considered to be engaging in bribery when he/she: (a) Corruptly or dishonestly receives or asks for, or corruptly agrees to receive or solicit a benet. In this case, a benet means any gift, loan, fee, reward, appointment, service, favour, promise or other advantage. (b) Corruptly gives or offers, or corruptly agrees to give or offer a benet.

Penalties
A person convicted of an offence of bribery is liable to: A ne of not more than one million shillings, or to imprisonment for a term not longer than ten years, or to both; and An additional mandatory ne if, as a result of corruption, it is proved the person received a benet or any other person suffered a loss. The mandatory ne shall be equal to two times the amount of the benet or loss. The law also provides for conscation and/or forfeiture of assets of which the owner is reasonably believed to have acquired corruptly or one cannot believably explain the source. Remember: Police ofcers are not above the law. Thus any person who has complaints against any police ofcer can report the matter to the Ofcer Commanding Station [O.C.S]. If one has been asked for a bribe by a police ofcer, he/she may report the matter to the Kenya Anti-Corruption Commission (KACC) or to the Criminal Investigations Department. Members of the public may also highlight issues of corruption through the newspapers, television or F.M. radio stations. The media will usually publish stories where there is enougn evidence to avoid exposure to law suits for defamation.

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PART TWO: A SNAPSHOT OF TRAFFIC LAWS AND RELATED OFFENCES

The Trafc Act What is the Trafc Act?
This is the law that brings together all regulations relating to trafc on the road. It governs the whole range of road users from cyclists, drivers, passengers, and pedestrians to motor vehicles and their conduct on Kenyan roads. It also regulates registration and licensing of motor vehicles, licensing of drivers, accidents, driving and general rules and provides the penalties for breaking this law. The police have the duty of enforcing the Act. All road users in Kenyan have a duty to familiarize themselves with the provisions of the Act. The powers of the police to enforce the Trafc Act have unfortunately been grossly abused. The Trafc Police subject motorists to all manner of indignity from impounding cars and car keys to impounding driving licenses and only relent after being bribed or as it is said in Kiswahili wakipewa kitu kidogo.

Police powers while enforcing the Trafc Act Can a police ofcer enter your vehicle?
The Police Act, Section 105 gives any police ofcer in uniform and any licensing ofcer or inspector the powers to stop any vehicle and: To enter any vehicle; To drive any vehicle or cause any vehicle to be driven; Upon reasonable suspicion of any offence under this Act, to order and require the owner of any vehicle to bring the vehicle to him for the purpose of carrying out any examination and test of the vehicle with a view to ascertaining whether the provisions of this Act are being complied with or with a view to ascertaining whether the vehicle is being used in contravention of this Act. If a person does not obey any of the above, they have committed an offence and are liable to a ne not exceeding Kshs. 10001.

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The Police Act of the Laws of Kenya, Section 105 (2)

This is easily the most abused of the trafc laws. It gives the police powers to enter, commandeer or impound vehicles at any time while claiming that they are enforcing the Act. A police ofcer will always nd fault with a vehicle, sometimes taking advantage of ignorance of the law on the part of a motorist. The police have power to remove the motor vehicle identication plates and the vehicle license where they are satised that it is not roadworthy. The Trafc Act does not give police ofcers the powers to enter any vehicle other than for the purpose of inspection or examination. The practice of police entering vehicles and asking the drivers to jitetee (bribe them) as they drive around town should be discouraged. A person faced with such a request should refuse to let an ofcer enter his motor vehicle unless the ofcer wants to examine it. In addition, such a person can go straight to the nearest police station and le a complaint.

In Practice
Trafc Police Ofcers will sometimes enter a vehicle and order the owner/driver to take them into a police station for offences against the Highway Code. When they do so, they threaten to impound the vehicle (especially PSVs) unless the driver cooperates. Many motorists believe that they will avoid wasting time at the police station and in the courts by bribing the ofcers for their freedom. This is wrong and should also be discouraged. It is better and cheaper, especially for the PSVs, to ensure your vehicle is fault free instead of bribing policemen. Motorists should be aware that arrest is not the end of the story. A police ofcer must prove that an offence has been committed in a court of law. In major Kenyan towns, especially Nairobi, there is a renewed zeal in the enforcement of the use of zebra crossings. As a result many motorists have fallen 3 Know your Rights !

prey to unscrupulous City Council Askaris (police) who enter their vehicles and solicit bribes if the drivers have failed to slow down at zebra crossings. If one commits an offence under the Trafc Act, police are required to issue the motorist with a charge sheet [or other documents such as summons] indicating the offence committed, the time and date to attend court and let him/her proceed with their journey. The driver may be required to deposit some money with the police as security for his attendance in Court. This is known as police bail. NOTE:Members of the public must insist on being supplied with a receipt for the police bail. This is because the funds are refundable once one is presented to the Court. The ofcer in charge of a particular road block will usually be the one to decide how much money should be paid as bail. It should ordinarily be a nominal amount of between Kshs. 2,000 to Kshs. 10,000. Police bail can be given in respect of all trafc offences, but the police may however be reluctant to issue bail in a case whereby a person has died as a result of a road accident.

What happens when a police ofcer illegally enters your vehicle?

According to the Trafc Act, any person who, without reasonable excuse, enters and/ or manipulates (orders one to drive) a vehicle without permission from the owner or the person in charge of the vehicle can be sentenced to prison for 9 months or less, or pay a ne of Kshs 3,000 or both. This applies to both civilians and police ofcers2.

