Justice James Makau’s ruling in the Meru Police Station case of misconduct is the first by the new-look Judiciary to strike a deadly blow, and provide a powerful remedy, to police misbehaviour and violation of constitutional rights.
The landmark ruling, as reported by the official Kenya Law Reports, sends a clear message to the whole of the police force that the courts will no longer turn a blind eye to police misconduct.
In his ruling in Antony Murithi v OCS Meru Police Station & 2 others, Justice Makau forbids the OCS (officer commanding police station), police constable Antony Horo and the Attorney General from using evidence illegally obtained from Antony Murithi, accused of rape.
The ruling makes a sea change in the administration of justice. It places Kenya almost on par with the United States where the exclusionary rule of evidence forbids, with a few exceptions, illegally obtained evidence from being admitted in a criminal trial.
By a stroke of Justice Makau’s pen, Kenya has thus departed from the English position, which is the opposite of the American position.
England follows an inclusionary practice where all relevant and reliable evidence is admissible, regardless of how it was obtained, though judges have the discretion — rarely used — to exclude evidence if to admit it would result in an unfair trial.
The American exclusionary rule exists as a means of enforcing people’s rights.
The Supreme Court established the rule in 1914 as the only effective means of enforcing people’s constitutional rights, including freedom from illegal arrest, unreasonable searches and seizures, coercive action or interrogation.
Americans call illegally obtained evidence “the fruit of the poisonous tree”. The poisonous tree is the evidence seized in an illegal action.
The fruit of this poisonous tree is the evidence derived from the illegal act. Both are excluded from a criminal trial.
The Meru police violated the rights of Antony Murithi.
The Constitution provides that every person who is arrested must be informed promptly in a language he understands that he has the right to remain silent and to communicate with an advocate.
They held him and denied him access to a lawyer. Then on the third day, they secretly removed him from the cells, handcuffed him and took him to Meru General Hospital, according to his testimony.
On arrival, he asked why he was taken there. Police constable Antony Horo, who escorted him, told him that he had no business knowing why he was there.
Then he was taken into a small room and ordered to sit on the floor. His hands and legs were handcuffed, and someone claiming to be a clinical officer took a syringe and forcefully removed blood from his body.
The person, assisted by the police constable, forced his mouth open and inserted a spoon-like instrument into his mouth and scooped fluids.
The police constable took the samples and kept them in his pocket. All this time, Mr Murithi was not informed of what was happening.
And on the following day, he was charged in court with rape. About two weeks later, when the case came up for hearing, the prosecution applied for adjournment to await a report from the Government Chemist.
Justice Makau, in his ruling on February 2, 2012, found that Mr Murithi was discriminated in the way he was treated by the police, who failed to inform him his rights as an arrested person as enshrined in the constitution.
He said handcuffing him, taking him to hospital without explanation, forcing him to a small room and forcing him to sit on the floor, assaulting him with a syringe to extract blood, forcing open his mouth and scooping fluid from his mouth, was torture, cruel, inhuman, and degrading treatment.
He found the police violated his constitutional rights. But his ruling cannot be without some controversy.
The merits of Mr Murithi’s case aside, should courts in general exclude illegally obtained evidence regardless of the factual guilt of the accused?
Doesn’t this carry the danger of letting lose criminals because their rights have been violated? And is it the job of judges to check the conduct of police officers?