Is it constitutional for police officers to arrest street children and youths for loitering and detain them without formal charges, while also requiring them to perform cleaning duties in police cells?
This discussion begins with a fundamental question. Do the actions of certain police officers, when addressing alleged offenses committed by street-connected youths as described in this text, undermine the Constitution? A direct response is necessary.
Such conduct is indeed unconstitutional. No police officer—or any person—may lawfully act in the manner described. To begin with, the offense of loitering has already been deemed unconstitutional. Ongoing debates, including the Penal Code Amendment Bill, seek to remove it entirely from the primary law of prosecution.
Turning to the issue of arbitrary arrest and ill-treatment of street-connected persons, this column proceeds on a few assumptions.
These assumptions highlight operational misdeeds within a policing service often accused of acting ultra vires—beyond the authority granted by law. Arresting a street-connected individual without valid cause violates the spirit and intention of Article 27 of the Constitution. Such arrests frequently involve profiling, which is expressly prohibited. It is irrelevant what assumptions, feelings, or perspectives a police officer may hold about an individual they suspect of committing, or potentially committing, a crime. Clauses 4 and 5 of Article 27 are unequivocal. Discrimination based on colour, race, gender, sex, condition, or any other human characteristic is prohibited.
The second assumption is that a police officer presumes the accused to be unaware of their rights upon arrest. Law enforcement officers, whether from the National Police Service or City County Inspectorate, are bound by Article 49, which anchors the concept of a fair trial. From the outset, an arrested person is presumed innocent until proven guilty, and proof must occur in an open court of competent jurisdiction within the country’s judicial system and laws.
Paragraph (b) requires that the arrested person be informed of the offense with sufficient detail to enable them to respond. Detaining someone without a legally defined offense and continuing that detention undermines the very law the officer seeks to uphold.
The third assumption is that officers neglect the arrested person’s right to access information under Article 35, read together with Paragraph (c) of Article 49(1). Article 35(1)(b) grants every citizen the right to access information held by another person when necessary to exercise or protect a right or freedom. Since police officers act as agents of the State, they are bound by this provision. Paragraph (c) of Article 49(1) further requires that an arrested person be informed of the charges motivating their arrest.
This information must be detailed enough to allow the accused to reflect and prepare a defense. Such information constitutes a formal charge.
The fourth assumption is the deliberate failure of police to recognise the role of prosecutors in criminal cases in Kenya.
Police have two key duties. Arresting suspects and investigating alleged crimes. The prosecutor, however, holds the exclusive authority to decide whether to charge an arrested person. This power cannot be delegated to the police. Thus, detaining someone in police cells without informing them of the charge they must answer is unlawful in both principle and practice. Under Paragraph (f–i), every arrested person must be brought before a court within 24 hours.
The fifth assumption is the officer’s failure to acknowledge that compelling an arrested person to clean police cells is unlawful and impunity-driven. First, it punishes someone not yet proven guilty, violating the presumption of innocence. Second, it is inhumane, eroding the officer’s moral and humane responsibility. Such exploitation targets vulnerable individuals assumed to lack the power to resist abuse.
This conduct violates Article 29, which prohibits inhuman treatment, torture, and cruelty, and also offends the framework of Community Service Orders, which lawfully assign work only after sentencing.
Lastly, the public must understand that Article 50 of the Constitution, which defines the justice pathway of fair trial, guarantees an arrested person the right to access bail at every stage of the justice chain, including at the police station.
It also requires that trial proceedings begin without unjustifiable delay. Importantly, no one should be held in custody for an offense where, if proven, the punishment is only a fine or a sentence of six months or less. From this text, such an assumption can be made without contradiction.