When can a vehicle be impounded?

A vehicle can be impounded by a police ofcer and taken to a place of safe custody when: It is used against any of the trafc rules, Abandoned, Left on the road in a position likely to cause danger to other road users and the owner cannot be found, or if it is parked in a place where parking is prohibited.

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The Trafc Act of the Laws of Kenya, Section 64 & 65

Other Common Trafc Laws and Offences

No vehicle should be used or driven unless it is tted with seat belts for each sitting position. If one is found guilty of doing so, they will be charged a ne of Kshs. 1,000 for each seat that does not have a belt. The law also prohibits members of the public from using any vehicle that is not properly tted with seat belts. A person who does not wear a seat belt faces a ne of Kshs. 500. It is an offence a person to use a mobile phone or any other communication equipment while driving. Bicycles, motor cycles and other should be tted with reectors to warn other motorists of their presence on the road.

Fines under the Act

Some specic penalties are spelt out for specic crimes against the Trafc Act, but where no penalty is provided for, including in relation to some of the matters listed above, one may be sentenced to: A ne of not more than Kshs 2,000 or Imprisonment for not longer than 3 months for a rst time offence and A ne of not more than 5,000 or imprisonment of not longer than 6 months (or both) for any subsequent offences. An impounded vehicle can be detained at a police station or other safe place until inquiries into a case have been completed.

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NOTE: Impounding and towing charges as well as any damages that arise from the process are to be paid by the owner of the vehicle.

The Highway Code What is the Highway Code?

The Highway Code is a document prepared by the Minister for Transport which contains guidelines for people using Kenyan roads. It may be revised by revoking, varying, amending or adding to the provisions at any time. NOTE: It is NOT a criminal offence not to observe the Highway Code, but failure to observe it may be used in other court proceedings to nd fault in an accused person3.

In Practice
Sometimes motorists are arrested and spend days with other suspects in police cells for failing to obey the Highway Code, and in there they are asked to pay bribes in terms of rent. This is unlawful conduct on the part of trafc police ofcerscitizen who is confronted with this issue must report to the OCS, or to the Court when he is rst presented there. It is important for the citizen to resist attempts by corrupt ofcers to collect bribes from him/her.

Can someone be arrested for obstructing trafc?

Obstruction of trafc is something for which a large number of motorists especially Public Service Vehicles are charged. The Trafc Act stipulates that the police should regulate all trafc, keep order and prevent obstruction in all roads and trafc places4. Anybody who disobeys any order given by a police ofcer may be arrested unless they give their name and address and can prove that they will be available if summoned to a court5. From the above, one can see that there is another option other than arrest. Motorists should request for a charge sheet after being identied and accepting to answer any summon to court. This request should be repeated to the O.C.S. if a police ofcer does not heed it.

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5

Ibid, Section 68(3) Ibid, Section 69 (a) The Police Act of the Laws of Kenya, Section 16 (2)
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In Practice
Some police ofcers will immediately arrest motorists and/or tow vehicles they suspect of obstruction without giving any other option. This provides an opportunity for bribes to be given so that the motorist can avoid arrest. Police are also known to collude with owners of tow trucks, so that they collect bribes from them, and will usually insist on towing even when it is not necessary.

Driving under the inuence of Alcohol and Drugs

It is illegal to drive or to attempt to drive while under the inuence of alcohol or drugs to the extent of being incapable to have proper control of the vehicle. A person convicted of this offence is liable to a ne not exceeding Kshs. 10,000 or to imprisonment for a term not exceeding 18 months or to both. The Court will also disqualify a person who is convicted of this offence from holding or obtaining a licence for a period of two months. If a PSV driver is convicted, he/she is liable to a ne not exceeding Kshs. 15,000 or to imprisonment for a term not exceeding two years or to both. At the time of preparing this booklet, the Government had not yet legalised laws to put into effect a breathalyser test commonly known as alcoblow. The alcoblow is a gadget that a motorist blows his breath into and it indicates whether he or she has passed the legal limit for alcohol.

Accidents What should one do when involved in an accident?

When involved in an accident, one should: Stop Immediately alert the police or do so within 24 hours Report the accident to the insurance company/agent/broker Take the details of the other vehicle involved in the accident which include its registration number, the insurance company and the insurance certicate number.

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 Get the details of the owner and/or driver of the vehicle. These include the name, address, telephone number and driving license number. Give their name, address, telephone number, driving license number, registration and insurance details of their car. When police ofcers arrive at the scene of the accident, they inspect it, ask questions and take down the details of the accident, including a sketch plan showing the point of impact. Some or all of this information will appear in a police abstract report. NOTE: A trafc police ofcers opinion on the cause of an accident and the extent of damage to a vehicle is important in any case involving trafc accidents. Sometimes, motorists involved in vehicle accidents offer bribes to police ofcers so that evidence in a court case can favour them. To avoid this, those involved in accidents can take action such as photographs showing the point of impact, and any damage to the vehicles, which can be used in Court as evidence. Motorists can also take the details of any eye witnesses who can be called to Court to testify on their behalf.

