Deprivation of liberty safeguards: Too many loopholes

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Beverline Ongaro  

The right to liberty is a rule of which its deprivation is the exception. It is a well-established principle in law that where a person is being deprived of liberty, it should not be arbitrary, unlawful and illegal. The facilities holding such persons should be humane, of dignity and observe their fundamental freedoms and rights. Kenya is a signatory to the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and People’s Rights, which guarantee the right to liberty in Article 9(1) and Article 6, respectively. Further, Section 72 of the repealed constitution of Kenya guaranteed the right to liberty, and stipulated specific circumstances for derogation from the liberty. 

Despite the legal anchorage of the right to liberty, tragically unlawful, illegal and arbitrary deprivation of persons’ liberty has been blight to the Bill of Rights as under the old and new Constitutional orders, in violation of those Constitutions’ provisions, particularly the fundamental freedoms and rights. Under Kenya’s old Constitutional order to the threshold of the Constitution of Kenya 2010, the justice and legal landscape is replete with incidents, narratives and cases of unlawful, illegal and arbitrary detentions. These were convoyed by unimaginable and diabolical torture, inhuman, cruel and degrading treatment, and flagrant violations of fundamental freedoms and rights. These are  exemplified in the infamous Nyayo Torture Chambers, and, for example, the cases of Ann Njogu & 5 Others vs. The Republic Misc. Criminal Application 551 of 2007 [eKLR] 2008 and Salim Awadhi Salim & 10 others vs. Commissioner of Police & 3 others, Petition No. 822 of 2008, HC at Nairobi [eKLR] 2013. In these cases, police officers, apart from unlawfully and illegally detaining the petitioners, and subjected the petitioners to inhuman, cruel and degrading treatment.  

Under the 2010 Constitution, the violations of fundamental freedoms and rights of persons deprived of liberty are poignantly evident by their living conditions at holding facilities. Some of these violations were encountered by the Task force on the Development of Bail and Bond Policy Guidelines during their visits to various correctional facilities in 2014 while developing the Policy Guidelines. The violations included persons deprived of liberty being having inadequate diet, poor bedding and clothing, the mixing of male adults and minors thereby exposing them to sexual abuses, absence of separate facilities for women with infants, persons with disabilities, intersex persons and the elderly persons, and of some people being detained for offences that do not exist in law.  

Compounding the situation is that there have not been deterrent measures taken against law enforcement officers and administrative officers who have violated the fundamental freedoms and rights of detainees. Rather, the officers have continued with their duties. This unusual awkward yet shocking norm was noted by the courts, in the case of Justus Ototo Nyagiri v. Commissioner of Police [eKLR] 2013, wherein Justice Mumbi Ngugi observed that “it is a matter of concern that this incident occurred and there was no attempt by the State to investigate the matter, identify the individual officer(s) responsible for the violations, and take appropriate disciplinary action against them to deter future violations. It demonstrates a failure on the part of the state to meet its constitutional obligation to protect the human rights of its citizens, particularly from violation by its officers, and the State must become alive to this obligation.”

In cognisant of the need to safeguard the rights of persons deprived of liberty and perhaps to advance the rehabilitative philosophy underpinning criminal justice system that the Constitution guarantees persons detained or held in custody or imprisoned of their fundamental freedoms and rights in Article 51(1), Article 51(3) (a) and (b) has mandated Parliament to enact legislation that, provides for the humane treatment of persons detained, held in custody or imprisoned, and takes into account the relevant international human rights instruments.

Pursuant to this provision, Parliament enacted the Persons Deprived of Liberty Act (PDLA) in 2014. The legislation was assented to on December 24, 2014 and commenced operation on January 15, 2015. The objective of PDLA is to provide sufficient guidance regarding the deprivation of a person’s liberty, and was formulated with a degree of precision required by the Constitution. Sections 3(1) and 3(2) PDLA affirm the right to liberty of persons, and limitations to the right are only to the extent permitted in the Constitution. 

In line with General Comment No. 20 on Article 7 of the ICCPR by the Human Rights Committee, Section 3(3) of PDLA has specific provisions to guarantee effective protection of detained persons. The Section obligates institutions depriving persons of their liberty to maintain registers with personal details of the persons, such as name, age and address; the physical conditions, including medical records of such persons; the reasons for deprivation of liberty; and steps taken to accord the persons deprived of their liberty the due process of the law. 

The PDLA affirms the protection, respect and promotion of fundamental freedoms and rights of persons deprived of liberty. The PDLA stipulates the circumstances the right to privacy of persons deprived of their liberty may be  limited (Section 4); affirms the right to humane treatment and human dignity of persons deprived of liberty (Section 5(1); the right to secure personal property that is not evidence in court (Section 6(a); the right to be informed of legal aid when available (Section 6(b); and the right to due process of the law (Section 7), which essentially outlines some of the  provisions on the right to fair trial guaranteed in Article 50 of the Constitution. 

