Police officers who apprehend terror suspects face tough new rules requiring them to immediately notify the next of kin or the suspect’s lawyer and record the detention centre if a new Bill is enacted into law.
The draft legislative proposal, sponsored by Nominated MP Umulker Harun, would require the arresting police officer to immediately record his or her name and force identification number, the date, time and precise place of arrest, the reason for the arrest, the police station or authorised facility to which the person is taken, and the registration number of the vehicle used in the arrest.
The proposed law seeks to implement Article 49 of the Constitution, which requires suspects to be produced in court within 24 hours of arrest.
“The arrested person shall be informed of the reason for the arrest and of his or her constitutional rights, including the right to communicate with an advocate and a family member or other person of choice,” Ms Harun said in the draft legislative proposal.
“A member of the arrested person’s immediate family, or another person designated by the arrested person, shall be informed of the arrest and place of detention within six hours of the arrest.”
The proposed legislation requires that, as a general rule, police conduct arrests using clearly identifiable National Police Service vehicles.
Ms Harun said where an unmarked vehicle is considered necessary for an intelligence-led or operational purpose, its use shall be subject to prior authorisation by a senior police officer. The vehicle’s registration number, the officers involved and the circumstances necessitating its use shall be recorded in the official police record.
“No person arrested under the Act shall be held in an undisclosed or unofficial place of detention,” the proposed law states.
“The National Police Service shall maintain a central record of every person arrested under the provision, including the person’s place of detention and the time and date of production before court or release.”
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The MP said the proposed amendment seeks to ensure that protection is not undermined by special provisions relating to terrorism suspects.
“The amendment further seeks to address circumstances in which an individual may be arrested by persons whose identities are unclear, transported in unidentified vehicles, held at an undisclosed location or remain in detention without their family knowing their whereabouts,” she said.
“These safeguards are particularly important in terrorism-related investigations, where the State may legitimately require significant investigative powers but where those powers must remain subject to constitutional oversight and accountability.”
She said the requirement to notify a family member or designated person is intended to provide an important safeguard against incommunicado detention, disappearance and unlawful detention, while the requirement to record the identity of officers and vehicles is intended to strengthen accountability and enable subsequent investigation of complaints concerning arrests.
Ms Harun said the amendment does not prevent the police from investigating terrorism offences or from seeking appropriate judicial orders where continued custody is lawfully necessary.
She said failure by a police officer to comply with the safeguards would attract appropriate disciplinary and, where applicable, criminal or civil liability under Kenyan law.
She said Article 29 of the Constitution provides for freedom and security of the accused person, including protection against arbitrary deprivation of freedom and detention without trial.
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“Article 27 on equality and freedom from discrimination ensures that persons suspected of terrorism-related offences do not lose constitutional protections solely because of the nature of the allegation against them,” she said.
“Article 50 of the Constitution ensures fair hearing, including the right to a fair trial and associated procedural protections. Article 238 on principles of national security requires national security organs to comply with the Constitution and the law and to respect the rule of law and human rights.”
Ms Harun said counter-terrorism requires effective intelligence gathering, investigation and prosecution, but effectiveness in combating terrorism should not depend on removing basic safeguards surrounding arrest and detention.
“For the individual, the legislative proposal provides protection against unlawful detention, disappearance and abuse. For the police, it creates an auditable record demonstrating who made an arrest, when and where it occurred, where the suspect was taken and when the suspect was presented before court,” Ms Harun said.
“The proposed requirement concerning police vehicles is similarly intended to improve accountability. The use of unmarked vehicles should not, by itself, make an arrest unlawful where there is a legitimate operational reason.”
The nominated MP said the identity of the vehicle and officers involved should remain traceable through official records.
She said the amendment seeks to establish a balance between effective national security operations and constitutional accountability.
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