The Driving License

The Trafc Act states that no person should drive any motor vehicle unless he or she has a valid driving licence or a provisional licence. Further, a person who is in charge of any motor vehicle should not allow an unqualied person to drive it on any road. A person is entitled to hold only one driving licence, which may however be endorsed to allow him to drive different classes of motor vehicles for which he is qualied. A driving licence may be renewed annually or every three years. A driving licence must not be defaced or mutilated. If defaced or mutilated a replacement must be sought. The licence should have the signature of the holder. A person who does not follow these rules is liable to a ne of not more than two thousand shillings, or to imprisonment for a term not exceeding three months. For subsequent convictions, one is subject to a ne not exceeding ve thousand shillings, or to imprisonment for a term not exceeding six months or to both. Know your Rights ! 8

 A provisional licence is one given to a person who wishes to learn to drive vehicles of a particular class. Any person driving a vehicle should carry his or her driving license or provisional license and should produce it when requested by a police ofcer. Failure to do so would attract a ne which is not more than Ksh. 100.

Can the police suspend or cancel a driving license?

It is a standard practice and lawful for a police ofcer to demand a driving license from a motorist. This is to check whether it has expired or has been endorsed by a court of law. The police have no powers to suspend or cancel a driving license. They are supposed to surrender it to the courts. The courts have the power to: Suspend driving licenses, Cancel licenses, Declare a person unt to obtain a new licence for a specied period of time. It is to be noted that upon application by a police ofcer above the rank of Superintendent, the Registrar of Motor Vehicles is also empowered to revoke the driving licence of any person who appears to be suffering from a disease or disability that is likely to pose a danger to the public when driving.

In Practice
Some police ofcers accuse motorists of trafc offences and impound their licenses. Since one cannot drive without a licence, and the burden of proving that a motorist has committed a trafc offence lies on the police, some people tend to bribe police ofcers so as to get their licences back. This practice is also illegal. So what should one do when the police take your licence? If the police impound your licence and ask you for a bribe you can report to the nearest police station or to KACC.

The Public Service Vehicles (PSV) Sector

The PSV sector is a hotspot for bribery activities. From obtaining PSV licences, certicates of good conduct, to plying a certain route, vehicle owners, drivers and conductors often pay bribes to ensure a smooth ow of operations. Once this is done, PSVs will usually break trafc rules while police ofcers look the other way. 9 Know your Rights !

A new phenomenon is where many public service vehicles are owned by police ofcers. Most if not all such vehicles are not subjected to a rigorous application of the Trafc Act. This is a form of corruption.

What types of inspection are vehicles supposed to go through:

A motor vehicle may be examined or inspected for a number of reasons, including valuation and to gauge it mechanical condition. The law requires public service motor vehicles be inspected annually and to bear a sticker to that effect. Initial Inspection This is the inspection which a new motor vehicle must undergo just before it begins operations. Periodic Inspection This is an inspection which a motor vehicle must undergo when it is to be operated frequently. It is carried out after its inspection certicate has expired. Modication Inspection This is the inspection which a motor vehicle must undergo when there are changes in the length, height, width, maximum payload and other major specications such as engine change. Inspection of vehicles involved in trafc accidents It is the mandatory inspection which a motor vehicle must undergo when it is damaged in a trafc accident, especially an accident in which third parties are injured, or there is substantial damage to another vehicle. On roads random inspection - This is a supercial inspection which a motor vehicle undergoes when it is stopped at random by trafc police ofcers on the road. Environmental Tests (Exhaust Emission Tests) Visual Inspection (for all vehicles) The exhaust fumes are inspected so as to ensure that a vehicle does not emit dense blue or clearly visible black smoke. Standard Emission Test This is a scientic test that looks at the concentration of carbon monoxide and hydrocarbons that are emitted by vehicles. Environmental tests are rarely carried out, which could partly be due to the ignorance of police Know your Rights ! 10

ofcers and lack of scientic equipment, but may also indicate the extent of possible opportunities for bribery.

Roadworthiness Inspection What is roadworthiness inspection?

This is an inspection that looks at the safety of a car and should not be confused with the servicing of a car. When a vehicle is inspected for road worthiness, it is checked to ensure that it is safe for use on the road. It also ensures that worn out parts are replaced or repaired early. It is the owner of a vehicle, whether an individual or a company, that must ensure that this inspection is carried out.

In Practice
Motorists are often tempted to bribe police ofcers with huge amounts because the ofcers have the power to declare vehicles un-roadworthy and take motorists to court where they would face hefty nes for driving such vehicles. This is wrong. An un-roadworthy vehicle poses great danger both to its owner and other road users.

PSV Regulations What PSV regulations apply to vehicles?

According to Section 95(1) of the Trafc Act, no one can drive or be in charge of any PSV on a road unless it is licensed by the Transport Licensing Board (TLB). The penalty for doing so is a ne not exceeding Kshs 5,000 or imprisonment for a period not longer than 6 months if found guilty for a rst time or both. On second or subsequent conviction, the offender is liable to pay a ne of Kshs. 10,000 or to imprisonment for a period not exceeding one year or to both. To avoid such penalties, PSV owners and drivers may bribe police ofcers and continue their operations. The certicate that allows one to be issued with a license is given by a police ofcer of or above the rank of Assistant Superintendent who certies that the applicant is a t and proper person to hold such a license. To avoid these procedures, both the applicant and the ofcer may collude to have some money change hands.

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What PSV regulations apply to the crew (drivers and conductors)?

