EXPLAINER: Due process in police custody transfers

Arrest illustration / FILE

The death of Albert Ojwang while in police custody at Nairobi Central Police Station has sparked widespread reactions from Kenyans, with his family and loved ones demanding answers about the circumstances leading to his demise.

Ojwang had gone to Homa Bay to visit his family where he was initially arrested in Kakot, before being transferred to Nairobi.

His sudden death while in custody has raised serious concerns, particularly about whether due process was followed during his arrest and subsequent transfer.

Many are now questioning whether the procedures adhered to the rule of law, as pressure mounts on the authorities to provide clarity and accountability.

Legally, any arrest or transfer of police custody must comply with the Constitution and the Criminal Procedure Code.

A suspect should be informed of the reason for their arrest by the officers after they have identified themselves.

They should then be presented before a court within 24 hours and treated humanely while in custody.

The Star spoke to advocate Lempaa Suyianka, who provided some legal insight on the procedures that should be followed in such an event.

According to the advocate, a suspect who is arrested is required to be informed promptly of the reason for their arrest.

In this case, the suspect should be formally booked in a local police station where the arrest will be recorded.

“There is what we call geographical jurisdiction, and the geographical jurisdiction, in this case, of the alleged crime is in Migori,” Lempaa said.

He notes that Article 49 of the Constitution provides clear guidelines that police officers must follow when effecting an arrest.

These include informing the arrested person of the reason for the arrest in a language they understand, presenting them before a court within 24 hours, and ensuring their right to communicate with an advocate or other persons.

The lawyer observes that in the case of Albert Ojwang, the offence he was allegedly accused of was a misdemeanor, which did not justify a transfer to another police jurisdiction.

“You can be transported in the case of a felony from anywhere. In the case of Ojwang, a felony was not committed as this was simply a matter of sending a message to someone,” the lawyer explains.

He emphasises that the nature of the alleged offence did not warrant an inter-county transfer without court approval.

He explains that even in cases involving felonies, the suspect should first be arraigned in a court within the area of arrest.

If there are compelling reasons to transfer the suspect to another location, the police are required to make a formal application before the court, clearly stating the intention and reasons for the transfer.

If the case is compelling enough, a court directive may be issued to authorise the transfer of police custody.

However, before the transfer is carried out, the officers are required to formally notify the receiving police station in advance as a procedural and security requirement.

This ensures proper coordination between jurisdictions and maintains a clear record of the suspect’s movement, enhancing accountability and the suspect’s rights.