CHAPTER FOUR –– THE BILL OF RIGHTS

Part 1—General Provisions relating to the Bill of Rights

28. Human dignity.

Every person has inherent dignity and the right to have that dignity respected and protected.

CHAPTER FOUR –– THE BILL OF RIGHTS

Part 1—General Provisions relating to the Bill of Rights

29. Freedom and security of the person

Every person has the right to freedom and security of the person, which includes the right not to be —

(a) deprived of freedom arbitrarily or without just cause ;
(b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58 ;

CHAPTER FOUR –– THE BILL OF RIGHTS

Part 1—General Provisions relating to the Bill of Rights

29. Freedom and security of the person

Every person has the right to freedom and security of the person, which includes the right not to be —

(c) subjected to any form of violence from either public or private sources ;
(d) subjected to torture in any manner, whether physical or psychological ;
(e) subjected to corporal punishment ; or
(f) treated or punished in a cruel, inhuman or degrading manner.

CHAPTER FOUR –– THE BILL OF RIGHTS

Part 2—Rights and fundamental freedoms

49. Rights of arrested persons.

(1) An arrested person has the right—

(a) to be informed promptly, in language that the person understands, of—
(i) the reason for the arrest ;
(ii) the right to remain silent ; and
(iii) the consequences of not remaining silent ;

(b) to remain silent ;
(c) to communicate with an advocate, and other persons whose assistance is necessary ;
(d) not to be compelled to make any confession or admission that could be used in evidence against the person ;
(e) to be held separately from persons who are serving a sentence ;

(f) to be brought before a court as soon as reasonably possible, but not later than––
(i) twenty-four hours after being arrested ; or
(ii) if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day ;

(g) at the first court appearance, to be charged or informed of the reason for the detention continuing, or to be released ; and
(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

(2) A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.

CHAPTER FOUR –– THE BILL OF RIGHTS

Part 2—Rights and fundamental freedoms

50. Fair hearing.

(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

(2) Every accused person has the right to a fair trial, which includes the right—

(a) to be presumed innocent until the contrary is proved ;
(b) to be informed of the charge, with sufficient detail to answer it ;
(c) to have adequate time and facilities to prepare a defence ;
(d) to a public trial before a court established under this Constitution ;
(e) to have the trial begin and conclude without unreasonable delay ;
(f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed ;
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly ;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly ;
(i) to remain silent, and not to testify during the proceedings ;
(j)to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence ;
(k) to adduce and challenge evidence ;
(l) to refuse to give self-incriminating evidence ;
(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial ;

(n) not to be convicted for an act or omission that at the time it was committed or omitted was not—
(i) an offence in Kenya ; or
(ii) a crime under international law ;

(o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted ;
(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing ; and
(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

CHAPTER FOUR –– THE BILL OF RIGHTS

Part 2—Rights and fundamental freedoms

50. Fair hearing.

(3) If this Article requires information to be given to a person, the information shall be given in language that the person understands.

CHAPTER FOUR –– THE BILL OF RIGHTS

Part 2—Rights and fundamental freedoms

51. Rights of persons detained, held in custody or imprisoned.

(2) A person who is detained or held in custody is entitled to petition for an order of habeas corpus.

PART IV – PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS

COMMISSIONS FOR THE EXAMINATION OF WITNESSES

155. Parties may examine witnesses
(1) The parties to a proceeding under this Code in which a commission is issued may respectively forward any interrogatories in writing which the court or magistrate directing the commission may think relevant to the issue, and the magistrate to whom the commission is directed shall examine the witness upon those interrogatories.
(2) Any such party may appear before the magistrate by advocate, or, if not in custody, in person, and may examine, cross-examine and re-examine (as the case may be) the witness.

PART IV – PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS

MISCELLANEOUS PROVISIONS

193. Right of accused to be defended
A person accused of an offence before a criminal court, or against whom proceedings are instituted under this Code in a criminal court, may of right be defended by an advocate.

PART V – MODE OF TAKING AND RECORDING EVIDENCE IN TRIALS GENERAL

194. Evidence to be taken in presence of accused
Except as otherwise expressly provided, all evidence taken in a trial under this Code shall be taken in the presence of the accused, or, when his personal attendance has been dispensed with, in the presence of his advocate (if any).

PART V – MODE OF TAKING AND RECORDING EVIDENCE IN TRIALS GENERAL

SUBORDINATE COURTS

198. Interpretation of evidence to accused or his advocate
(1) Whenever any evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open court in a language which he understands.
(2) If he appears by advocate and the evidence is given in a language other than English and not understood by the advocate, it shall be interpreted to the advocate in English.
(3) When documents are put in for the purpose of formal proof, it shall be in the discretion of the court to interpret as much thereof as appears necessary.
(4) The language of the High Court shall be English, and the language of a subordinate court shall be English or Swahili.