One cannot drive or act as the conductor of a PSV unless he/she is licensed. (In the event that one has forgotten his / her license, arrest is swift unless a bribe is offered.) A person licensed as a driver or conductor of a public service vehicle is required to wear the prescribed badge at all times. In the event that any of the PSV crew members loses their license or badge, he/ she is required to apply for a duplicate. A driver of a PSV is also required to obtain a certicate of good conduct from the Criminal Investigations Department. Many people bribe these ofcers in order to fast track the acquisition of these certicates. The law provides for many regulations to be followed by passengers of PSVs. Among others, passengers must not: a. Use obscene language or behave in a disorderly fashion, b. Fraudulently use a defaced or altered ticket to travel c. Enter or alight from any other part of the vehicle apart from the door, d. Impede other passengers who wish to embark or alight, e. Travel on the carrier or roof of a vehicle, f. Damage, soil or deface any part of the vehicle, g. Engage in advertising, hawking, smoking, throwing litter out through the windows, h. Enter a PSV while intoxicated, or refuse to leave while intoxicated and having been asked to leave.A passenger who contravenes these regulations shall be guilty of an offence and liable to a ne not exceeding Kshs. 1,000, or in default of payment, to imprisonment for a term not exceeding three months. The Registrar of Motor Vehicles has the power to determine the maximum number of passengers, whether sitting or standing, and the weight of luggage or goods allowed to be carried in any public service vehicle. The penalty for overloading PSVs is a ne not exceeding Kshs 20,000 which is to be paid by the owner. Note that the excess passengers can be charged in Court, and if found guilty will pay a ne not exceeding Kshs. 600, or imprisoned for not more than two months. (Because the nes are heavy, PSV crews are quick to offer bribes when suspected of overloading.)

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Every motor omnibus or matatu must carry an efcient re extinguisher, which must be maintained in good condition, and shall be carried in such a position as to be readily available for use at any time. Those operating outside the limits of a municipality must also carry a rst aid kit sufcient to deal with any reasonable emergency. Such a kit must be kept in a rst class condition, and shall be available for inspection at any time by a medical ofcer, an inspector of motor vehicles or any police ofcer.

Which PSV regulations apply to termini (bus stops)?

All public service vehicles should only stop to drop and pick up passengers at designated bus stops and nowhere else on the road6. No public service vehicles, their conductors and/or drivers should make any noise or sound any instrument that can annoy or inconvenience the public so as to attract passengers (e.g. blaring horns and loud music) [This illegal practice is referred to as touting]. The penalty for this is between Kshs 2,000 and 5,000 and the instrument used (e.g. the music system) may be conscated.

In Practice
Often, PSVs drop and pick up passengers at any point on the road hence they disobey the law. They also play loud music and have loud horns that sometimes annoy the public while trafc police ofcers sometimes do not do anything about it because they have been bribed to look the other way. Members of the public are also to blame as they insist on alighting from vehicles or being picked at places other than the designated bus stops.

Other Regulations relating to taxicabs and matatus

Every taxi and matatu shall have a painted continuous yellow band which has a width of 150 millimetres (15 cm) on both sides and on the rear. The band should be clearly visible from a distance of not less than 275 metres

The Trafc Act of the Laws of Kenya, Section 102 (4)

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PART THREE: POLICE ARREST When can the police arrest someone?
Among other reasons, a Police ofcer can arrest a person who: Is suspected of committing, or actually commits a serious offence in their presence; these kind of offences being popularly known as cognizable offences, Is found in a public place at night [e.g. highway] and is suspected of having committed or is about to commit a felony [serious offence] Obstructs them from properly carrying out their duties Tries to escape from lawful custody, Is suspected of having deserted from the Armed Forces, Has a warrant of arrest issued against him/her. However, all arrests must be carried out in line with the law that states, no person shall be deprived of his personal liberty save as may be authorized by law 7. Arrests are also authorized if a suspect is: Convicted of a criminal offence in a court of law; Charged with contempt of court; Required to full a legal duty by a court; Ordered to appear in front of a court; Suspected of having committed, or is about to commit, a criminal offence; About to spread an infectious or contagious disease; Under special circumstances, a person who has not attained the age of 18 years may be arrested for the purpose of his education or well-being;

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7 The Constitution of Kenya , Section 72, Protection of Right to Personal Liberty

Can anyone else, apart from the police, arrest people? Powers of arrest vested in other ofcials, private persons and magistrates:
In some cases, private persons and magistrates are empowered to carry out arrests. A citizen may arrest any person who commits an offence, or who is reasonably suspected of having committed one. Such a person must be handed over to the police as quickly as possible after the arrest. For instance if one is caught breaking into anothers house, [burglary] he should be arrested immediately since he has been caught in the act. It is unnecessary in such cases to wait for a warrant. Magistrates are also empowered to arrest any person who may commit an offence in their presence and within the magistrates district of work [referred to as jurisdiction] two examples stand out. It is illegal to lie under oath [perjury]. Once a magistrate discovers that a witness has stated a lie under oath, he may order for the immediate arrest of that witness. A magistrate may also order the immediate arrest of a person who is disrespectful to the Court [commonly referred to as contempt of Court]. Such people will ordinarily be tried by magistrates other than the arresting ones. The arresting magistrate will attend the trial as a witness. Other persons with some powers of arrest include askaris employed by local authorities [for infringement of local authority by-laws]. City Council askaris use these provisions to arrest persons who are for instance littering and smoking in the streets. Chiefs, prisons ofcers [who may arrest any person trying to escape from custody, or who commits an offence while in prison custody and The armed forces [who may arrest any deserter or mutineer.]

