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January 20, 2019

Man wants law against drink-driving scrapped

Drivers who were arrested by police after failing a breathalyser test at Nyali Bridge on Saturday/ANDREW KASUKU
Drivers who were arrested by police after failing a breathalyser test at Nyali Bridge on Saturday/ANDREW KASUKU

A man facing traffic-related charges has asked the High Court to scrap the law that criminalises drink-driving.

Eric Khamasi says the law has set a predetermined penalty, which in turn limits the independence of the Judiciary to listen to a case and determine innocence or guilt. 

He seeks to nullify Section 44 ( 1 ) of the Traffic Act and have it declared unconstitutional.

It says a person is guilty of drink driving if he or she is driving, attempting to drive, or in charge of a motor vehicle on a road or other public place and is under the influence of drink or a drug to such an extent as to be incapable of having proper control of the vehicle. That person is liable to a fine not exceeding Sh100,000,imprisonment for no more than two years, or both.

Khamasi said the law takes away the presumption of innocence.

See also: Court stops use of alcoblow to charge offenders, says law contradicts Traffic Act

He also says police officers are abusing the law and sometimes charge people without enough evidence to prove the offence.

In his case, he said, he was forced by police to take a breathalyser test and record self-incriminating evidence when he was involved in an accident.

He recorded the statement for fear of being detained at the police station as he was unwell and was under medication. “I did protest my innocence and do believe the police exercised their power arbitrarily in illegally detaining me and failing to consider the fact that I was unwell and under hard medication,” he said in a sworn affidavit.

Khamasi added, “As a result of the intimidating nature of police officers and fearing for my well- being and safety I did reluctantly give the breath test.” However, he said, he was charged in Kajiado law courts using the same statement that was coerced. 

He wants charges against him stopped pending determination of his application. Police violated his right to security when they arrested him and failed to make  proper investigations, Khamasi says.

More: Fifteen motorists charged in Nairobi with drink driving

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