A High Court has criticised the State’s arrest of suspects on Fridays and seeking court’s permission to detain them pending completion of investigations.
Justice George Odunga observed that arresting citizens on Fridays in a bid to avoid producing them in court within the 24 hours spelt out in law amounts to abuse of power.
According to the judge, the arrests, infamously known as kamata kamata Fridays, are in effect taking the country back to the dark days where suspects were held in police custody without justification.
“To effect an arrest of a citizen after hours on a Friday in order to avoid arraigning him in court till after he has spent a number of days in custody without any justification for doing so, in my respectful view, amounts to abuse of power,” the judge ruled.
He continued: “The practice that is ominously gaining ground in this country otherwise infamously known as “kamata kamata Friday arrests” whereby suspects are deliberately arrested on Fridays and kept in police custody over the weekend must not be permitted to take root.”
The verdict stemmed from a case filed by a trader, Agnes Ngenesi, who was facing arrest in a vehicle dispute.
At the same time, the judge quashed the decision by the Directorate of Criminal Investigations (DCI) to keep records of minors who have been convicted for committing crime.
The judge, in a separate case filed by a 15-year-old girl named PMK and who had been convicted of manslaughter, said that keeping records of juvenile offenders presupposes they are incapable of reforming while at the same time extinguishing their chance to have a productive life.
“I therefore agree with the petitioner that our juvenile justice system recognises that criminal offences committed by children are to be handled in a totally different way from crimes committed by adults. They, therefore, cannot be subjected to the harsh punishment of permanent criminal records, publishable on demand because children are different,” he ruled.
Meanwhile, in Ngenesi’s case, the judge also said that courts should cautiously entertain applications filed to hold suspects while investigations are ongoing.
Justice Odunga said it is only in rare cases where evidence is in a sworn affidavit that courts should allow suspects to be detained.
He was of the view that law enforcement agencies ought to finalise investigations before deciding to prefer charges or not.“Courts ought not to be used by investigating agencies as holding grounds for suspects while they are conducting investigations. To arrest anyone with a view to ensure that the person does not get access to constitutional redress with respect to the right to access bail amounts to abusing the legal process,” he said.
In PMK’s case, DCI argued that the case was preemptive as she had not begun applying for a certificate of good conduct. According to the investigating agency, where a person who had been previously convicted is released or on a successful appeal, the information is communicated in a bid to update the records.
Arson attacks
The DCI in the spate of arson attacks in high schools in 2018 announced that it would keep permanent criminal records on minors convicted of a criminal offence and which would appear in their certificates of good conduct.
PMK had been charged with murder. The State, however, reduced her charges to manslaughter after a plea bargain agreement.
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