Supremacy of ‘State operated offenses’ in Kenya

Access to JusticeApril 6, 20170 CommentsKituo Cha Sheria

law opinion

Supremacy of ‘State operated offenses’ in Kenya

Chapter 4 of the Constitution of Kenya 2010 provides for a wide range of rights and fundamental freedoms to all citizens. However, most civilians have had to vulnerably dance to the tune of police officers who blatantly violate these rights and fundamental freedoms guaranteed to the unfortunately ignorant population.

These I call ‘state operated offenses’ which are not at all backed by any written laws and therefore not even offenses as such and are unfortunately applied on the public by the ignorant police as well. These are rogue police officers who do not have or even appear to have the slightest idea or comprehension and appreciation of the law of the law.

Various written laws including our very own Constitution promulgated in 2010 and which is the supreme law of the land, the National Police Service Act and even the Traffic Act give specific guidelines and provide procedures to be followed when carrying out of duties by police officers. It is rather sad that these individuals do not even appreciate the principles laws and guidelines that guide and regulate their duties as should be the case.

If you look at Sections 42 and 43 of the Traffic Act, you will clearly see that it provides for a maximum statutory penalty for offenses in relation to speed. For instance the fine for exceeding the speed limit should not at all exceed Kshs. 100, 000. But is that really the case on the ground?

Rule 54 A (1) of the Traffic Amendment Rules, 2009 covers only public service vehicles and taxis. These are regulations on the tinting of vehicle windows. However, the Inspector General of Police had gone ahead to give a directive that all vehicles with tint be removed. This was illegal and the courts clarified the position of the law when Justice Odunga George ruled that the order only applied to public service vehicles.

Is a police officer allowed to enter your vehicle?

Section 117 (3) of the traffic act provides that when a minor traffic offence is committed, the police officer should serve you or the owner of the vehicle with a police notification form charging you with having committed the offenses indicated in the said form. The said form can also be affixed prominently on the vehicle and the act further provides that the charged individual should appear before court within the next 48 hours.

However, this is not the case as many motorists’ right to privacy is violated by the same police officers who are supposed to protect this right whenever they enter their vehicles and literally force them to drive to the police stations over petty and minor traffic offences. This is total intimidation and absolute invasion of the right to privacy as provided for in article 31 of the constitution of Kenya 2010.

The man in uniform confisticated your licence?

One may ask themselves why would I not give him my licence? The simple reason is that the provisions of the Traffic Act do not permit that in all circumstances. section 79 (1) of the Traffic Act provides that ‘where a person is charged with an offence under this act for which the penalty may be or shall include disqualification for holding or obtaining a license, or suspension, cancellation or endorsement of a license, he shall, if he holds a driving license or provisional driving license, produce that license at the time of the hearing to the court by which the charge is to be heard.’

Section 79 (3) further provides that, ‘at the time when a person to whom subsection (1) applies is charged with the offence, a police officer in uniform may demand from that person any driving license or provisional driving license which he holds and if the license is delivered the police officer shall deliver it to the court by which the charge is to be heard.’

The effect of the above provision of the law is that when a police officer arrests you for an offense that does not warrant or whose penalty does not include disqualification or obtaining a license or suspension or cancellation or endorsement of a license, he has no right at all under the law to confiscate your driving license. Well, now you know.

Asked to step out of public service vehicles?

As a passenger in a public service, police officers are not allowed to ask you to step out of the vehicle in the event that the driver has committed an offense provided that the vehicle is roadworthy. The law only allows that the driver pays an instant fine on the spot. However, if the vehicle is carrying excess passengers or those who are not wearing seat belts, then the officers in uniform are within the law to ask you to step down immediately.

Did you pay illegal charges?

Section 106 (1) of the Traffic Act provides that where any vehicle is found in use on a road in contravention of the provisions of this act, or where any vehicle has been left on any road or other public place in such circumstances as to make it appear that such vehicle has been abandoned or should be removed to a place of safety, or where any vehicle has been left on a road in a position which causes or is likely to cause danger to other road users and the owner or driver cannot readily be found, it shall be lawful for any police officer or any inspector to take the vehicle or cause it to be taken to a police station or other place of safety by such method, route and under such conditions as he may consider necessary, having regard to all the circumstances of the case.’

The effect of the above provision is that in the event that you have been arrested by a police officer proceeds to tow your vehicle without your consent then you are not liable to pay towing fees. Many motorist fall victims of this ruthless vice which is perpetuated by the police officers as a means of extortion when they are available and can as well drive their own vehicles to the police station if and when required to do so.

Arrested in a bar?

When partaking of alcoholic drinks in a bar or somewhere in the outskirts of town, you should enjoy you drink in peace. In the event that your den of choice is run by an unlicensed operator, whenever the police storm the place, they are not supposed to arrest you but the owner of the place.

The above can be said to be the interpretation of the Alcoholic Drinks Control Act which provides in section 37 (1) that, ‘’if any person purchases any alcoholic drink from a licensee whose license does not cover the sale of that alcoholic drink for consumption on the premises, and drinks the alcoholic drink on the premises where it is sold, or in any premises adjoining or near to those premises, if belonging to the seller of the alcoholic drink or under his control or used by his permission, or on any highway adjoining or near any such premises, and it is proved to the court that the drinking of the alcoholic drink was with the privity or consent of the licensee who sold the alcoholic drink, the licensee commits an offence.’’ despite the above provision, members of the public have continuously been arrested by the police who extort money from them for partaking in unlicensed bars.

Kayere Ephraim

LAED- Kituo cha Sheria

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