RIGHTS OF DETAINED PERSONS.

Introduction

Detention is described as the deprivation of a person’s liberty except through conviction or

imprisonment1 .

According to the Persons Deprived of Liberty Act, a detained person is an individual who is
deprived of his or her freedom under an authority of law. The measure is enacted by a law
enforcement official for purposes of investigation of a crime or for purposes of being charged
with an offence. One might also be deprived of liberty by an order of a judicial body or for
administrative action2.

To the extent that it is the deprivation of an individual liberty and freedom outside the legal
parameters of conviction it affects an individual human rights and freedoms. This deprivation
affects the main pillars of human rights not limited but including human dignity which gives
human rights their essential elements and substantial aspects.

Any form of detention should strictly follow the provisions of the law and be carried out by not
only authorised officials but competent as well. Detained persons should be treated in a humane
manner, ensuring protection of their inherent dignity as well their basic human rights. There
should be no discrimination based on race, gender, ethnicity religion or social status and every
individual should be treated with respect.

Lord Nicholas of Birkhead ,in his ruling on 16 december 2004, British Gutamano AFC v
Secretary of state for Home Department paragraph 74 of the ruling, “He describes
imprisonment without trial as an anathema in any country that observers the rule of law”.3

Kenyan Legal provisions on Rights of Detained Persons.

1
The body of rules for the protection of all the persons under any form of detention or imprisonment section 2.
2
Interpretation in Persons Deprived of Liberty Act, No 23 of 2014.
3
A De Zaya, Human Rights and Indefinite Detention, Volume 83, pg 1 (March 2005)
The international human rights respect the aspect of human dignity and abhors the rule of law the
international rights are applicable in all times whenever a state exercise it jurisdiction, not only in
peace time but also in times of conflicts as it compliments humanitarian law. Arbitral
depravation of liberty is subject to some limitation and conditions.

Different laws including municipal laws and international laws have stepped in to control this
aspect of deprivation of liberty by either states or non-state armed organisation and groups. The
third aspect of international humanitarian law is applicable in this situation, not even fight of
terror nor any restriction to control immigration can justify indefinite detention.

In the Kenyan context the constitution appreciates and guarantees these salient aspects individual
liberty and rights of an individual to observed. The constitution adopts an activism posturer and
poses to address the aspect of detention. Different provisions act as a yardstick towards the
safeguard and guarantee of this individual freedom. Inspired by the horrors of the past regimes,
the constitutional drafters adopted this articles from different international convection and made
the applicable to Kenya.

All individuals including the state and non-state armed groups have a duty and obligation to
ensure that individual’s liberty is respected and more so through the laws governing detention are
followed to the end.

Deprivation of liberty is a legitimate way in which the state can exercise control over people.
However, the rights of detained persons act as substantive guarantees that the procedures taken
are lawful as provided for by the state laws. The Constitution of Kenya ,2010 provide for
protection of the rights of detained persons. These rights are regarded as substantive rights
because they are fundamental to each individual and affect aspects of their physical freedom.

Article 19 (2) of the Constitution of Kenya, 2010, states that the sole purpose of recognising and
protecting human rights and fundamental freedoms is to preserve the dignity of individuals and
communities and to promote social justice and the realisation of the potential of all human
beings4

Article 51(1) provides for rights of a person who is detained and states that they retain all the
rights and fundamental freedoms in the Bill of Rights. Even when in a state of detention, an
individual has the right to be treated just like any other human being with only certain limitations
being enforced but only in accordance to the provisions of the Constitution 5 Any person who is
detained has a right to petition an order of habeas corpus, which allows a person to report an
unlawful detention and requests that they be taken to court to determine if it is in accordance
with the law6

Article 29 of the Constitution of Kenya, states that all have the freedom and security of person
which includes the right not to have their freedom taken away without a just cause, being
detained without a trial, subjected to torture whether physical or psychological and being treated
in a cruel or inhumane or degrading manner7

Parliament also has the obligation to enact legislation that provides for humane treatment of
detained persons. The Persons Deprived of Liberty Act, 2014, was established to give effect to
Article 29(f) and Article 51 of the Constitution. It clearly states the rights that a detained
individual has and the duties of persons in charge 8 . Section 3 of the Act, illustrates that an
institution that facilities lawful detention shall ensure that information on reasons for the
detention are recorded as well as the procedure of due process of the law is followed.

