Arresting a suspect without informing them why and subsequent detention, even for a short period, is a violation of the rights to human dignity and liberty, the High Court has ruled.
Justice Rachael Ngetich found that it is unlawful for police to enforce false arrest as a punishment of suspected offenders and to deny them prompt notification on the reason for arrest.
She also stated that detention of an individual is justified only as a last resort, where other less severe measures have been considered and found to be insufficient to safeguard the end or public interest. According to her, an accused person should be informed at the time of arrest the reasons for arrest.
Justice Ngetich made the findings while awarding Ms Hellen Chebor alias Zipporah Keirttany Sogome Sh100,000 as damages for police officers’ failure to provide her with information upon being arrested at her home and illegally detaining her for eight hours.
Ms Chebor was arrested and detained in a makeshift cell at Kabel Police Post in Muchongoi, Baringo County, on March 26, 2024. The cell had no ventilation.
On the fateful day, she narrated, she was at home going about her daily chores when she went to fetch for milk at a neighbour's homestead. She was accosted and arrested by a police officer named Hussein Hatib and bundled into a police land cruiser motor vehicle and driven to Kabel Police Post.
While still handcuffed, the officer locked her into a small dark room without ventilation and was not supplied with food or even drinking water. She was not allowed to go outside to relieve herself but was instead told and forced to relieve herself inside the said makeshift police cell room, which she indignantly did.
The officer left her languishing in the said cell from 9am without telling her the reasons for her arrest until 5:30PM, the same day when she was released.
She was instructed to report back three days later and was not issued with any occurrence book number. She was forced to walk back to her home a distance of over 15 kilometers barefooted because when they arrested her she had no shoes. She reached her home at around 8:30pm at night to be received by her hungry young children
Ms Chebor testified that upon arrest she persistently asked Mr Hatib and another officer named Simon Karuri the reasons for arrest, but they answered that she would be informed at the station.
The court backed her contention that the deliberate actions of arbitrarily arresting and detaining her, without being told the reasons of her arrest and also not being charged in court even after reporting back, constituted blatant breach of her rights.
“The act of apprehending a person without notice/giving information even if it’s for a short period has a far reaching effect on his or her rights to human dignity. I have in view the harm done to the individual and his or her family before the investigations are carried out and a decision is made of charging him or her before a court of law,” declared Justice Ngetich.
She stated that being on suspicion does not justify police interfering with the right to liberty and security or confining the individual to a police station or detention facility.
The judge said any system of law, which keeps in mind the constitutional provisions on rights of arrested persons, must ask the fundamental question “whether in order to fight crime its necessary to derogate from the bill of rights entitlements by denying a suspect of misdemeanors right to liberty, freedom, dignity, equality, freedom from torture, degrading and inhuman treatment”.
“While the Petitioner may have been arrested on suspicion of committing a cognizable offence, I find it difficult to accept that this arrest was made by police officers acting with reasonable cause. To arrest, detain or investigate must be carried out within constitutionally permissible parameters,” the court ruled.
The court found that Ms Chebor suffered emotional and psycho traumatic experiences since the police officers did not provide her with information.
“The respondent did not respond to allegations of arbitrary arrest and detention in inhuman condition. The respondent’s by failing to file a response did not give the court the benefit of knowing whether a complaint was made to the police station. The respondents did not avail explanation for the arrest,” said Justice Ngetich.
