We are living in politically anxious times. And it is not just in Kenya but globally. First of all, the issue of pointing accusing fingers at our leaders and blaming them for our misfortunes doesn’t cut it anymore, because they are a reflection of who we are. We did, after all, put them there. We have an affinity for electing thugs to parliament and expecting miracles.
Because of these morally corrupt leaders we keep electing, power is being tested. Governments, now more than ever, keep pushing the boundaries of law as politicians reinterpret constitutional limits. In moments of civic tension – think protests, corruption scandals, elections, public dissent – it can begin to feel as though authority answers only to itself.
But in Kenya, the Constitution of 2010 still governs and in it, police power is not unlimited. It is defined and structured.
And during an arrest, that distinction becomes critical. Si story za jaba by the way, this is what the law actually says.
I. WHAT POLICE CAN LEGALLY DO
Police authority during arrest primarily derives from:
- The Constitution of Kenya (2010)
- The Criminal Procedure Code (Cap 75)
- The National Police Service Act
- The Evidence Act
1. Police May Arrest With a Warrant
A court may issue a warrant where there is sufficient evidence that a person has committed an offence. In such cases, police are empowered to execute that warrant. The officer must inform you that a warrant exists and show it to you if you request it.
Failure to disclose the existence of a warrant may render the arrest procedurally questionable.
2. Police May Arrest Without a Warrant (Section 29, Criminal Procedure Code)
This is where most confusion lies. Like every rule, there are exceptions, and the police may arrest without a warrant where:
- A person commits a cognizable offence in their presence
- There is reasonable suspicion that the person has committed a cognizable offence
- The person obstructs a police officer in execution of duty
- The person is found with property reasonably suspected to be stolen
- The person is reasonably believed to have escaped lawful custody
- There is credible information that a warrant has been issued
The key legal threshold is reasonable suspicion not rumor, not political speech, not personal disagreement. Courts have repeatedly held that suspicion must be based on objective facts.
3. Police May Use Reasonable Force
Under the National Police Service Act, officers may use force when necessary to effect an arrest, prevent escape and if there is need to protect themselves or others.
However, force must be proportionate and only if necessary. It must also be the least intrusive means available. Excessive force exposes the officer and the state to civil and criminal liability.
4. Police May Search an Arrested Person
Upon lawful arrest, police may search the person and their immediate possessions or items within reach. This is for officer safety and preservation of evidence. However:
- Searches must respect dignity (Article 28 of the Constitution)
- Strip searches must follow strict procedural safeguards
- Public humiliation is unlawful
5. Police May Detain But Only Temporarily
Police may detain a suspect for investigative purposes, but detention is not indefinite.
Article 49(1)(f) is clear that an arrested person must be brought before a court as soon as reasonably possible, but not later than 24 hours. This is not optional.
II. WHAT POLICE CANNOT DO
This is where constitutional protections become non-negotiable.
1. Police Cannot Arrest Arbitrarily
Article 29 of the Constitution protects every person from arbitrary arrest and arbitrary detention. Arrest must be grounded in law. Political disagreement is not a criminal offence.
2. Police Cannot Fail to Inform You of the Reason for Arrest
Article 49(1)(a):
You have the right to be informed promptly, in a language you understand, of the reason for your arrest and the charges against you. Failure to do so or silence from the officer is a constitutional violation.
3. Police Cannot Deny You the Right to Remain Silent
Article 49(1)(b):
You have the right to remain silent. And critically, they must inform you of the consequences of not remaining silent.
4. Police Cannot Compel Self Incrimination
Article 50(2)(l) reinforces that no accused person may be compelled to give self-incriminating evidence. Therefore, coerced confessions are inadmissible.
The Evidence Act further restricts admissibility of confessions not made before a magistrate or in compliance with statutory safeguards.
5. Police Cannot Deny Access to an Advocate
Article 49(1)(c): states clearly that an arrested person has the right to communicate with an advocate or other persons necessary for assistance.
Unjustified denial of legal access compromises the integrity of the entire process.
6. Police Cannot Subject You to Torture or Degrading Treatment
Article 29(d) prohibits:
- Torture
- Cruel, inhuman or degrading treatment
This prohibition is absolute, meaning there are no emergency exceptions.
7. Police Cannot Hold You Beyond 24 Hours Without Court Appearance
The 24 hour rule is a cornerstone of constitutional liberty. If the period expires outside court hours, presentation must occur on the next court day.
Extended detention without lawful authority amounts to unlawful imprisonment.
8. Police Cannot Mix You With Convicted Prisoners
Article 49(1)(d) states that an arrested person must be held separately from persons serving sentences. Presumption of innocence matters.
9. Police Cannot Deny Bail Without Compelling Reasons
Article 49(1)(h) is clear that release on bond or bail is a constitutional right unless there are compelling reasons.
The default position is liberty.
Why This Conversation Matters Now
In politically tense climates, citizens often assume that law bends to power. But constitutional democracy depends on defined limits.
The police are not the law. Thankfully, majorly due to our constitution, neither is the president, government or anyone else for that matter. They all operate under the law.
And every arrest is subject to judicial scrutiny. The Constitution of Kenya was written precisely for difficult seasons and not peaceful ones.
Once you understanding that, then you get to understand that knowing your rights is not rebellion, but civic literacy.