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What are people NOT supposed to be arrested for?

In Kenya, innocent civilians are arrested for imsy reasons such as: Loitering, Failure/forgetting to carry identication documents such as the National Identity Card Idling These are NOT offences under the law. However, police are entitled to arrest idle and disorderly persons. These powers are given by section 182 of the Penal Code. Idle and disorderly persons are dened to include: a every common prostitute behaving in a disorderly or indecent manner in any public place, b every person causing, procuring or encouraging any person to beg or gather alms

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c every person who publicly conducts himself in a manner likely to cause a breach of the peace, d every person who without lawful excuse publicly does any indecent act and e every person who in any public place solicits for immoral purposes.

When one is arrested for ANY reason, their name, address and the charge which they are to be arrested for are written in the Occurrence Book (OB) at the police station and he/she has the right to see the book and ensure that the records are correct 8. If someone is denied this right, they can raise the matter with the Ofcer -In - Charge of the police station (Ofcer Commanding Station [O.C.S]) or inform the magistrate when they rst appear in court.

In Practice:
Sometimes, police ofcers take advantage of the fact that citizens do not know their rights. They may arrest people and write false charges in the Occurrence Book or fail to write any charges at all. It therefore becomes easy to take bribes from scared victims who do not want to be taken into custody.

The Police Act of Kenya, Section 18 (1)

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What should happen during someones arrest? When police ofcers arrest anyone, they are supposed to:
a Identify themselves Police ofcers are supposed to identify themselves by producing their IDs and showing their police force numbers. A person may also ask for the police ofcers name, address, rank and police station where they are assigned9 . b Give a reason for the arrest One should be informed of the reason for their arrest. Their name, address and the stated reason for arrest should then be recorded in the Occurrence Book. If these procedures are not followed, one may lodge a complaint with the O.C.S of the police station.

What happens after someone is arrested? When someone is arrested, the law requires:
That the arrested person is presented to a court of law within 24 hours of arrest If he/she is suspected to have committed or was about to commit a crime punishable by death [known as a capital offences], they can be held in remand for two weeks but must be produced in court within 14 days. NOTE HOWEVER THAT ONE SHOULD NOT BE DETAINED LONGER THAN THIS PERIOD. This is clearly explained in the Constitution10 . In case one is held for longer than the prescribed period, such a person must raise a complaint with the magistrate (for non-capital offences) on the day that he is taken to Court to take a plea. The magistrate or judge will then be required to make a decision on whether the fundamental rights of the suspect have been infringed due to the illegal detention. The judge or magistrate may then discharge the accused. Capital offences include murder, robbery with violence and treason. Those who are charged with capital offences will go through their trials whilst in custody. It is also common for many accused persons to stay in prison due to inability to raise cash bail and/or bond. NOTE: If investigations are to be carried out over a long period, then one should be released on bail or bond. Know your Rights ! 18
9 Ibid , Section 20 (1) (i) The Constitution of Kenya, Section 72 (2), Protection of Right to Personal Liberty

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Bail and Bond What is bail?

A cash bail is a nancial payment by or on behalf of a suspect, either at a police station or deposited in a court. The payment is made as a commitment that the suspect will appear in court for the hearing of the case against them. What is a bond? Unlike bail, a bond does not involve payment of cash. One is required to deposit in court evidence of ownership of some asset worth a specied amount which would be forfeited (surrendered) if the suspect does not appear in court. A certicate of ofcial search will be required to prove ownership, and an independent and credible valuation report to prove how much the asset is worth. A bond commitment is sometimes backed up with a similar commitment by another person in the form of a surety. ANYONE WHO HAS BEEN ARRESTED HAS A RIGHT TO GO FREE ON BAIL AND WAIT TO APPEAR IN COURT UNLESS HE/SHE IS BEING INVESTIGATED FOR A CAPITAL OFFENCE. When bail is granted by the police, one should ensure that the full amount of the same is refunded when they rst appear in court. The suspect should inform the magistrate that he had paid some police bail. The magistrate will direct that the funds are returned to the owner. In many cases, police return these funds automatically once the suspect has taken a plea.

In Practice:
Unfortunately, police ofcers rarely give cash bail even when the offence is minor. In fact, bribes may be extorted from people so that bail is not given or suspects can be freed without going to court.

Can a suspect contact other people or be visited when he/she has been arrested?
When in police custody, a suspect has a right to: A telephone call to contact friends, relatives or lawyer from the police station free of charge. This may rarely happen in practice, since many police stations 19 Know your Rights !

do not have functional telephone lines. This creates an opportunity for bribery, where the accused are compelled to buy airtime for police ofcers cell phones in order to facilitate communication with relatives. Receive visitors at the police station between 6.00 am and 6.00 pm, Medical care, and when necessary, access to a personal doctor. NOTE: Police ofcers sometimes nd opportunities to ask for bribes by treating these rights as privileges which are available to those who pay for them.

Can a police ofcer be charged for any offence?

Any police ofcer who commits an offence or fails to carry out his duty as a police ofcer11 can be disciplined or prosecuted. A person whose rights have been violated by the police can report the matter to the O.C.S. or sue the Commissioner of Police. A notice before the case is led must be served upon the Attorney General, who is the Principal Legal Advisor of the Government.

