Behaving in a manner likely to: When the police arrest you for no offence but still charge you

Wangige market and King’eero shopping centre, both in Kiambu County, are relatively busy places and, like many other such townships, a magnet for those living nearby.

There are many reasons for people to visit the small shopping centres, including to get a hair cut, catch up with friends over some cold beer, eat nyama choma, shop for groceries, or to simply walk around and see what is new.

Some leave for home before nightfall, others stay here into the night for whatever reason.

Anthony Njenga Mbuti was one of the few people who did not leave for home on the evening of February 28, 2011.

At around 7:30pm, he was still whiling away his time at King’eero, probably catching up with friends before making the short journey home.

In a few minutes, he would wish he had never set foot in King’eero that day, and his story would find an easy confluence with that of four other men whom he probably would never have met in his life.

Those other men were Robert Ndung’u Chege, Martin Wang’ombe Weru, Douglas Njoroge Kamau and Godfred Muigai Kahunguri, who were also going about their businesses at various times and in various locations near Wangige Market on March 23, 2013, a month after Njega Mbuti walked into King’eero.

The easy confluence of these mens’ stories was that they were all arrested for nothing else other than being suspected of having a high likelihood of committing crimes.

They had not done anything wrong, and staying  late into the night at any place where there is no curfew is actually not a crime. They were, therefore, victims of police officers’ vigilance, or, as others would like to put it, hysteria.

Mr Njenga was taken to the CDF Police post at King’eero and later on transferred to Kikuyu Police Station, where he remained in detention until March 3, 2011. He was charged in the Magistrate’s Court at Kikuyu for... wait for it... no crime!

PEACE BOND STATUTE

Mr Stanley Riungu, a police officer who appeared in court to argue his case against Mr Njenga, invoked the provisions of the Peace Bond Statute and further swore under oath that he had not obtained sufficient evidence to charge Mr Njenga with any crime.

An officer from the Director of Public Prosecutions (DPP) also did not charge Mr Njenga with any offence and he remained silent throughout the proceedings.

To his surprise, Mr Njenga, despite having committed no wrong, was ordered to execute a Peace Bond of Sh50,000 and a surety of a similar amount for a period of two years.

However, since he was unable to raise the said amount, he was remanded in custody at the Industrial Area Remand Prison, where he remained incarcerated for 21 months before being released on December 27, 2012.

The four men arrested at Wangige a month after Mr Njenga were also taken to Kikuyu Police Station, where they spent the remainder of the weekend in custody.

On March 25, 2013, they were taken to the Magistrate’s Court in Kikuyu, where the court ordered them to execute a bond of Sh30,000 each with a surety of a similar amount for a period of one year.

Mr Ndung’u, Mr Wang’ombe and Mr Njoroge were unable to raise the bond amount and were remanded in custody at the Industrial Area Remand Prison from March 25, 2013 until their release on April 25, 2013.

Mr Muigai was relatively lucky as he was able to post the required amount of bond but was remanded at the Kikuyu Police Station from March 25 to March 29, 2013 as his bond payment was processed.

What is interesting for these young men, and many others around the country whose stories we might never get to tell, is that they were never charged with any offence, yet were ordered to pay bonds.

SUED THE STATE

So, what was going on here?

While justifying the arrests, Police Inspector Eganza Dewy Linyerera said that the Kabete Administration Police Post had on diverse dates between the years 2011 and 2013 received intelligence reports from members of the public that a group of Mungiki members, a proscribed criminal gang, were planning an attack.

According to the reports, the unlawful members were scattered in various parts of Wangige Market and King’eero and were planning to cause mayhem within the said areas.

“On the strength of this information, the police proceeded to these venues and arrested a group of people,” among them those presented in court, said Insp Linyerera.

He added that the police escorted the arrested persons to Kikuyu Police Station where they were interrogated on the allegations that they were adherents of Mungiki.

