The Law Society of Kenya was Tuesday pushing the release from custody of Nairobi Central Officer Commanding Station (OCS), Chief Inspector Dishen Ongoya who was arrested following his decision to consider charges and release 64 persons arrested during national stay-away.
LSK president Charles Kanjama said their advocates were also attending to numerous other cases involving peaceful protesters currently before the courts.
“An OCS is constitutionally and legally entitled to exercise discretion in the processing and release of arrested persons, subject to the law and the rights guaranteed under Article 49 of the Constitution.”
“Punitive action arising from the lawful exercise of such discretion risks sending a chilling message to police officers tasked with upholding constitutional safeguards within the criminal justice process,” he said.
Police headquarters had instructed to charge the suspects arrested with offences related to economic sabotage and the police commanders were directed to hand over the suspects to the DCI.
The government usually prefers serious charges, in some cases even terrorism, to scare protesters.
Lawyer Levi Munyeri said Angoya was taken to hospital and later back to the cells.
The matter is now being handled by senior police commanders as investigations continue, he said.
He spent his night in the cells at the Langata police station pending further action.
Police said close to 1,000 people were arrested in the countrywide protests.
In Nairobi, more than 200 people were arrested in the chaos.
At least four people were killed while more than 30 others sustained injuries during the unrest.
At least four vehicles were burnt, others damaged and property looted in the chaos.
The strike continued on Tuesday with public transport players withdrawing their services.
The power to release a suspect from police custody in Kenya is shared between police commanders and the courts, with the Constitution guaranteeing the right to bail unless there are compelling reasons to deny it.
Under the Criminal Procedure Code and the Constitution of Kenya, an Officer Commanding a Police Station (OCS) may release suspects from police cells in certain circumstances, particularly for minor or bailable offences.
Police officers are permitted to grant cash bail or police bond, with or without sureties, to ensure a suspect appears in court.
An OCS may also release a suspect where investigations reveal insufficient evidence to sustain a charge.
The law further allows police to free a suspect on bond where it is not practicable to present them before a court within 24 hours, provided the offence is not considered serious.
However, serious offences such as murder, treason, robbery with violence and attempted robbery with violence are generally handled by the courts, with suspects being arraigned before a magistrate or judge for directions on bail and detention.
Legal experts note that following the promulgation of the 2010 Constitution, all offences became technically bailable. Article 49 of the Constitution states that an arrested person has the right to be released on bond or bail on reasonable conditions unless there are compelling reasons to deny release.
This means even suspects facing capital offences may apply for bail before the courts, which determine each case based on its circumstances.
Magistrates’ courts routinely handle bail applications for most criminal cases, while the High Court has powers to review, reduce or vary bail terms imposed by subordinate courts or police officers.
The High Court also exercises supervisory jurisdiction over detention practices and may order the release of suspects whose constitutional rights have been violated through unlawful detention.
The constitutional requirement further compels police to present arrested persons before a court within 24 hours, or as soon as reasonably possible, failing which the detention may be challenged in court.
The legal framework seeks to balance the rights of suspects with public safety and the interests of justice.