TIME IS OF ESSENCE; IF THE CASE IS NOT FILED WITHIN A YEAR, THE SAME WILL BE TIME BARRED.
However, due to the ignorance of citizens, slow court procedures and the fact that complaints against the police are investigated by fellow police ofcers (which may lead to cover-ups) people often choose to bribe their way out of trouble rather than follow the laid down legal procedure. The government has recently created an ofce of the ombudsman where complaints may be directed. It may be necessary for the law to be amended to create an institution that can check on the police force, or which can deal solely with complaints against police ofcers.

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The Police Act of the Laws of Kenya, Section 62

PART FOUR: THE COURTS

The Judiciary is the arm of government that interprets, promotes, protects and upholds the rule of law in Kenya. All courts should be independent, ensure quick decisions and enforce the principles of fair trial. A fair trial must have the following: A suspects rights as enshrined in the constitution ( Protection of Fundamental Rights and Freedoms of the Individual) must be protected and guaranteed, A suspect has a right to have legal representation (a lawyer of ones choice, paid for by himself. However note that, the Kenyan Constitution does not require the Government to appoint lawyers to represent those who cannot afford to pay for legal services. In murder trials, there is a practice, which is well entrenched in Kenya, whereby the Court will appoint lawyers to defend the accused person. This is popularly known as pro bono [free] defence and is paid for by the Government). An accused person is allowed to call witnesses to give evidence in their favour, and such witnesses if available must be allowed to testify. Hearings should be held in open court [public] unless there is a clear danger to witnesses and/or the complainant (e.g. the complainant is a minor or a victim of rape).

What are Court Procedures?

The Law assumes that everyone is equal, and justice must be given to all without fear or favour. Everyone is presumed to be innocent until proven guilty. It is the duty of the Courts to ensure that: With a few exceptions, the burden of proving that someone is guilty lies with the prosecution, The rights of a suspect are upheld. These rights include the ones mentioned above. Other important rights include provisions that: 21 Know your Rights !

An accused person cannot be charged twice for the same offence [known as the rule against double jeopardy] An accused person is protected against self incrimination [it is the responsibility of his accusers to prove his guilt]. The court must also be one that is not biased in favour of any side in the case.

Measures that ensure a fair, speedy and just trial is carried out are present. The Court must therefore reject unnecessary adjournments and do all that is necessary to secure the quick attendance of witnesses. The processes that are followed in a criminal case are: Plea taking Application for bail Hearing of the case Ruling Judgement and sentencing

a. Plea Taking
Plea taking is the stage at which the court receives and records the accused persons response to the charges made against him/her. At the suspects rst appearance in court, the charges against him/her are read and they should be read in a language that the accused understands well [including his mother tongue if he so desires] or that has been interpreted. The magistrate must inquire from the accused and record whether he actually understands the language being used. THESE CHARGES MUST BE THE SAME AS THE REASONS ONE IS GIVEN AT THE TIME OF ARREST. Often, a person can be informed of a minor offence and then charged with a serious offence, opening room for the prosecution and the police to solicit bribes. NOTE: When one understands the charges facing him, and of their own volition pleads guilty, they cannot appeal. A plea of guilty removes the presumption of innocence as far the person pleading is concerned. Know your Rights ! 22

Confessions made at a police station cannot be used as evidence in court unless they have been made when a magistrate is present12. This is a legal requirement that must be followed. However, sometimes police ofcers are bribed to harass and intimidate others into making confessions on false charges.

Application for bail

In the event one pleads not guilty to a charge or refuses to plead at all, a not guilty plea is recorded and a hearing date of the case is set. Once a date is set, a suspect can be released pending determination of the case in two ways: Cash bail, Bond with or without surety. Bail is the conditional release of an accused person by the courts until the hearing and solving of the case. THIS IS A CONSTITUTIONAL RIGHT, EXCEPT FOR INSTANCES OF CAPITAL OFFENCES, that is to say, MURDER, ROBBERY WITH VIOLENCE, ATTEMPTED ROBBERY AND TREASON. With a cash bail, the accused deposits some money with the courts which is to be given back at the end of the trial. NOTE: Bail is not an absolute right, and therefore the magistrate can opt to grant, refuse, withdraw or vary it depending on the circumstances of the case and the likelihood of whether or not the accused person will present himself for his trial

In Practice:
Sometimes, the magistrate, in collusion with the prosecutor and clerk can x high bail terms or deny bail altogether so that the accused can bribe in exchange for a change in the bail terms. To overcome this, one has the right and can make an application to the High Court for variation of the bail terms without succumbing to further illegal activity such as bribing the court ofcers. A person facing criminal proceedings has a right to be provided with copies of the statements of his accusers and copies of exhibits in advance. This is to help him in preparing for the trial. This has in practice given police a new avenue to ask for bribes so that they can look for the le, photocopy documents etc. If an accused person faces any trouble obtaining statements, he should complain to the magistrate
12

The Evidence Act of the Laws of Kenya, Section 25A (amendment )

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who is hearing his case. The statements can then be supplied under the supervision of the magistrate. The accused person will only be required to pay photocopying charges.

Hearing of the case

During the hearing, the prosecution usually police ofcers (the Prosecutors) or lawyers employed by the state (the State Counsel) produces evidence against the accused person. Witnesses must be present to testify, and the accused person or his advocate have a right to ask them questions [cross-examination].The prosecution can also, for good reason, withdraw a case at any given moment. The Attorney General is empowered to enter a writ known as a nolle prosequi which has the effect of terminating a criminal case at any point.

