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NCJ Number: 52092 Find in a Library
Title: DETENTION WITHOUT TRIAL IN KENYA
Journal: GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW  Volume:8  Issue:2  Dated:(SPRING 1978)  Pages:441-461
Author(s): K CONBOY
Corporate Author: University of Georgia
United States of America
Date Published: 1978
Page Count: 21
Sponsoring Agency: University of Georgia
Athens, GA 30601
Format: Article
Language: English
Country: United States of America
Annotation: THE WORKINGS OF KENYA'S DETENTION PROVISIONS AND THE USE OF DETENTION WITHOUT TRIAL WITHIN THE POLITICAL CONTEXT SINCE 1963 ARE DESCRIBED. THE DETENTION PROVISIONS ARE CONSIDERED IN LIGHT OF KENYA'S INTERNATIONAL OBLIGATIONS.
Abstract: WHEN KENYA BECAME INDEPENDENT IN 1963, THE COLONIAL GOVERNMENT'S EMERGENCY DETENTION POWERS WERE REPEALED BUT PROVISIONS OF THE NEW CONSTITUTION AND OF THE SECURITY ACT JUSTIFY GOVERNMENT INFRINGEMENT ON CIVIL RIGHTS IN EMERGENCY SITUATIONS INVOLVING INTERNAL POLITICAL STRIFE, EXTERNAL AGGRESSION, PROBLEMS RELATED TO THE ECONOMIC ORDER, AND NATURAL DISASTERS. THE SECURITY ACT HAS BEEN USED TO IMPRISON POLITICAL DISSENTERS. IN 1967, EIGHT TRADE UNION LEADERS AND OFFICIALS OF THE UNION PARTY WERE DETAINED WITHOUT TRIAL, AND IN 1975 TWO MEMBERS OF PARLIAMENT WHO CRITICIZED A GOVERNMENT COVER-UP WERE DETAINED. KENYA ENTERED INTO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS IN 1976 WHICH MANDATES THAT NO ONE SHALL BE SUBJECTED TO ARBITRARY ARREST OR DETENTION OR BE DEPRIVED OF LIBERTY EXCEPT ON SUCH GROUNDS, AND IN ACCORDANCE WITH, PROCEDURES ESTABLISHED BY MUNICIPAL LAW. IT IS MAINTAINED THAT KENYA VIOLATES THE COVENANT WHICH, TAKEN AS A WHOLE, PRESUPPOSES AND REQUIRES THAT PERSONS DEPRIVED OF THEIR LIBERTY EITHER BE CHARGED AND TRIED OR RELEASED, THAT THE EMERGENCY SITUATION NECESSITATING DETENTION BE PUBLICLY PROCLAIMED BY THE GOVERNMENT, AND THAT THE DETENTION ORDERS BEAR SOME RELATION TO THE EXIGENCIES OF THE EMERGENCY SITUATION. THE DETAINEES IN KENYA ARE RARELY HELD FOR MORE THAN 5 YEARS AND THERE HAVE BEEN NO ALLEGATIONS OF TORTURE OR PHYSICAL COERCION OF THESE PERSONS. THESE AND OTHER FACTORS INDICATE THAT KENYA FOLLOWS THE COVENANT MORE CLOSELY THEN NEIGHBORING COUNTRIES SUCH AS SOMALIA AND TANZANIA. IT IS SUGGESTED THAT THE EXECUTIVE POWERS UNDER THE SECURITY ACT BE ABOLISHED AND A TRIBUNAL BE SET UP TO REVIEW DETENTION CASES, THAT PROCEDURAL SAFEGUARDS FOR DETAINEES BE ADDED TO THE PRESENT LAW, AND THAT THE PRESIDENTIAL DISCRETION TO ISSUE AN ORDER BRINGING THE SECURITY ACT INTO EFFECT BE CURTAILED. THE SECURITY ACT COULD BE REPEALED ALTOGETHER AND REPLACED BY A CONSTITUTIONAL AMENDMENT. (DAG)
Index Term(s): Detention; Emergency detention; Incarceration; Kenya; Laws and Statutes; Pretrial procedures
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