Criminal law: Of police frame-ups and planted evidence

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By Elvis Abenga

It is a trite principle of criminal law that one is innocent until and unless proven guilty by a competent court of law. This principle is derived generally from Middle Ages Europe where the ancient common law courts developed the principle “Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit”, which means that the proof lies on him who affirms and not upon him who denies; by the nature of things, he who denies a fact cannot produce any proof.

This principle was later codified and given the status of a human right by the promulgation of the Universal Declaration of Human Rights which states in Article 11 that anyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. This fundamental right is recognised under Article 50 (2) (a) of the Constitution of Kenya which is to the effect that every accused person has a right to fair trial which includes the right to be presumed innocent until the contrary is proved. Article 50 (2) (k) of the Constitution also provides for the right of an accused person to adduce and challenge evidence.

The right to adduce and challenge evidence is a fair hearing right that goes hand in hand with the right to be presumed innocent until proven guilty by a court of law. However, as this article discusses, the right to adduce and challenge evidence is challenged by the nature of some of the offences in the Penal Code (CAP 63) Laws of Kenya, as well as by overzealous police who would take advantage of lacunas in our Penal Code to do anything possible to get a conviction.The right to adduce and challenge evidence is a fair hearing right that goes hand in hand with the right to be presumed innocent until proven guilty by a court of law. However, as this article discusses, the right to adduce and challenge evidence is challenged by the nature of some of the offences in the Penal Code (CAP 63) Laws of Kenya, as well as by overzealous police who would take advantage of lacunas in our Penal Code to do anything possible to get a conviction.

Possession offences and police frame-ups

The greatest lacunas which the police and prosecutors take advantage of in trying to secure convictions at all costs are those that lie by the structure, set–up and interpretation of possessory offences in the penal code. One of the offences in the Penal Code, that are taken advantage of by the police, is the offence of possession of firearms and dangerous weapons.

Section 89 of the Penal Code provides that any person who, without reasonable excuse, carries or has in his possession or under his control any firearm or other offensive weapon, or any ammunition, incendiary material or explosive in circumstances which raise a reasonable presumption that the firearm, ammunition, offensive weapon, incendiary material or explosive is intended to be used, or has recently been used in a manner or for a purpose prejudicial to public order, is guilty of an offence and is liable to imprisonment for a term of not less than seven years and not more than fifteen years.

Possession is defined in Section 4 of the Penal Code as including, not only having in one’s own personal possession but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person.

It is noteworthy that the duration of the possession is generally not relevant in establishing whether or not there was possession. This great lacuna is often used by the police who, in many occasions, have been accused of planting evidence on persons who have been accused of various possession offences in order to get convictions.

An illustration would do us well to in demonstrating the operation of this lacuna to the advantage of the prosecution and the detriment of the accused person. Fathom a situation in which the police are in the process of conducting a raid for purposes of recovery of illegal firearms and dangerous weapons. They have set targets and yardsticks by which they measure the success or failure of the raid. Hence, in order to get a catch, the rogue officers would plant firearms or such weaponry on innocent citizenry who would then be arrested for illegal possession of firearms.

Overzealous prosecutions

This illustration, which is a sad true story of many innocent Kenyans, tells a tale of unethical evidence planting by the police. It tells of overzealousness in prosecutions and massive cover-ups and a pathetic situation of where the innocent are made to appear guilty. All this is because of the great lacuna in the Penal Code.

The Narcotic Drugs and Psychotropic Substances Control Act (Number 4 of 1994), also suffers from the same defect with regard to possession offences, such as are found in the Penal Code. For instance, Section 3 of the Act provides that any person who has in his possession any narcotic drug or psychotropic substance shall be guilty of an offence. The nature and elements of possession are not defined in the Act, neither are they elaborated.

Thus, for someone to be able to “fix” an innocent person, all they would need to do is to plant a narcotic drug or psychotropic substance on them, and then proceed to arrest them for possession. Unlike the Penal Code which requires an element of knowledge of possession for there to be an offence, the Narcotic Drugs and Psychotropic Substances Control Act does not require knowledge of possession. In short, one can be easily arrested for possession, whether or not they knew that they had the illegal substances or not.

As stated earlier in this article, the duration of the possession is not relevant in determination of liability for the offence. Thus, possession could last for as small as a second and criminal liability would be attracted. This necessitates a call for reform in the law in order to seal the loopholes which are often prone to misuse and abuse by the police and prosecutorial authorities.

The right of an accused person to challenge incriminatory evidence is made more difficult by the apparent lack of balance of power between the police and the accused person. The Kenyan Police and their investigatory arm are often more resource endowed, with capability to access material that would incriminate an accused person. Unlike in other jurisdictions, the Kenyan Criminal Procedure Code does not make it imperative for the prosecution to adduce exculpatory evidence in court. That is a role that is left to the accused at the time of the defence hearing.

Reasonable doubt

While the law stands as it is right now, the only string of hope that is left for persons who are victims of planted evidence, is the criminal law principle that the prosecution must prove its case beyond all reasonable doubt. Thus the work of an accused person, who has been put to defence on the basis of planted incriminatory evidence, would be to adduce as much evidence as possible in order for there to be reasonable doubt as to the guilt of the accused person. This is a particularly daunting task especially in possessory offences as most of the evidence that would be called by an accused person in his or her defence would be circumstantial in nature having low probative value as compared to direct evidence.

This article hopes to raise the necessary awareness to the relevant arms of the government on the necessity for law reform in the aspect of the law relating to criminal offences that have entail ingredients of possession, either fully or partly. It is hoped that there will be necessary reforms in order to cap and nip in the bud overzealous officers of the law, who would go to any extent to secure a conviction.

Writer is an Advocate of the High Court of Kenya, and a Law Lecturer.

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