In Practice:
The prosecution sometimes withdraws cases when they are bribed. They may also compromise cases by failing to do proper follow up of the same. This is simply done by not pursuing the case any further or not calling witnesses, among others.

Ruling
At the end of the prosecutions case, the magistrate has to determine whether the accused has a case to answer or not. There is a case to answer if the evidence is strong or shows the probability that an offence was committed. In the event there is no case to answer, the accused is released. Once a suspect is found to have a case to answer, they are usually put on their defence. Many suspects misinterpret this to mean that they will be convicted. BUT IT SHOULD BE KNOWN THAT A CASE TO ANSWER MEANS THERE IS EVIDENCE TO KEEP THE CASE GOING BUT THE SUSPECT HAS NOT YET BEEN FOUND GUILTY. It is out of fear that at this point that suspects are approached and terms of bribery set. These are intimidation tactics and the accused should not submit as they are still innocent until proven guilty!

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Judgment & Sentencing

This is the nal step in the court process. It is based on the law as well as the evidence given in court. The magistrate then decides (makes a verdict) depending on the weight of the evidence given in court and also gives a sentence. In relation to many offences, magistrates have a wide discretion to decide the kind of sentence to impose. They can choose from among others: a. b. c. d. e. f. g. h. Death by hanging [a mandatory sentence for capital offences] Imprisonment, Fine, Unconditional discharge, Conditional discharge, Suspended sentence, Probation, Community service.

Many Kenyans do not know that before sentence is pronounced, they have a right to mitigate [commonly referred to as malilio], which is their opportunity to show remorse and plead for leniency. Many convicts thus ignore this opportunity, and magistrates will assume that the refusal to mitigate is due to arrogance or lack of remorse. This is a major opportunity for bribery because with the right amount of money, justice is usually bought in the court corridors. However, it is important to note that the law offers one the right to appeal to a higher court within 14 days. If they do so, one can be released on bail pending the determination of the appeal.

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THE FOLLOWING TABLE CAPTURES SOME COMMON OFFENSES WHERE BRIBES ARE SOLICITED AND HOW TO AVOID PAYING THE BRIBE. RELATING TO REGULAR POLICE OFFICERS & LOCAL AUTHORITIES BY-LAWS SITUATION
Idle and Disorderly conduct

HOW TO RESPOND
Ascertain that your correct names and alleged offence have been correctly entered in the OB before you are locked up in the police cells. This will prevent ofcers from substituting a lesser for a more serious offence and thereafter soliciting for a bribe. It is not an offence not to carry ID documents all the time. Stand your ground and request to be explained to, under what law they intend to charge you. If they arrest you nonetheless, ascertain correct entry of the offence in the OB as above

LIKELY PENALTY
Imprisonment for one month or a ne of Kshs 100 or both. Imprisonment for One year for each repeated offence.

Not carrying Identication Documents

Not Applicable

Search without Search Warrant Arrest without arrest warrant

Request that the ofcers show their identication i.e. Force Numbers/certicates and disclose the purpose of their search. Request the ofcers to rst identify themselves and disclose the reasons for arresting you. At the Police station, request to ensure that the reason for your arrest has been correctly entered in the OB.13

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13 Suspects may apply, to the Ofcer Commanding Station (OCS), for a bail bond to secure freedom pending arraignment to Court. This is a free service and no fee is chargeable on it. All persons arrested without an arrest warrant are to be arraigned to court without undue delay; within 24 hours if held for minor offences and 14 days if reasonably held for suspicion of an offence punishable by death.

RELATING TO TRAFFIC POLICE OFFICERS

SITUATION Driving past or failing to stop at a police barrier Driving or using a motor vehicle on a specied road prohibited or restricted through a notice by the Commissioner of Police Driving a vehicle without the consent of the owner or other lawful authority Driving a Public Service Vehicle or a commercial vehicle for more than eight continuous hours within 24hrs HOW TO RESPOND Give name and address and undertake to duly answer any summons or other proceedings which may be taken against you 14 Give name and address and undertake to duly answer any summons or other proceedings which may be taken against you LIKELY PENALTY Imprisonment for a term not exceeding three months or to ne not exceeding Kshs. 3000 or to both Imprisonment for a term not exceeding three months or ne not exceeding Kshs. 3000 or to both

Request ofcers to identify themselves and ascertain correct entry onto the charge sheet

Imprisonment for a term not exceeding nine months or to a ne not exceeding Kshs. 3000 or to both

Request ofcers to identify themselves and ascertain correct entry onto the charge sheet

Imprisonment not exceeding six months or Kshs. 5000 and to two years imprisonment or Kshs. 10, 000 ne on subsequent conviction in addition to driving license cancellation for up to thirty days. Additionally, the court will order particulars of the conviction to be endorsed on any driving license held.

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Trafc offence suspects arrested and detained at police cells have similar rights to those of other offenders relating to visitation, contact with the outside word and subsistence.

