A Kenya constitution booklet /FILE
Under evidence law certain evidence may not be used in court – though this should be restricted to necessary situations, and the main focus be on whether the evidence is credible and proves the facts.
Examples of evidence that cannot be used are that of spouses of (Christian) marriages against each other in a criminal case (sometimes), and hearsay evidence (what the witness was told about not what they saw or heard).
For a long time Kenyan law has said that no confession to having committed a crime may be used as evidence against the confessing criminal unless it was made before a judge, a magistrate or before a police officer with at least the rank of inspector- plus a third party of the person’s choice. In India (from where the rule came) no confession to a police officer can be used in court, and the inclusion here of inspectors and above is a relatively recent weakening of the protection.
The idea is to prevent a common problem: confessions induced by police brutality. One reason is to discourage police abuse of people. The other reason is unreliability of such evidence – people will confess to almost anything if they are sufficiently scared or hurt.
This is not as successful as you might think because people confessing because of police mistreatment may, as a result, plead guilty, which means no evidence gets considered.
Before the 2010 Constitution, how evidence was obtained did not generally prevent its being used. Stolen, obtained by false pretences, provided by a disgruntled employee, obtained by police searching a person or premises unlawfully because they didn’t have a warrant – the evidence could still be used, although the person who wrongly obtained it might be taken to court for that wrongdoing.
The Constitution
The Constitution of Kenya Review Commission wanted to introduce into the constitution a narrow exception to the general rule about evidence being admissible even if obtained in some wrong way. They said they proposed a bar on “evidence obtained through police torture and evidence obtained through illegal searches.”
The language in their 2002 draft is basically in the constitution today: “Evidence obtained in a manner that violates any right or fundamental freedom in this Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice” (Article 50(4)).
This was taken directly from the South African Constitution. It also reflected recent developments in other counties.
Unlike most other countries’ law, the Kenyan provision is not limited to criminal cases – so this issue can be raised in a civil, or constitutional, case as well. Was this an error? The South African original applies only to “Arrested, detained and accused persons”.
Unpicking Article 50(4)
Justice Onguto put it well: “There has to be established that a right in the Bill of Rights was unjustifiably violated whilst obtaining the evidence in question. Secondly, there must then be shown that the admission of such evidence would render the trial unfair or be detrimental to the administration of justice” (2016).
Our courts should stop talking about “illegally obtained evidence” – only evidence obtained in breach of human rights is covered.
Whose rights?
I would argue that this is about human rights. The government does not have human rights (there are Kenyan cases saying that). I would argue that commercial concerns do not either. Human rights are about human dignity (Article 19(2)).
One South African court said, “The court’s discretion must be exercised ‘by weighing the competing concerns of society on the one hand to ensure that the guilty are brought to book against the protection of entrenched human rights accorded to […] accused persons.’”
This suggests that the underlying idea is protect the accused person against mistreatment not to exclude evidence obtained by dubious means from someone else.
What does “otherwise
be detrimental to the administration of justice” mean? I suggest it could mean,
for example, that to allow the evidence would be an incentive to people
searching for evidence to act illegally. Secondly, that allowing such
wrongfully obtained evidence to be used in court might discredit the justice
system in the eyes of the public.
Kenyan criminal cases
Article 50(4) was used in the case involving the Deputy Chief Justice. The court said “The manner in which the DCI obtained access to the petitioner’s accounts … was through acts of misrepresentation and misuse of a court order that rendered the evidence thereby obtained, and which formed the bedrock of the charges against the petitioner [DCJ], illegal in a manner that was detrimental to the administration of justice.” It is unfortunate that the court neither identified a violation of a human right, nor explained exactly how it was detrimental to the administration of justice.
Republic v Ali
(2024) is a worrying case. The judge made a suggestion that cases under certain
Acts of Parliament should be exceptions to Article 50(4) because of “their
significant impact on the general public safety and the national security
interests of Kenya”
His list included the Prevention of Terrorism, Sexual Offences, and Prevention of Organised Crimes Acts.
The judge’s suggestion to remove this protection from people accused of these crimes ignores that the right to a fair trial (under which Article 50(4) falls) cannot be limited (Article 25).
Civil cases
There are two major Supreme Court cases: Njonjo Mue v IEBC (2017 – about an application for scrutiny of votes in the 2017 election) and Kenya Railways Corporation v Okiya Omtatah Okoiti (2023 - about the SGR contract).
In both cases documents were filed in court that had been obtained by unclear methods – communication between IEBC members in the first case, and in the second various documents about the contract.
The court said that not to use the constitutional process for getting access to information (Art. 35) meant that the evidence must be excluded, citing Article 50(4).
I suggest that the court went much further than Article 50(4) indicates. The documents filed, however acquired, were official or at least produced in an official capacity, or by Kenya Railway Corporation. Government (and KRC) are not human beings and do not have human rights, whether we are talking about the right to privacy or to property, both of which are mentioned.
Secondly the court
did not clearly state whether the way of getting the documents made the trial
unfair.
The court said that to admit the documents would be “detrimental to the administration of justice”, again without explaining what this phrase means.
Comment
It is sad to see a judge wanting to reduce the scope of Article 50(4) and deprive people accused of certain offences (not found guilty yet) of a fair trial.
It is equally disappointing to see courts inflating Article 50(4) far beyond what it was intended for, without fully reasoning whether the Article applies, and in the process introducing a technicality despite being directed not to allow technicalities to get in the way of justice (Article 159(2)(d)).
They have achieved in one case letting a fellow judge charged with an offence off the hook.
The civil cases have involved citizens trying to hold government to account. We know government will conceal documents that incriminate them. A constitutional provision mainly intended to protect the citizen against abuse by public agencies, and ensure a fair trial, is being used to protect government against the citizen. Documents that have not been alleged to be fakes have been suppressed although they might have revealed serious wrongdoing.
I suggest these decisions may have been “detrimental to the administration of justice”.
Finally: we talk a lot about whistleblowers, and it is time this matter is debated properly, and perhaps law passed.
