Wednesday, April 4, 2012

Why new Constitution is a challenge to police


With only a day to interrogate a suspect and with the suspect allowed to remain silent, to be represented by a lawyer and not to be tortured, police are finding it hard to get confessions from criminals, writes ALLAN OLINGO
Police investigators are finding themselves in a dilemma unable to crack cases within a day as they come to terms with provisions of the new Constitution.
The suspects are aware of their rights as provided for by the Bill of Rights in the Constitution and they are keen to exploit these rights at the expense of investigators getting information on a particular crime.
For many years, State agents have used torture as a way of getting information from suspects or even to suppress victims from saying the truth. But this has been outlawed by the Constitution.
Indeed, police are required to present a suspect before a court of law within 24 hours of arrest thus minimising the time they have to investigate the crime.
Bill of rights
However, despite the Constitution expanding the Bill of Rights where it has a provision that protects human dignity, rights of arrested persons, right to free hearing and rights of persons detained in custody, Kenya is still among countries where police use excess force in obtaining information from suspects.
Police spokesman Eric Kiraithe says the practice of obtaining information from suspects under duress is old and primitive, noting that his officers have embraced the western mode of interrogation.
"We stopped using such methods long ago. We must always understand that the objective of crime investigation is justice and here you must think about the victim first," says Kiraithe.
Kiraithe says that when you cannot conduct a successful interrogation in order to hand the victim or the wronged party justice, then the victim might never appreciate.
"We are having challenge with the legal system under the new Constitution. The suspect must be charged within a 24-hour period and they might secure themselves a bond. How do you extract the information from a bonded suspect using the most agreeable way," he poses.
In the interrogation process, there is also the issue of justice in terms of discovery of previous crimes, possible accomplices and any other information that will help in preventing the crime in future.
"We should be able to work around the interrogation in a professional way so that we can break the crime chain," notes Kiraithe.
Kiraithe, however, admits that the interrogation and investigation becomes a sham when the standards of investigation and prosecutions lead to a dead end.
Says Kiraithe: "That is why we need a working criminal justice system that encompasses a professional interrogation mechanism that is within the Constitution."
Weak interogation
Kiraithe admits that the current system of interrogation and prosecution is weak and not tenable especially because most of the officers do not understand the provisions of the new Constitution.
"In the western countries, they have a working criminal justice system that works within their laws and is of international standards. The interrogation mechanisms, the use of plea bargaining and their mode of extracting statements from suspects are water tight, which in most cases guarantees a conviction," says Kiraithe.
Kenya has borrowed heavily from these western countries. But even with the adoption of the new Constitution, police officers and investigators have been accused of infringing on the rights of suspects when it comes to interrogations, investigations and even prosecutions.
Nairobi based lawyer Charles Kioko says police are yet to understand that torture of suspects to offer information is itself a punishable crime and therefore a setback to their investigation.
"It is high time the police investigators realise that the statements made under duress are no longer admissible in court. It is also important for them to know that when a suspect alleges to have been tortured, the police can be charged with the offence, in the end jeopardising their investigation," says Kioko.
In mid last year, the Independent Medico-Legal Unit and the International Commission of Jurists Kenya Section released a report on torture in the country. This report showed that the regular police was leading with 59 per cent, followed by the Administration Police with nine per cent.
The report established that there was a marked increase in the use of psychological torture by the police as opposed to physical torture. Psychological torture is through intimidation and threats of injury. This had been fuelled because we lacked proper laws that define torture.
Independent Medico-Legal Unit executive director Peter Kiama noted that the only solution was to fast-track the implementation of the Police Oversight Authority Bill, 2011 and also for Parliament to fast-track the passing of the Torture Prevention Bill, 2011.
"It is time the Government ratified the Optional Protocol to the Convention Against Torture to reduce such cases. Even though the Constitution and law prohibit such practices, the legal code does not define torture and provides no sentencing guidelines, which functionally bars prosecution for torture. Police frequently use violence and torture during interrogations and as punishment of pre trial detainees and convicted prisoners," says Kiama.
In the western world, for example, investigators always liaise with the suspects’ lawyers to use plea-bargaining as a mode of securing conviction and serving justice to the victim.
In 2009, the Criminal Procedure Code (Amendment) Act 2008 (Plea agreements), was assented to by the President. It gave criminals who may have committed grave crimes or even a chain of offences a leeway to get away with their misdeeds by pleading to lesser charges — all in the name of saving judicial and prosecutorial time.
Kiraithe, however, says that kind of arrangement has failed to work in Kenya mostly because we do not have a well functioning criminal justice system.
"It will be very difficult for the police investigators to have that here mostly because the liaison between the investigators, the suspect and victims’ lawyers is missing hence making it very difficult to reach such an arrangements," says Kiraithe.
According to Kiraithe, the complicated process enacted with some conflicts with other laws, however, is likely in the Kenyan legal climate to increase the workload and compound further delays in courts.
"There is a little difference that is likely to be made in the process of dispensing justice as the victims of multiple crimes will be disappointed when the accused get off lightly for their sins," says Kiraithe.

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