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Careless parking in a designated parking area Failure to report an accident as a result of which an injury occurs, or conceals any facts from or obstructs a police ofcer while investigating the accident Driving a vehicle while license is under lawful suspension Driving under the inuence of drinks or drugs to an extent as not to have proper control of the vehicle Driving recklessly or at high speed

Request ofcers to identify themselves and ascertain correct entry onto the charge sheet Request ofcers to identify themselves and ascertain correct entry onto the charge sheet

Fine not exceeding Kshs. 200 and Kshs. 500 for subsequent convictions. Imprisonment for a term not exceeding three months or a ne not exceeding Kshs. 1000

Request ofcers to identify themselves and ascertain correct entry onto the charge sheet

Imprisonment to a term not exceeding nine months or a ne not exceeding Kshs. 3000 Imprisonment to a term not exceeding 18 months or to a Kshs. 10, 000 or to both. The convict will also be disqualied from holding a licence for 12 months

Request ofcers to identify themselves and ascertain correct entry onto the charge sheet

Request ofcers to identify themselves and ascertain correct entry onto the charge sheet

Imprisonment to a term not exceeding 6 months or to a ne not exceeding Kshs. 5000 or to both. The magistrate may also suspend the driving licence

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Conducting any animals on a road which become a danger or annoyance to other users Overloading a bicycle on a road Operating a Public Service Vehicle business without a valid PSV license Driving or acting as conductor on a PSV vehicle without a valid license or allowing persons not so licensed to do so Stopping to set down or pick up passengers at undesignated places Owning, driving or being in charge of Taxicab without proper markings

Request ofcers to identify themselves and ascertain correct entry onto the charge sheet

A ne not exceeding Kshs. 5000

Request ofcers to identify themselves and ascertain correct entry onto the charge sheet Request ofcers to identify themselves and ascertain correct entry onto the charge sheet

A ne not exceeding Kshs. 200 Imprisonment to a term not exceeding 6 months or to a ne not exceeding Kshs. 5000

Request ofcers to identify themselves and ascertain correct particulars are entered into the charge sheet

A ne not less than Kshs. 2000 and not more than Kshs. 5000

Request ofcers to identify themselves and ascertain correct particulars are entered into the charge sheet

A ne not less than Kshs. 2000 and not more than Kshs. 5000

Request ofcers to identify themselves and ascertain correct particulars are entered into the charge sheet

A ne not less than Kshs. 2000 and not more than Kshs. 5000

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Overloading a Public Service Vehicle Touting

Request ofcers to identify themselves and ascertain correct particulars are entered into the charge sheet Request ofcers to identify themselves and ascertain correct particulars are entered into the charge sheet

The driver, conductor and the owner shall be liable to a ne not exceeding Kshs. 20,000 A ne not less than Kshs. 2000 and not more than Kshs. 5000

NOTE. In some instances, police may try to arrest persons while not having warrants of arrest in some circumstances where warrants of arrest are required. It is not advisable to resist arrest. Rather, it is better to raise this issue with the magistrate at the earliest opportunity.

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Organisations of Interest
ORGANISATION Kenya Human Rights Commission (KHRC) ADDRESS Opposite Valley Arcade, Gitanga Road P.O. Box 41079 -00100 Nairobi email: admin@khrc.org Ole Odume Rd., Off Argwings Kodhek Rd. P.O. Box 7483 - 00300 Ronald Ngala, Nairobi Emai: info@kituochasheria. or.ke P.O. Box 46991,00100 Nairobi TELEPHONE 3876065 / 3874999

Kituo cha Sheria (KITUO)

3876290 / 3874191 / 3874220 fax-3876295

Name and Shame Corruption Network (Nascon) Release Political Prisoners (RPP)

254-20-3871614, 25420-3870740

Independent Medico Legal Unit (IMLU)

People Against Torture (PAT)

Federation of Kenya Women Lawyers (FIDA)

Mbaruk Road, Off Muchai Drive-off Ngong Rd. P.O. Box 4636 00200 Nairobi Email: rpp@sahannect.com David Osieli Road, off Waiyaki way, Westlands P.O. Box 1271-00606 Nairobi email: medico@imlu.org 27 Church Rd, westlands P.O. box 5399-00100 Nairobi email: patorture@iconnect.co.ke Amboseli Road Off Gitanga Road P.O. Box 46324-00100 Nairobi email:info@da.org

2714607

4441833 / 4450598

4440442/ 4446332

3873511, 3876954, 3876991

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Coalition on Violence Against Women (COVAW)

The Law Society of Kenya Complaints Commission (LSK) Mazingira Institute (MAZINGIRA)

Kenya Land Alliance (KLA)

Amnesty International Kenya (AI-K)

Kenya National Commission on Human Rights (KNCHR) Kenya Anti-Corruption Commission (KACC)

Leroghi Gardens, Mbaazi Avenue, Off Kingara Road. P.O. box 10658-00100 Nairobi email: info@covaw.or.ke Gitanga Road P.O. Box 72219-00200 Nairobi Email: lsk@lsk.or.ke No. 43, Sports Rd, Westlands P.O. Box 14550 00800 Nairobi. email: mazingira@ mitsuminet.com C.K Patel Building, 6th r Kenyatta Ave P.O. box 2177-20100, Nakuru email: klal@africaonline.co.ke AACC Headquarters Waiyaki Way, PO Box 1527 Sarit Centre, Nairobi 00606 Email: amnestykenya@ sections.amnesty.org CVS Plaza, Kasuku rd, off Lenana rd P.O. Box: 74359-00200 Nairobi Kenya Integrity Centre Milimani/Valley Road Junction P.O. Box 61130-00200 Nairobi Email: kacc@integrity.or.ke

3874357/8/9

3874664

4443219 / 26

254-51-2210398,

445 0626/7

2717900/ 00 /28/32

2717318/ 310722 Hotline: 2717468 / 0727-285663 / 0733520641 Email: report@ integrity.go.ke

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Notes

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Notes

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