As such, these five had been arrested with the sole aim of preventing them from committing a crime in the near future, and to achieve that purpose they had to be slapped with a “peace bond”, or simply an order not to engage in any form of devious behaviour lest they lose their bonds.

In January last year, the men, through lawyer Boniface Masinde, sued the state for what they said were violations of their rights.

Their case was also supported by the Law Society of Kenya (LSK), which came in as an amicus curiae (friend of the court); and the International Justice Mission (IJM), which was enjoined as an interested party.

Lady Justice Mumbi Ngugi, in her judgment on March 27 this year, ruled that the provisions of Sections 43-61A of the Criminal Procedure Code (CPC), which outline the peace bond process, are unconstitutional as they violate the petitioners’ rights under Articles 27, 28, 29, 49 and 50(2) of the Constitution.

She said it was also worth observing that section 61A of the CPC, which empowers a magistrate to confine a person within a particular district, contravenes the right of citizens to freedom of movement under Article 39.

“Certainly, in our circumstances and the express provisions, tenure and spirit of the 2010 Constitution, the provisions of the peace bond process are indefensible. Whichever way one looks at it, the provisions of the peace bond process under the CPC cannot meet constitutional muster,” Judge Ngugi said in her judgment.

CRIME PREVENTION

For many people, the spirit of the Criminal Procedure Code, and especially the peace bond process, was informed by the events of the 1950s during the agitation for independence, and, according to Judge Ngugi, it cannot escape notice that this was a period in history that was characterised by “attempts by the colonial state to suppress dissent”.

“The observance of human rights, the rule of law, non-discrimination and equal protection of the law were not hallmarks of that period,” Judge Ngugi said, adding that her court fully appreciated the concerns raised by the respondents — who included the Attorney General (AG), the Inspector General of the Kenya Police (IG) and the Director of Public Prosecutions (DPP) — with regards to fighting crime.

The court, she said, also understood the concerns expressed by the AG about dealing with “recidivism”, a concept of criminal justice that refers to a person’s relapse into criminal behaviour, often after the person receives sanctions or undergoes intervention for a previous crime.

“How can we... have in our statute books legislation that creates a class that is somewhere in the void, against whom no evidence has been found, and yet they are subjected to a process which, in the words used in Section 52(2) of the CPC, must be conducted as nearly as the manner in conducting trials in criminal cases, but for whom, if we agree with the respondents, no constitutional safeguards are provided?” wondered the judge.

But the AG, IG and DPP termed such arrests “a process for the prevention of crime”, and that the persons who are subjected to the process are suspects, not accused or arrested persons.

The judge, however, said that this crime prevention strategy is a criminal process with serious penal consequences, and that it falls outside the safeguards provided by the Constitution and the criminal justice process.

“This classification of the persons subjected to the peace bond process is indeed what appears to have been accepted in our law for a long time.

The question, though, must be asked: Who or what is a suspect? What is his place within our new constitutional dispensation based on human rights, non-discrimination and the rule of law?” she challenged.

The judge noted that the police readily confess that they have no evidence on which to charge the person arrested, but argue that since they do not have evidence, the person should be bonded to keep the peace.

If one does not agree to be bonded, or if bonded but is unable to meet the terms of the bond, one is imprisoned for a term not exceeding three years.

“How, one may ask, do the police determine who is likely to commit an offence, and who should therefore be taken before a court to be bonded to keep the peace and be of good behaviour? Is it by one’s dress? Their height or weight? Their manner of walking? Their hair?” Judge Ngugi asked.

LOOKING SUSPICIOUS

She said that it cannot be permissible that because there is lawlessness and crimes committed in a particular locality, the police can arrest, and the courts lock up, persons on mere suspicion that they are likely to commit crimes, like in the case of Mr Njenga, who spent almost two years in prison.

