Police routinely broke the old law; will they enforce the new Constitution?

One of the tremendous improvements in the new law over the old one is in the Chapter on the Bill of Rights.

But human rights entail both rights and obligations; while we are entitled our rights, we should also respect the human rights of others.

The police have been ordered to read and understand, especially Article 49 to ensure that they do not violate human rights under the new constitution.

However, it is erroneous to refer to some of these laws as new. The former constitution was not necessarily bad; the issue is that it was never followed by the law enforcers.

Sections 70 and 71 of the former Constitution stated that a person had a right to life, and that no person should be deprived of his life intentionally, save in execution of the sentence of a court order.

Section 14 of the Police Act also identifies the protection of life and property as one of the functions of the force, and no person should be subjected to torture or to any other cruel or inhuman treatment.

However, despite such provisions being in our old Constitution, we still witnessed cases of extra-judicial killings by the police. Thus the law enforcers must not only understand the law, they should feel duty-bound to operate within it.

There have been cases of suspects being told they would be informed of the reason for arrest later at the police station where they would be detained for weeks before being arraigned in court.

Still, the law was very clear; an arrested person had to be informed as soon as reasonably practicable, in a language that he or she understands, of the reasons for his arrest. If a suspect was to be charged, he had to be brought before a court as soon as is reasonably practicable.

According to Mr Sekou Owino, a lawyer, the police will henceforth only arrest suspects towards the conclusion of their investigations because the new law requires that a suspect be arraigned before a court of law not later than 24 hours even for capital offences. “We shall see very few if no preemptive arrests under this constitution,” adds Mr Sekou.

Section 77 (8) of the former constitution explains the raison d’etre for drafting charges. The charge sheet must indicate the offence, section of the law and the particulars of that offence.

The section reads that no person shall be convicted of a criminal offence unless that offence is defined, and the penalty is prescribed, in a written law.

This notwithstanding, people were still arrested for offences not recognised in law. The law enforcer must understand the law breached and the elements of the crime that ought to be proved, before charging any suspect.

If after questioning a suspect they decide not to press charges, they should release him. Section 19 of the Criminal Law states that the means used to arrest a person must be reasonable having regard to the gravity of the offence.