PART VI – PROCEDURE IN TRIALS BEFORE SUBORDINATE COURTS

PROVISIONS RELATING TO THE HEARING AND DETERMINATION OF CASES

206. Non-appearance of parties after adjournment
(1) If, at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which made the order of adjournment, the court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs.
(2) If the court convicts the accused person in his absence, it may set aside the conviction upon being satisfied that his absence was from causes over which he had no control, and that he had a probable defence on the merits.
(3) A sentence passed under subsection (1) shall be deemed to commence from the date of apprehension, and the person effecting apprehension shall endorse the date thereof on the back of the warrant of commitment.
(4) If the accused person who has not appeared is charged with a felony, or if the court refrains from convicting the accused in his absence, the court shall issue a warrant for the apprehension of the accused person and cause him to be brought before the court.

PART VI – PROCEDURE IN TRIALS BEFORE SUBORDINATE COURTS

PROVISIONS RELATING TO THE HEARING AND DETERMINATION OF CASES

207. Accused to be called upon to plead
(4) If the accused person refuses to plead, the court shall order a plea of “not guilty” to be entered for him.

PART VI – PROCEDURE IN TRIALS BEFORE SUBORDINATE COURTS

PROVISIONS RELATING TO THE HEARING AND DETERMINATION OF CASES

207. Accused to be called upon to plead
(5) If the accused pleads—
(a) that he has been previously convicted or acquitted on the same facts of the same offence; or

PART VI – PROCEDURE IN TRIALS BEFORE SUBORDINATE COURTS

PROVISIONS RELATING TO THE HEARING AND DETERMINATION OF CASES

208. Procedure on plea of not guilty
(2) The accused person or his advocate may put questions to each witness produced against him.

PART IX – PROCEDURE IN TRIALS BEFORE THE HIGH COURT

CASE FOR THE PROSECUTION

302. Cross-examination of witnesses for prosecution
The witnesses called for the prosecution shall be subject to cross-examination by the accused person or his advocate, and to re-examination by the advocate for the prosecution.

PART IX – PROCEDURE IN TRIALS BEFORE THE HIGH COURT

CASE FOR THE PROSECUTION

306. Close of case for prosecution
(2) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.

PART VIII – SUMMARY DISCIPLINARY PROCEEDINGS

151. Rights and representation of an accused person during trial
(1) An accused person who is subject to this Act shall be informed of the charges against him or her and of his or her right to be represented during the summary disciplinary proceedings or trial.

(2) Subject to subsection (1), a person may be nominated as a representative if—
(a) that person is an officer or a service member and remains as such while carrying out that function;
(b) that person consents to the nomination;
(c) the nominee is available and accessible at the time of the proposed trial; and
(d) the nominee is not of an equivalent rank or higher rank than the trial authority.

(3) The nominee under subsection (2) shall not be a person trained as a lawyer.

(4) Notwithstanding subsection (3), where the offence is punishable by death, the accused person shall be entitled to legal representation at the expense of the State.

PART VIII – SUMMARY DISCIPLINARY PROCEEDINGS

154. Hearing procedures
(1) If a person who is subject to this Act accepts summary trial, that person or his or her representative may present evidence and call witnesses during the hearing.
(2) The commanding officer shall consider all information offered during the hearing, and shall be convinced that the accused person actually committed the offence he or she is accused of before imposing the punishment.

4. Notice of trial

(1) The court before which—

(a) a protected prisoner of war is brought up for trial for an offence; or
(b) a protected internee is brought up for trial for an offence for which that court has power to sentence him to death or to imprisonment for a term of at least two years,
shall not proceed with the trial unless it is proved to the satisfaction of the court that a notice containing the particulars mentioned in subsection (2) of this section, so far as they are known to the prosecutor, has been served not less than three weeks previously on the protecting power and, if the accused is a protected prisoner of war, on the accused and the prisoner’s representative.

(2) The particulars referred to in subsection (1) of this section are—

(a) the full name and description of the accused, including the date of his birth and his profession or trade, if any, and, if the accused is a protected prisoner of war, his rank and army, regimental, personal or serial number;
(b) his place of detention, internment or residence;
(c) the offence with which he is charged; and
(d) the court before which the trial is to take place and the time and place appointed for the trial.

(3) For the purposes of this section, a document purporting—

(a) to be signed on behalf of the protecting power or by the prisoner’s representative or by the person accused, as the case may be; and
(b) to be an acknowledgment of the receipt by that power, representative or person on a specified day of a notice described therein as a notice under this section,
shall, until the contrary is proved, be sufficient evidence that the notice required by subsection (1) of this section was served on that power, representative or person on that day.