The PDLA further guarantees persons deprived of liberty the right to communicate (Section 8); the right to inspect receipt book and personal property of persons deprived of  liberty (Section 9); the right not be subjected to unreasonable, intrusive and undignified body searches (Section 10); the right to diplomatic assistance of aliens deprived of their personal liberty (Section 11); the right to nutritional diet (Section 13); the right to decent bedding and clothing (Section 14); the right to health care (Section 15); the right to confidentiality to health information (Section 16); the right to freedom of conscience, religion and belief (Section 17); the right to education and access information (Section 18); freedom from forced labour; access to recreational and cultural activities; and the right to visits by lawyers, representatives and family members (Sections 24 and 25).

The Act also stipulates the specific rights of special categories of persons deprived of liberty, such intersex persons, children, women with infants, persons with disabilities and elderly persons. The Act mandates the Cabinet Secretary in charge of administration of justice to undertake appropriate measures to ensure such categories of persons are accorded humane and dignified treatment, and that their rights are respected. Such appropriate measures include being held in separate facilities as specified in Section 12 of PDLA. 

Considerations for efficacy 

Commendably, Section 27 of PDLA spells out complaints procedures for persons deprived of liberty, whose fundamental freedoms and rights have been violated. Such persons may lodge complaints personally or have it done on their behalf to the administrative officer in charge of the facility they are being detained. The officer is required to record the complaint in writing, investigate the complaint, take reasonable measures to address the complaint and communicate the measures and the recommendations undertaken in respect of the complaint to the complainant. 

Persons deprived of liberty may elect to lodge complaints of violation of their fundamental freedoms and rights to the Cabinet Secretary, the Kenya National Commission on Human Rights or the Commission on Administrative Justice. Glaringly, neither does the Act require such complaints to be determined within reasonable period, nor does it stipulate the hierarchy of addressing complaints. While on one hand having various complaints mechanisms is commendable, for it affords persons deprived of liberty various forums to seek redress, thereby circumventing delays, on the other hand, it could result to impasse or delays, where a particular forum refrains from addressing lodged complaints as it perceives that another administrative forum might be addressing the complaints at hand, unless, of course, these forums coordinate themselves to ensure synergies and eliminate duplicity of efforts. 

There is hackneyed consensus that good people deprived of liberty under forlorn conditions and whose fundamental freedoms and rights have been violated are not only physically harmed but also psychologically and emotionally injured. In this scheme of consensus, the psychology and pathology of law enforcement and administrative officers who violate the rights of persons under their custody is often overlooked, particularly their high tendencies to become sadistic and pathological and to institutionalise these behaviours – inimical to humanised service from law enforcement agencies and police reforms generally. This fact has been aptly articulated in Philip Zimbrado, Lucifer Effect: How Good People Turn Evil (2007) that poignantly illustrates through Zimbrado’s classic Stanford Prison Experiment how detention facilities with a culture of treating its detainees inhumanely and cruel manner has a way of turning well intention and good law enforcement officers into bad ones. In the Kenyan scenario, there is no need to overstate this fact. A cursory look at the Report of the National Task force on Police Reforms attests to this narrative and reality. 

The PDLA imposes fine and imprisonment penalties to individuals who violate the fundamental freedoms and the rights of persons deprived of their liberty as provided for in the Act, but this is not enough. What if such a person pays the fine? What then? Do they then continue to work at the facility where they might continue with similar violations? There ought to be specific measures to be taken against such individuals, which include transfer or suspension from the facilities where the violation is alleged, disciplinary action, enrolment in corrective or rehabilitative programmes, and payment of compensation to the victims whose freedoms and rights they have violated.     

Section 4 (e) of the PDLA provides for administrative deprivation of liberty to secure a person’s access to psychiatric treatment. This needs to be given due consideration and perhaps calls for caution because psychiatric treatment does not have a definitive meaning as it keeps on evolving with research in psychiatry spheres. In the field of medicine there is increasing flexibility in treatment. The general society’s attitude to mental illness is slowly changing towards a greater understanding of the problems of mental patients. This is evident through deluge of information in Kenyan’s milieu touching on mental health. In this regard, therefore, it might be persuasive to emulate the well established conditions under which persons may be deprived of liberty for purposes of accessing psychiatric treatment. Such conditions include ones set out by the European Court of Human Rights in the Case of  X v. United Kingdom, which articulated that in order for persons to be detained for mental health, then the following conditions should be met: “Except in emergency cases, the individual concerned must be reliably shown to be of unsound mind, that is to say, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder.”

While there is positive recognition among both state and non-state actors that PDLA will significantly reduce violations of fundamental freedoms and rights of persons deprived of liberty, especially in cases of national security, there are clear indications that the Act’s implementation will be very deliberate. 

This is because there is no specific budgetary allocation to oversee its implementation in the current fiscal year. The erroneous justification afforded so far by some pertinent state actors expected to implement PDLA is that, given the Act’s implementation requires massive resources, then it should be realised progressively. Obviously, it might take quiet sometime before we can safely aver that we have truly departed from the dark days.

 

Writer is an advocate of the High Court of Kenya   

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