The Act provides for other rights such as, right to communicate, right to restrictions on searches,
right to reasonable accommodation, right to a nutritional diet, decent sleeping accommodation,
right to proper health care, rights to visitation among others.

Limitation of the right to privacy.

4
Article 19 (2) of the Constitution of Kenya, 2010
5
Article 51(1) of the Constitution of Kenya, 2010
6
Article 51(2) of the Constitution of Kenya, 2010.
7
Article 29 of the Constitution of Kenya, 2010.
8
Persons Deprived of Liberty, No. 23 of 2014.
Section 4 of the Persons Deprived of Liberty Act, 2014, illustrates that the right to privacy
provided for in Article 31 of the Constitution may be limited in respect to detained persons. It
lists situations where this right might be lawfully limited and they include9;

a) If it is necessary to protect the national security to the extended provided for by the
Constitution.
b) If it is for the purpose of the safety and security of law enforcement officials and the
detainees under their care.
c) Where the enjoyment of the right would be prejudicial to the enjoyment of Rights and
fundamental freedoms of others.
d) When there’s need for humanitarian assistance for migrants, refugees, undocumented
persons.
e) When there is need for psychiatric treatment with mental or sensory disability.
f) When it is for purposes for protection and security of children, elderly persons.

Article 51(2b) of the Constitution stares that Parliament shall take into account relevant
International human rights instruments on rights of detained persons. Under the supremacy of
the Constitution, Article 1 (5) states that general rules if International Law shall form part of the
laws of Kenya. Subsection 6 further states that any treaty or convention ratified by Kenya shall
form part of the law of Kenya under the Constitution, 2010.

International law on Detained Persons.

Article 9 of the Universal Declaration on Human Rights, states that no one shall be subjected to
arbitrary detention. However this short provisions has been elaborated further by other
international law instruments on human rights10

The United Nations in December 1988, adopted by general assembly resolution, a body of
principles for protection of all persons from any form of detention. The resolution described a
detained person as one who is, deprived of personal liberty except as a result of a conviction of
an offence11
9
Section 4 of the Persons Deprived of Liberty, No. 23 of 2014.
10
Article 9 of the Universal Declaration on Human Rights.
11
www oh hr.org United Nations Human Rights Office of the High Commissioner
The principles provided that all persons under any form of detention shall be treated in a humane
manner and with respect if their human dignity. Detention should be carried out strictly in
accordance to the law provided. There should be no restrictions or derogation of the human
rights owed to detained persons. The detention should be ordered by a judicial body or authority.
All principles apply to everyone who belongs to any State without any prejudice based on one’s
race, gender, ethnicity, social and economic background.12

Article 9 of the International Convention on Civil and Political Rights also states that no one
should be subjected to arbitrary detention and no one should be deprived of their liberty except in
accordance to the laws provided13 Article 10(1) of the ICCPR, further states that persons who’s
liberty had been Deprived should be treated with humanity and their inherent dignity respected.

Detained persons have a right to be protected from torture or cruel and inhumane or degrading
treatment. Therefore, no circumstance or action should be used as justification for torture or cruel
and inhumane punishment.

STATE OBLIGATIONS

Under the Vienna conference 1993 from 14th to 25th June on human rights on which Kenya was
part of it was held that states have a duty and an obligation towards attainment and realization of
human rights including rights of an arrested or detained person. These obligations include a duty
to promote, protect, fulfil and respect the individual freedoms and rights of detained persons.

THE DUTY TO RESPECT

1. Right to humane treatment and human dignity.

12
www oh hr.org United Nations Human Rights Office of the High Commissioner

13
Article 9 of the International Convention on Civil and Political Rights
Under the section of the Body of Principles for the Protection of All Persons under any Form of
Detention or Imprisonment section 1 call for the treatment of all persons under detention in a humane
manner that upholds human dignity14. The state is called to respect the human dignity of every individual
who has been detained. In the case of MVK & another V AG &2 others 15 the accused had been arrested
and detained in a police station where they were subjected to indecent searches and torture the court held
that the detention was unlawful due to the manner that it was done and conducted which violated human
dignity.

Article 51 of the constitution states that any person held in custody retains his rights and fundamental
freedom and the state should respect this rights to the extent that they are compatible with the fact that he
is detained.

