Police errors hand suspects freedom

Last Friday murder suspects George Kung’u and Samuel Njuguna Mukuru alias Baker were released by the High Court on a technicality. Two days earlier, another judge released Mr Peter Mwaniki, accused of murdering his girlfriend.

Mr Mwaniki had been accused of killing his girlfriend, Sabina Katunge. He was arrested on September 24, 2002, and taken to court 11 months later.

Mukuru and Kung’u were also accused of killing their girlfriends- Zipporah Mumbua and Rose Njeri respectively. They were held in police custody for more than 14 days.

A few weeks earlier, a man accused of killing his teenage daughter was also freed by Mr Justice Onesmus Mutungi.

And prior to that the same judge had released another man, aged 24. Mr Orobi Ongondo Obare, who was accused of killing Winfred Orobi walked to freedom after the judge ruled that he was held in police custody longer than the mandatory 14 days.

Since May, more than 50 murder suspects have been freed in Nyeri and Nairobi alone.

Whereas Chapter One of the Constitution guarantees the right to personal liberty. Section 72, sub-section 3(b), requires that petty offenders be taken to court within 24 hours while those held for capital offences including murder and robbery with violence, be arraigned in court within 14 days after arrest.

Mr Orobi stayed in police custody for 129 days after his arrest at his farm in Kiambu. Charles Ndirangu was accused of killing Ann Wanjiku. He was held in custody for 27 days.

However as the suspects count their luck, the trend has sent a shock wave within the legal fraternity as its being viewed as defeating the cause of justice. One judge of the High Court termed it an alarming trend, which must be checked. Many would tend to blame the police for this trend since they take long to arraign suspects in court.

While releasing Mr Mwaniki, presiding judge of the criminal division of the High Court Mr Justice Muga Apondi asked the police boss, Maj-Gen Hussein Ali, to take action against officers who hold suspects in custody longer than the required period.

On its part, the police force point to the mandatory 14 days and 24 hours saying it’s too short a time to enable them complete investigations.

“Detectives are required to arrest in order to establish if a crime was committed then start assembling evidence. It may require conducting identification parades, postmortem examinations and compiling expert reports,” Police spokesman Eric Kiraithe said.

Once investigations are completed, the final report must be scrutinised by the State Law office in the Attorney-General’s chambers, after which the police would have the authority to prosecute suspects, he added.

But a judgment of the Court of Appeal offered some advice to the police, unless they chose to ignore it. On July 7, 2006 Mr Justices R.S.C. Omolo, Erastus Githinji and William Deverell released a man who was convicted and sentenced to hang for robbery with violence.

Good explanation

The judges said that the rights of Albanus Mwanasia Mutua were grossly violated after he was brought to court eight months after his arrest. They said all that is required of the police officers is a good explanation to the magistrate or a judge as to why they held the accused longer than is allowed.

In some places, for example, Maralal where capital offenders are tried in Nakuru, getting a vehicle to court is a problem; this is a reason the trial courts would consider adequately.

Mr Justice Luka Kimaru explains that whereas courts have a duty to uphold the rights of persons charged with criminal offences, especially the human rights guaranteed by the Constitution, the courts too have an obligation to protect the society, he said.

In another judgment, the Court of Appeal emphasised that courts consider whether an accused person has been brought to court within a reasonable time.

“In our view, the mere fact that an accused person is brought to court either after twenty-four hours or after fourteen days, as the case may be, stipulated in the Constitution does not ipso facto (by that very fact) prove a breach of the Constitution,” said appellate judges Samuel Bosire, Erastus Githinji and Joyce Aluoch .

Government Chemist

But they insist each case has to be considered on its own merit.

“In deciding whether there has been a breach of the above provision the court must act on evidence,” they added.

Mr Kiraithe also said that lack of a forensic laboratory was a major impediment to police investigations because scientific evidence takes too long to gather and compile.

Currently, police depend on the Government Chemist at Kenyatta National Hospital for investigations requiring scientific evidence. Some investigations requiring DNA examinations are also sent to Europe or South Africa, further delaying completion of some cases.

A move to set up the forensic laboratory was derailed after the project was linked to the Anglo Leasing scandal. The lab, if eventually set up, would eliminate the many hurdles in the way of police investigations.

If the ongoing modernisation of the Criminal Records Office and computerisation of the fingerprint section are successfully completed, police investigations and prosecutions would undoubtedly be faster.

Fingerprints

Currently, the CRO is clogged with millions of unresolved scene-of-crime manual records like fingerprints.

Other records include criminals’ profiles, convictions and pathology register.

Police stations submit fingerprints of the accused or arrested persons on a regular basis. Other records submitted to the office are for convicts.

The information is supplied by the Prisons Department. Foreign missions in the country also provide records of their employees.

The army submits fingerprints of recruits for vetting to avoid enlisting criminals. Police and other experts say this information is stored in files and it takes even weeks to retrieve and match fresh inputs with accuracy.

According to the prosecutors, the law requires the investigating officer to hand over a case file to the district CID boss who then must seek the opinion of the provincial CID boss before taking it to the State Law office for consent to be granted.