The use of police powers to search and arrest without a warrant has come into sharp focus recently. This has led to discussions on various platforms, especially on whether police actions are legal.
Some pundits opine that the police are required to have obtained a search warrant from courts before entering and searching a person's premises.
The powers of police in Kenya are wide ranging, governed by the constitution and legislation that enables officers to arrest and search suspects.
Every person arrested must be treated as a human first, irrespective of the fact that he or she is suspected of criminal activities. The constitution regards arrested persons as innocent until proven guilty by courts of law.
Article 243 of the constitution establishes the National Police Service. Article 245 provides for the establishment of the Office of the Inspector General of the NPS whose main role is to exercise independent command over the service.
Section 10 of the National Police Service Act provides for the functions of the IG. Under Section 51(1) of the Act, a police officer is required to investigate crimes and apprehend all persons he or she is legally authorised to apprehend and whose apprehension sufficient ground exists.
For arrest, the police officer shall touch or confine the body of the person to effect the arrest as per section 21(1) of the Criminal Procedure Code. There are two types of arrest: arrest with a warrant and arrest without a warrant. Section 59 of the National Police Service Act provides for the powers of police to arrest without a warrant.
An arrest is an important phase during investigations of crime. Timely arrest of suspects is critical for proper and effective investigations, it deters criminals from committing crimes and ensures peace and security.
A person can be arrested by a police officer under several circumstances where reasonable grounds exist. Section 29(a) of the CPC provides for the power of the police to arrest without a warrant upon reasonable grounds of having committed a cognisable offence. The force used to effect an arrest must be reasonable.
Justice Luka Kimaru (as he then was) in Kennedy Omondi Ochieng & 38 Others v Republic Criminal Revision No 143 of 2019 held;
“... However, for the police to arrest a person without a warrant of arrest there must be reasonable ground to believe that the person has committed an offence. Some of the reasonable grounds have been set out under Section 58 of the National Police Service Act. It is instructive to note that the power of arrest by the police without a warrant is specifically stated to be “subject to Article 49 of the Constitution ...
… The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer's own account of the information which he had which matters, not what was observed by or known to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong”.
Police must ensure that they apply their mind to the facts of each investigation before effecting an arrest
One of the most important investigative tools donated by the legal regime is the power to conduct a search with or without a warrant.
Conducting a search by police officers must be understood from the fact that there is inevitable physical intrusion in regard to a person or property. This at times causes a clash between criminal law principles and the constitutionally guaranteed rights of every citizen.
Various sections of the law deal with search. It is critical to understand that significant legal principles and case law that guide conducting a search.
Section 57 of the National Police Service Act provides that police may conduct a search without a warrant. It also sets the conditions that must be met.
Section 25 of the CPC provides that a police officer may conduct a search on an arrested person. Further, Section 22(1) of the Code provides for circumstances under which a search may be carried out without a warrant provided reasonable grounds exist.
The foregoing provisions leave no doubt that a police officer may arrest and search a person. It is not mandatory for a police officer to obtain a search warrant as a condition precedent for conducting a search.
Section 118 of the CPC provides that a court may issue a search warrant on application by a police officer. The application filed before the court is ex-parte.
In Samson Mumo Mutinda v Inspector General National Police Service & 4 others (2014) eKLR the court held that;
“… In the course of investigations, the Police are entitled to search premises and seize property without warrants in certain circumstances under authority of the National Police Service Act …”
One of the pillars of our democratic society is that the rights of an arrested person are sacrosanct and must be always protected. Police must always inform the arrested person of the reason for their arrest and inform them of their rights.
It is therefore a cardinal principle the officers of the National Police Service must adhere to and protect the rights of individuals as enshrined in the Constitution. A human rights-centric approach is essential in the course of their duties.