A person deprived of liberty shall at all times be treated in a humane manner and with respect for their
inherent human dignity16.
Any person who subjects a person deprived of liberty to cruel, inhuman or degrading treatment commits
an offence and shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or
imprisonment for a term not exceeding two years, or both. 17

2. Additional rights upon arrest

In addition to the rights conferred to an arrested person under the Constitution, or any other written law an
arrested person has the right to:
A reasonable opportunity to secure any personal property within their possession that is not subject to
exhibition as evidence in relation to any charge and notification of legal aid where it is available and its
use.
3. Right to due process of law
Subject to Articles 50 and 51 of the Constitution, any person arrested and held in lawful custody in
relation to any criminal proceedings is entitled to the due process of law 18. The Constitution provides for

14
https://www.ohchr.org/en/instruments-mechanisms/instruments/body-principles-protection-all-persons-under-
any-form-detention

15
(2017) eKLR
16
United Nations. (1948). Universal Declaration of Human Rights; see also African Charter on Human Rights; see
also section 5, Persons Deprived of Liberty Act.
17
Section 12, Prisons Act.
18
Section 7, Persons Deprived of Liberty Act.
the threshold of justice administration from the right to an arrested person to the right to a fair trial. These
safeguards ensure the effective dispensation of justice and upholding of the rule of law.

4. Freedom from forced labor

A person deprived of liberty shall not be subjected to forced labor, except in the execution of a lawful
sentence.19
Notwithstanding, a person deprived of liberty may be required to perform such tasks as are necessary- to
ensure cleanliness of the premises at which they are accommodated or, to facilitate rehabilitation and
personal development

5. Right to vote.

This was established in the case Kituo cha SheriavIEBC&AG20, the petitioners were seeking clarification
on whether prisoners had right to vote and whether the first respondent had violated this right in failing to
register them as voters prior to the 2013 general election. The court found that under article 83(1) of the
constitution prisoners were entitled to be registered as voters and under article 38 (3)(a)(b) had a right to
vote.

Right to habeas corpus.

Every detained, imprisoned or person held in custody has the right to be produced before the court upon
application of an order of habeas corpus, this is pursuant to article 51 (2) .in LSK ,Brian Nzenze and
Erickson Aluda v AG, DPP &Inspector general of police (2018)eklr, the second and third petitioner
were arrested while riding on a motorcycle one being the rider the other a passenger and were bundled in
a car belonging to kawangware chiefs camp. Enquiries were made in all police stations in that locality but
they were not found. The police officers alleged to have arrested the petitioners denied the claims. the
first petitioner was applying for an order of habeas corpus to compel the respondents to produce the
second and third petitioners. However, they were unable to prove that indeed the second and third
petitioners were in the hands of the respondent. However, the third respondent was ordered to carry out
his function of investigating crime
asfoundunderarticle145oftheconstitution.Theapplicationofhabeascorpuswasdenied pending the report of
the investigating officer allocated that case and report from the third respondent.

19
Section 19, Persons Deprived of Liberty Act.
20
2012 eKLR
DUTY TO PTOTECT.

The state shall protect the rights of any person detained through applications made to courts
pursuant to article 23 of the constitution of Kenya.

The state also has a duty to ensure that there is no civil detention conducted by private
institutions either after the breach of a contractual duty these private institutions include hotels,
hospitals, non-state armed organisations such as radical groups and etc.

In the case of Gideon Kilondu & another v Nairobi women Hospital 21the defendant had been
detained by the hospital for not paying hospital bills. The court intervened and declared that it is
a violation of a fundamental freedom to detain someone just because of the breach of a
contractual obligation to pay bills.