(4) Any court which adjourns a trial for the purpose of enabling the requirements of this section to be complied with may, notwithstanding any other written law, remand the accused for the period of the adjournment.


5. Legal Representation

(1) The court before which—

(a) any person is brought up for trial for an offence under section 3 of this Act; or
(b) a protected prisoner of war is brought up for trial for any offence, shall not proceed with the trial, unless—
(i) the accused is represented by an advocate; and
(ii) it is proved to the satisfaction of the court that a period of not less than fourteen days has elapsed since instructions for the representation of the accused at the trial were first given to the advocate,
and, if the court adjourns the trial for the purpose of enabling the requirements of this subsection to be complied with, the court may, notwithstanding any other written law, remand the accused for the period of the adjournment.

(2) Where the accused is a protected prisoner of war, and there is no advocate accepted by the accused as representing him, an advocate instructed for the purpose on behalf of the protecting power shall, without prejudice to the requirements of paragraph (ii) of subsection (1) of this section, be regarded for the purposes of that subsection as representing the accused.

(3) Where the court adjourns the trial in pursuance of subsection (1) of this section because the accused is not represented by an advocate, the court shall direct that an advocate be assigned to watch over the interests of the accused at any further proceedings in connexion with the offence.

(4) At any such further proceedings, if there is no advocate accepted by the accused as representing him or instructed in pursuance of subsection (2) of this section, an advocate assigned in pursuance of subsection (3) of this section shall, without prejudice to the requirements of paragraph (ii) of subsection (1) of this section, be regarded for the purposes of that subsection as representing the accused.

(5) An advocate shall be assigned in pursuance of subsection (3) of this section in such manner as may be prescribed by the Minister, by notice in the Gazette, and any advocate so assigned shall be entitled to be paid by Minister, out of moneys provided by Parliament such sums in respect of fees and disbursements as the Minister may direct.


6. Appeals

Where a protected prisoner of war or a protected internee has been sentenced to death or to imprisonment for a term of two years or more, the time within which he may give notice of appeal or notice of his application for leave to appeal to the High Court or the Court of Appeal, as the case may be, shall notwithstanding any written law, be the period from the date of his conviction or, in the case of an appeal against sentence, of his sentence, to the expiration of ten days after the date on which he receives a notice given—
(a) in the case of a protected prisoner of war, by an officer of the armed forces;
(b) in the case of a protected internee, by or on behalf of the superintendent of the prison in which he is confined,
that the protecting power has been notified of his conviction and sentence.


7. Reduction of sentence, and custody

(1) It shall be lawful for the Minister in any case in which a protected prisoner of war or a protected internee is convicted of an offence and sentenced to a term of imprisonment, to direct that there shall be deducted from that term a period not exceeding the period, if any, during which that person was in custody in connexion with that offence, either on remand or after committal for trial, including the period of the trial, before the sentence began or is deemed to have begun to run.

(2) It shall be lawful for the Minister in a case where he is satisfied that a protected prisoner of war accused of an offence has been in custody in connexion with that offence, either on remand or after committal for trial, including the period of trial, for an aggregate period of not less than three months, to direct that the prisoner shall be transferred from that custody to the custody of an officer of the armed forces and thereafter remain in service custody at a camp or place in which protected prisoners of war are detained and be brought before the court at the time appointed by the remand or committal order.

THIRD SCHEDULE
GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR DATED THE 12TH AUGUST, 1949

PART III – CAPTIVITY

SECTION VI – RELATIONS BETWEEN PRISONERS OF WAR AND THE AUTHORITIES

CHAPTER III – PENAL AND DISCIPLINARY SANCTIONS

III – JUDICIAL PROCEEDINGS

Article 99 – Essential Rules
I. General principles
No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by International Law, in force at the time the said act was committed.

No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.

No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel.

THIRD SCHEDULE
GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR DATED THE 12TH AUGUST, 1949

PART III – CAPTIVITY

SECTION VI – RELATIONS BETWEEN PRISONERS OF WAR AND THE AUTHORITIES

CHAPTER III – PENAL AND DISCIPLINARY SANCTIONS

III – JUDICIAL PROCEEDINGS

Article 100
II. Death penalty

Prisoners of war and the Protecting Powers shall be informed, as soon as possible, of the offences which are punishable by the death sentence under the laws of the Detaining Power.

Other offences shall not thereafter be made punishable by the death penalty without the concurrence of the Power upon which the prisoners of war depend.

