Access to justice is a fundamental right that is guaranteed by the constitution of Kenya 2010. It therefore follows that, every person irrespective of their social or economic background, race, ethnicity, religious affiliation or sex is equal in the eyes of the law and must therefore receive full benefits of the law. As far as criminal proceedings go, the overarching theme is presumption of innocence and a follow up fair trial. A fair trial in itself cannot be guaranteed if the manner of arrest fails to meet the laid down procedures; if detention at the police station exceeds twenty-four (24) hours before a suspect is produced in court; or if the suspect is treated in an inhumane or degrading manner.
However, the aforementioned criminal trial proceedings’ safeguards are not always followed owing to incidences of police excesses, poor and dilapidated conditions of detention, unstructured delivery of legal aid despite presence of a national legal aid scheme and a guiding legislation just to mention but a few.
Its all not all doom and gloom however as Article 22 of the Constitution of Kenya gives rights to any one to institute proceedings at the High Court (Human rights and constitutional division) claiming a fundamental right or freedom has been denied, infringed or violated. In the recent past individual Police Officer have been compelled by the court to pay nominal damages for infringing on 24-hour detention rule.
In addition, it is incumbent upon Officers manning places of detention to ensure that but for detention, suspects retain all other rights and freedoms as espoused by chapter four (4) of the Constitution of Kenya, and that a fair trial cannot be ensured even if all procedures are scrupulously followed if conditions fall below the required standards.