DUTY TO PROMOTE & FULFILL

1. The right to communicate

A person deprived of liberty shall have the right to communicate whether by telephone or other means
with any person of his or her choice; upon the first instance of detention, being held in custody or
imprisonment; and upon transfer or movement from one institution to another. 22
2. Right to reasonable accommodation
A person deprived of liberty shall not be confined in crowded conditions.
The Cabinet Secretary shall by Regulations determine the maximum number of persons deprived of
liberty that may be accommodated in any given facility or prison and the minimum space or area of such
accommodation.23
Every competent authority shall ensure that men and women who are deprived of liberty, detained, held
in custody or imprisoned are accommodated in separate facilities,
Mothers with infant children are accommodated in facilities separate from those in which other persons
deprived of liberty are held, Intersex persons deprived of liberty are held separate from other persons,
Older members of society deprived of liberty are held in accommodation appropriate to their special
needs and age, Refugees, asylum seekers, or refugee status seekers are held separately from persons

21
(2018) eKLR
22
Section 8, Persons Deprived of Liberty Act.
23
Section 12, Persons Deprived of Liberty Act.
charged with or convicted of criminal offences, and Persons deprived of liberty on account of a civil debt
are held separately from persons charged with or convicted of criminal offences.

3. Right to nutritional diet

A person deprived of liberty shall be entitled to a nutritional diet approved by competent authorities, who
in this case mean a qualified medical practitioner or a qualified nutritionist
This diet shall take into account the nutritional requirements of children, pregnant women, lactating
mothers, and other category of persons whose physical conditions require a prescribed diet. 24
4. Right to education and access of information
Persons deprived of liberty shall be entitled to access educational opportunities and reading material that
is beneficial to their rehabilitation and personal development and to reasonable access to news media. 25
Every competent authority shall take all practicable and reasonable measures possible to facilitate
enjoyment of the right to education and access to information.

So far as it is practically reasonable, the education of children detained in prison shall be integrated with
the current system of education

5. Recreational and cultural activities for persons deprived of liberty

The Cabinet Secretary shall take such reasonable and practical measures to ensure the establishment of
recreational and cultural facilities in all institutions in which persons deprived of liberty are held for the
benefit of their mental and physical health.26
6. Right of children detained or held in prison
Where a child is detained or deprived of liberty in execution of a lawful sentence, the competent authority
shall within 48 hours notify a parent or guardian of child of such detention or deprivation of liberty. 27
Where a child arrested or detained in prison is transferred from one institution to another, the competent
authority effecting the transfer shall within 7 days notify a parent or guardian of the child of such transfer.
Where no parent or guardian is traceable the competent authority shall notify an administrative officer in
the area where the child’s home is located.
Where a child is born of a person deprived of liberty, the fact of the birth in a detention facility or prison
shall not be entered in the certificate of birth.
24
Section 13, Persons Deprived of Liberty Act.
25
Section 18, Persons Deprived of Liberty Act.

26
Section 20, Persons Deprived of Liberty Act.
27
Section 21, Persons Deprived of Liberty Act.
 7. Care of infants by mothers
A mother deprived of liberty is entitled to take personal care of the child until such a child attains the age
of four years.28
A mother and child held in detention are entitled to diet, clothing, healthcare and facilities necessary for
the development needs of the child.

8. Aliens deprived of liberty

Aliens deprived of liberty, shall be informed without delay and in any case before they make any
statement to competent authorities, of their right to consular or diplomatic assistance, and to request that
consular and diplomatic authorities be notified of their deprivation of liberty forthwith.
Where consular assistance is not available, the alien will be entitled to legal aid and assistance in
accordance with any written law.

9. Rights of persons with disabilities

They shall be treated on an equal basis with others and shall be entitled to such guarantees as are in
accordance with the Constitution which include humane treatment and respect of privacy, legal capacity
and inherent human dignity.
They shall be accommodated in facilities that adequately meet their personal needs, taking into account
the condition and nature of the personal need.

10. Right to visits

A person held in lawful custody or detained in prison shall be entitled to receive at least one visitor once
every 7 days.
A person detained in prison in execution of a lawful sentence is entitled to be visited at least once every
14 days.
nothing under section 24 shall limit the number of days on which persons deprived of liberty my be
visited by his or her legal counsel or other representative in exercise of his or her right of access to justice.
Any discussion between a legal counsel and a person deprived of liberty in the course of such visitation,
shall be held in privacy.
This right extends to visitations from human rights officers of duly recognized institutions for the purpose
of inspecting and assessing the conditions under which such persons are held.

28
Section 22, Persons Deprived of Liberty Act.
 11. Family days
The competent authorities in charge of the premises of which persons deprived of liberty are
accommodated shall designate certain days as family days during which such persons may be visited by
and interact with their family members at least once every 3 months. 29

29
Section 25, Persons Deprived of Liberty Act.