She said this leads to the worst form of profiling, that those who “appear suspicious” — for want of a better word — because of their poverty, racial or ethnic origin, or their economic status, should be rounded up and taken to court with no evidence of a crime being committed, and end up in prison.

There has been at least one occasion when the Kenyan Parliament had an opportunity to deal with the peace bond.

The Hansard of April 1, 2003 reports that during debate on the Criminal Law (Amendment) Bill, the then Kabete MP, Paul Muite, expressed the views of the then Departmental Committee on the Administration of Justice and Legal Affairs.

He referred to a section in the said Bill which talked about finding security to keep the peace and be of good behaviour.

The MP told Parliament that his committee had recommended that the section, so much abused by the police, be deleted.

He told Parliament that the provision was aimed at punishing poverty as when the police, anywhere in the country, cannot find an offence with which to charge an innocent person who is poor and does not appear to have any means of livelihood, they will take him to the magistrate and say that they want that person bound to keep peace.

“I have witnessed people cry…. There is no threat that the individual was about to commit any breach of peace and yet he is bound and told to provide security to keep the peace and be of good behaviour. Perhaps time has now come for us not to punish poverty,” Mr Muite said.

That provision of the Penal Code was, however, not deleted or repealed, and Parliament did not go further to consider the provisions of Sections 43-61A of the CPC, under which one is required to execute a bond on suspicion that he is likely to commit a crime, and without having been tried to establish his guilt or innocence.

Judge Ngugi explained that, as Mr Muite then observed in Parliament, the peace bond provisions target the poor or those who are perceived to be in the lower echelons of society, and are therefore more “likely” to commit crimes.

“Almost invariably, the targets are poor young men who have not been tried and found guilty of any crime, but nonetheless spend time in prison with convicted, often hardcore criminals. It is doubtful whether this helps avoid the recidivism that the State says it wishes to avoid,” Judge Ngugi said.

If a person is suspected of having committed a specific crime, she advised, then by all means let him or her be arrested and charged in Court in accordance with the law, with all the rights to which an arrested or accused person is entitled to.

The arrest victims sought compensation for the violation of their rights through the application of the peace bond to them, but the judge argued that even though the Court recognised that an injustice had been done over many decades and to many people, it would place an undue burden on the taxpayer to order that the State pays compensation to the petitioners, for then it would need to make similar recompense to all those others who have been subjected to the peace bond statutes. 

WHAT THEY ARGUED

THE STATE: 

The Attorney General and Inspector General of Police, through State Counsel Anthony Opondo, defended the peace bond provision, saying that it is trite that the police can arrest a person on reasonable grounds that the person either committed or is about to commit an offence.

“It is often crucial that every kind of intelligence received by the police from the community or from any credible source be acted upon to avert and pre-empt any dire consequences, a position which is fortified by Section 84 of the National Police Service Act, which provides for community policing,” explained Mr Opondo.

He added that keeping in mind the current volatile security situation in the country, it is important that the peace bond provisions are left in place to aid the police and the public at large in crime detection and prevention.

THE PROSECUTION:

The Director of Public Prosecutions, through lawyer Fred Ashimosi, said it is not competent for any court to proceed on an assumption that Parliament made a mistake in formulating laws, basing his argument on the strong presumption that Parliament does not make mistakes.

THE LAW SOCIETY OF KENYA:

In supporting the petition, the Law Society of Kenya, through lawyer Nzamba Kitonga, said that were the peace bond provisions subjected to judicial and constitutional scrutiny, they would not survive even under the old Constitution, and should not be allowed to continue one day longer under the current constitutional dispensation.

THE INTERNATIONAL JUSTICE MISSION:

Lawyer James Kironji, for IJM, said that the Peace Bond Statutes unconstitutionally grant magistrates authority to imprison a suspect without a trial, contrary to Articles 29, 49 and 50 of the Constitution.

He added that without the vital component of cross-examination, the procedures created by the Peace Bond Statutes cannot be said to be a trial in the traditional sense of the word.