The death sentence cannot be pronounced on a prisoner of war unless the attention of the court has, in accordance with Article 87, second paragraph, been particularly called to the fact that since the accused is not a national of the Detaining Power, he is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will.

THIRD SCHEDULE
GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR DATED THE 12TH AUGUST, 1949

PART III – CAPTIVITY

SECTION VI – RELATIONS BETWEEN PRISONERS OF WAR AND THE AUTHORITIES

CHAPTER III – PENAL AND DISCIPLINARY SANCTIONS

III – JUDICIAL PROCEEDINGS

Article 103
II. Confinement awaiting trial, (Deduction from sentence, treatment)

Judicial investigations relating to a prisoner of war shall be conducted as rapidly as circumstances permit and so that his trial shall take place as soon as possible. A prisoner of war shall not be confined while awaiting trial unless a member of the armed forces of the Detaining Power would be so confined if he were accused of a similar offence, or if it is essential to do so in the interests of national security. In no circumstances shall this confinement exceed three months.

THIRD SCHEDULE
GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR DATED THE 12TH AUGUST, 1949

PART III – CAPTIVITY

SECTION VI – RELATIONS BETWEEN PRISONERS OF WAR AND THE AUTHORITIES

CHAPTER III – PENAL AND DISCIPLINARY SANCTIONS

III – JUDICIAL PROCEEDINGS

Article 105
IV. Rights and means of defence

The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before the trial.

THIRD SCHEDULE
GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR DATED THE 12TH AUGUST, 1949

PART VI – EXECUTION OF THE CONVENTION

SECTION I – GENERAL PROVISIONS

Article 129 – Penal Sanctions
I. General observations

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.

FOURTH SCHEDULE
GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR DATED THE 12TH AUGUST, 1949

PART III – STATUS AND TREATMENT OF PROTECTED PERSONS

SECTION III – OCCUPIED TERRITORIES

Article 71 – Penal Procedure
I. General observations

No sentence shall be pronounced by the competent courts of the Occupying Power except after a regular trial.

Accused persons who are prosecuted by the Occupying Power shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them, and shall be brought to trial as rapidly as possible. The Protecting Power shall be informed of all proceedings instituted by the Occupying Power against protected persons in respect of charges involving the death penalty or imprisonment for two years or more; it shall be enabled, at any time, to obtain information regarding the state of such proceedings. Furthermore, the Protecting Power shall be entitled, on request, to be furnished with all particulars of these and of any other proceedings instituted by the Occupying Power against protected persons.

PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Questioning persons

85. (1) Where there are grounds to believe that a person who is to be questioned by a Kenyan agency following a request under paragraph 1 (c) of article 91 the Rome Statute has committed a crime within the jurisdiction of the ICC, the person—
(a) shall not be compelled to incriminate himself or herself or to confess guilt;
(b) shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness;
and
(d) shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in the Rome Statute; and
(e) shall be informed, before being questioned, that there are grounds to believe that he has committed a crime within the jurisdiction of the ICC and that he has the right—

(i) to remain silent, without such silence being a consideration in the determination of his guilt or innocence;
(ii) to have legal assistance of his choosing, or, if he does not have legal assistance, to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; and
(iii) to be questioned in the presence of a lawyer unless he voluntarily waives the right to counsel.

(3) If there is any inconsistency between subsection (2) and any other written law, subsection (2) shall prevail to the extent of the inconsistency.
(4) If the person seeks to have legal assistance assigned under subsection (2) (e) (ii), the Attorney-General shall cause such assistance to be provided.
(5) This section does not give any person a power to require another person to answer questions.

PART III — RIGHTS RESPONSIBILITIES AND PROTECTION OF VICTIMS
9. Rights during the trial process
A victim has a right to —
(a) be present at their trial either in person or through a representative of their choice;
(b) have the trial begin and conclude without unreasonable delay;
(c) give their views in any plea bargaining;
(d) have any dispute that can be resolved by the application of law decided in a fair hearing before a competent authority or, where appropriate, another independent and impartial tribunal or body established by law;
(e) be informed in advance of the evidence the prosecution and defence intends to rely on, and to have reasonable access to that evidence;
(f) have the assistance of an interpreter provided by the State where the victim cannot understand the language used at the trial; and
(g) be informed of the charge which the offender is facing in sufficient details.
Where the personal interests of a victim have been affected, the Court shall—
(a) permit the victim's views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court; and
(b) ensure that the victim's views and concerns are presented in a manner which is not—
(i) (i) prejudicial to the rights of the accused; or
(ii) (ii) inconsistent with a fair and impartial trial.
The victim's views and concerns referred to in subsection (2) may be presented by the legal representative acting on their behalf.