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The constitution says that an arrested person must be produced before a judicial authority within a stipulated time period (say, 24 hours). The police adhere to this timeline, and before the 24 hours are up, they bring the arrested person before the judge and seek permission for continued custody. They cite various reasons: that the investigation is continuing, that the individual’s custody is required so that he may be “confronted” with other witnesses, that the individual might interfere with the evidence or intimidate witnesses if he is left free, and so on. Hanging above all this is the unarticulated premise that a judge should not interfere with the work of the police. If the price to be paid is the temporary deprivation of liberty (for a few days, a few weeks, or a few months), then that’s just how it is. The judge, therefore, should apply a light touch in remand proceedings, essentially acting as a slightly sentient rubber stamp, or a stenographer who sometimes asks a few clarificatory questions. Judicial scrutiny should be like breath on glass, as transient and as ineffectual.

That is a familiar story, one that has become so normalised that the grant of remand when the individual is first brought before a judicial authority by the police is taken as a matter of course. But sometimes we are reminded that it is not the only way that constitutionalism and criminal justice can work.

In Directorate of Criminal Investigations vs Calvince Okoth Otieno, three individuals were arrested on the 24th and 25th of March, 2023. On 27th March, the police applied to the court for ten-day custody, so that it could complete investigations with respect to offences of unlawful assembly, damage to property, robbery with violence, and so on. The police claimed that the arrested individuals belonged to an “informal group” called “Bunge la Mwananchi”, which was funded to cause damage to property and the breach of peace in Nairobi, with a view to destabilising the country (one may even say, a “larger conspiracy”, with due apologies to certain police forces!). The police further claimed that they had received credible information that the Bunge was planning further disorderly conduct, that there was a forensic report on the way, that not all witness statements had been recorded thus far, and that the arrested individuals might interfere with the investigation and intimidate witnesses if they were set at liberty.

Hon. M.A. Opondo—the Senior Principle Magistrate—refused the police’s request. She relied upon the judgment of the High Court of Kenya in Sudi Oscar Kipchumba vs Republic. In that case, Justice Joel Ngugi had held, in effect, that, at the first instance, the doctrine of proportionality must be applied to decide a police request for custody. Recall that the third prong of proportionality requires the state to demonstrate that a rights-infringing measure is the least restrictive alternative that is open to the state. Justice Ngugi had therefore laid down the following double test:

First, the State must persuade the Court that it is acting in absolute good faith and that the continued detention of the individual without a charge being preferred whether provisional or otherwise is inevitable due to existing exceptional circumstances;

Second, the State must demonstrate that the continued detention of the individual without charge is the least restrictive action it can take in balancing the quadruple interests present in a potential criminal trial: the rights of the arrested individual; the public interest, order and security; the needs to preserve the integrity of the administration of justice; and the interests of victims of crime where appropriate. By virtue of Articles 21(1) and 259 of the Constitution, the Court must act to aggrandize not diminish the personal liberties of arrested individuals in line with the other three interests. Differently put, the State must demonstrate that there are compelling reasons to deny pre-charge bail while balancing all factors within the complex permutation presented by these quadruple interests and without reifying or essentializing any.

In essence, therefore, three things follow from the double test. First, that the granting of custody is meant to be the exceptional case, and not the norm. Secondly, that the state bears the burden of showing that custody is the least restrictive option that is open to it; and thirdly, in the analysis, all other things being equal, the judiciary’s task is to expand liberty and not to diminish it.

Indeed, in the application of the standards to the case before him (which was a criminal revision application), Justice Ngugi went on to note that “the acontextual and simplistic pitting of “public order, peace and security” against the personal liberty interests and autonomy of the Applicant … is a dangerous anti-liberty ethos which was rejected by the Constitution of Kenya”. It was dangerous because, at the stage of remand, where nothing yet had been proven against an individual, this logic essentially exempted the state from its duty of maintaining law and order, and instead, placed it upon the shoulders of the accused individuals (by keeping them in further custody) (for a detailed analysis of the judgment, see this article by Joshua Malidzo Nyawa).

Of course, it is one thing for constitutional courts to lay down doctrine, and quite another for courts of the first instance to apply them to concrete cases. It is for this reason that the Hon. M.A. Opondo’s order becomes significant. Applying Justice Ngugi’s doctrine to the letter, she observed that the state had only asserted but  provided no evidence to substantiate its claim that the Bunge was being funded to spread disorder through Nairobi. Who were these funders? What were the Bunge’s activities? In other words, the moment that the state was asked for specifics—and not generalised, bare assertions—it failed to provide any. Hon. Opondo further observed that the state had claimed that it had “credible information” about the Bunge’s future activities, but had failed to provide the source of the same. While the Evidence Act immunised a police officer from revealing whence information came, it provided no such immunity when it came to the source. As far as the arguments on the forensic report and witness examination went, Hon. Opondo observed that the state had failed to show why it had not already completed this within the 48 hours that it had so far held the individuals in custody. And as far as intimidation of witnesses went, Hon. Opondo observed that, once again, the state had failed to provide specific claims to justify its fears or apprehensions, adding that it was doubtful whether, under the constitution, it was the police that had the power to judge an assembly unlawful.

It is one thing for constitutional courts to lay down doctrine, and quite another for courts of the first instance to apply them to concrete cases.

For these reasons, Hon. M.A. Opondo held that the state was essentially trying to turn the criminal process “on its head”, and that there was no warrant for the “extreme measure” of a further ten-day detention (to those of us in jurisdictions where ten-day remands are granted for the asking, this probably sounds like manna from heaven!).

When applied rigorously, the doctrine of proportionality achieves two things. First, it ensures that if less restrictive measures are available, the state is bound to use them first; and secondly, the form of analysis is such that it requires the state to justify its stand in specific terms. Through this remand judgment, we can see the power of the doctrine in the context of core personal liberty: not only was the state unable to demonstrate that continued detention was the “least restrictive alternative”, the moment it was asked to substantiate its justifications for custody with a degree of specificity, the claims fell apart.

The doctrine of Justice Ngugi and the approach of Hon. M.A. Opondo—when one thinks about it—should be the norm. The production of an accused individual before a judicial authority is the first occasion that a court has to adjudicate the claims of the state and the citizen; and what is at stake is the most basic of all rights—that of personal liberty. In such a situation, it makes eminent sense for the court to apply the doctrine of proportionality, and require the state to justify the need for continued custody; it is, after all, only such an approach that gives any meaning to the phrase, “One day of the deprivation of personal liberty is one day too many.” No doubt, the text of Article 49 of the Kenyan Constitution—which requires release on bail unless there are “compelling reasons” otherwise—makes such an approach easier to ground within the constitutional text. But ultimately, this is not so much about constitutional text as it is about judicial philosophy, and the approach of judges towards confronting state power and truly protecting the rights of individuals. The order of the Senior Principal Magistrate is an example par excellence of how courts can do just that.