Republic v Hussen (No 2)

High Court, at Nairobi August 15, 1990

Abdulla J

Criminal Case No 54 of 1988

Constitutional Law - fundamental rights and freedoms – application – qualification of enjoyment of fundamental rights and freedoms - enjoyment of the rights by a subject not to prejudice the rights and freedoms of others - rights of an arrested person - right to be brought to Court within a reasonable time.

Criminal Practice and Procedure – arrest and detention – arrest on suspicion – whether the police can arrest a person on suspicion of having committed murder – grounds upon which a person may be deprived of his liberty – discretion of police to release a suspect on bond – how the discretion should be exercised – obligation to bring a person arrested on suspicion to court within twenty four hours – whether the obligation applies to all offences – when detention in police custody for more than twenty four hours may be considered unlawful – where a person is arrested on reasonable suspicion of having committed an offence punishable by death – burden of proving compliance with section 72(3) of the Constitution is such a case – when the burden is imposed – whether awfulness of the crime affects the standard of proof required of the prosecution – section 29 (a) and section 36 of the Criminal Procedure Code (Cap 75) – section 72(1) of the Constitution.

Evidence – statements – statements of an accused person – where any fact is deposed to as discovered from information from the accused person – whether stringent limitation may be imposed on what a witness giving account of the information may say – whether the fact discovered may be severed from the incriminatory statement made by the accused - consequence of severing such information from the incriminatory statement – section 31 of the Evidence Act (Cap 80).

Criminal Practice and Procedure - confession – confession made to police officer – need to amend the Evidence Act (Cap 80) to exclude such confession – effect of the current laws of evidence on confession.

Criminal Practice and Procedure - statements – statements of an accused person – where such statements are obtained without conformity with the Judges Rules – admissibility of such statements – factors necessary to render the statements admissible.

The accused was arrested and detained upon suspicion of the murder of his wife. While in police custody the accused allegedly confessed to the murder to the investigating officer who interrupted the accused and cautioned him. The accused understood the caution but pleaded with the officer and offered to bribe him. He took the officer to a store he owned and pointed out various places and items used in connection with the murder of his wife. He made oral statements amounting to confessions.

The defence objected to the admissibility of such statements, inter alia, on the grounds that they were obtained contrary to the Judges Rules, in breach of fundamental constitutional rights of the accused and that failure to comply with the proper procedure tainted the voluntariness and legality of the statements.

The defence submitted that the prolonged detention of the accused was unlawful and therefore whatever confessions were made must be excluded. The defence contended that there was unfair delay in charging the accused even after the police had sufficient evidence to do so. It is only after the accused is charged that he may be arrested as the rights of the accused are greater upon arrest than at the stage when he ought to be charged. The prolonged detention of the accused without charging him amounted to fundamental breaches of his rights. Further, it was argued the police had no right to arrest the accused person on suspicion as there was no provision for the arrest of a suspect.

Regarding the procedure under section 31 of the Evidence Act (cap 80) the defence urged the court to rule that incriminatory statements accompanying the discovery of facts should be held inadmissible.

Held:

1. Fundamental rights and freedoms under the constitution are subject to respect for the rights and freedoms of others and for the public interest.

2. The enjoyment of fundamental rights and freedoms under the Constitution by any individual does not prejudice the rights and freedoms of others or the public interest.

3. Under section 29 (a) of the Criminal Procedure Code (cap 75), a police officer is empowered to arrest any person whom he suspects upon reasonable grounds of having committed a cognizable offence. Murder is a cognizable offence.

4. Under Section 72(1) of the Constitution no person shall be deprived of his personal liberty except, among other things, upon reasonable suspicion of his having committed, or being about to commit a criminal offence under the law of Kenya.

5. If it is said that by virtue of section 29 (a) of the Criminal Procedure Code (Cap 75) and section 72(1) of the Constitution the police have no right to arrest a suspect until they are in a position to charge him, then the provisions of section 36 of the Criminal Procedure Code (Cap 75) would seem to be redundant.

6. Prior to the amending Act 13 of 1988 section 36 of the Criminal Procedure Code (Cap 75) stipulated that a person arrested upon suspicion may be taken into custody and unless the offence appears to be of a serious nature, he shall be released on bond if it does not appear practicable to bring that person to court within twenty four hours.

7. The officer in charge of the Police Station is required to inquire into the case before he exercises his discretion to release the person on bail. The officer may release a person if in his opinion there is insufficient evidence to proceed with the charge.

8. It appears that where the offence appears to be of a serious nature the person may be detained in custody and shall be brought before a court a soon as practicable.

9. It is therefore not correct to say that the police have no right to arrest a suspect until they are in a position to charge the suspect forthwith.

10. The obligation to bring a person arrested upon suspicion to court within twenty four hours is imposed for an offence which does not appear to be of a serious nature.

11. For the offence of murder and treason, it would seem that the requirement to bring the person suspected of such offence within twenty four hours does not apply.

12. It cannot be said that a person who is detained in police custody for more than twenty four hours is detained unlawfully unless after considering all the circumstances of the case, the court comes to a conclusion that the police acted in unjustified disregard of the provisions of the Criminal Procedure Code (Cap 75).

13. By amending Act 4 of 1988, the burden of proving compliance with section 72(3) of the Constitution in the case of a person arrested on reasonable suspicion of having committed an offence punishable by death is imposed if the person is not brought before the court within fourteen days.

14. The awfulness of the crime is irrelevant to the standard of proof required of the prosecution.

15. Regarding the procedure under section 31 of the Evidence Act (Cap 80), when any fact is deposed to as discovered in consequence of information received from a person accused of an offence, the Court found it difficult to grasp the reasoning that a stringent limitation may be imposed of what a witness giving an account of the information may say and that the fact discovered may be severed from the incriminatory statement made by the accused.

16. Section 31 of the Evidence Act (Cap 80) allows such information not only to be proved, but it may be so whether it amounts to a confession or not. If the information were to be severed from the statement amounting to a confession, the discovery of fact could be rendered meaningless.

17. The Evidence Act (Cap 80) needs to be amended to exclude statements in the nature of confession made to a police officer of whatever rank. Nevertheless, such laws of evidence on confession still stand in force. Justice must be administered according to the law.

18. The Judges Rules are only rules of practice. It is in the discretion of the trial judge to admit in evidence statement made by the accused person although the statements are not obtained strictly in accordance with the Rules.

19. Before a trial judge exercises such discretion he has to be satisfied that the statements were made voluntarily and were substantially true.

20. This court rules that such statements amounting to confession are admissible in evidence.

Objection overruled.

Cases

1. Ochieng v Uganda [1969] EA 1

2. Ngumbao v Republic [1975] EA 282

3. Njuguna s/o Kimani and others v Reginam [1954] 21 EACA 316

4. Rex v Kaperere s/o Mwaya (1948) 15 EACA 56

5. Musai, Wambua v Republic High Court Criminal Appeal No 1086 of 1966

6. Ekai v Republic [1981] KLR 56

7. Bassan and Kiambu v R [1961] EA 521

8. Kuruma v Reginam (1955) 22 EACA 364

9. Anyangu v Republic [1968] EA 239

Texts

1. Sarkar, SC (1980) Law of Evidence Bombay: Sarkar & Sons Private Ltd 13th Ed

2. Taylor, JP (1920) A Treatise on the Law of Evidence London: Sweet & Maxwell 11th Edn p273, 582

3. Durands Evidence for Magistrates

Statutes

1. Evidence Act (cap 80) section 31

2. Criminal Procedure Code (cap 75) sections 29(a), 36

3. Constitution of Kenya sections 72(1), 72(3)

Advocates

Mrs Njogu for the Republic.

Mr Ghalia for the Defendant.