CHAPTER FOUR –– THE BILL OF RIGHTS

Part 1—General Provisions relating to the Bill of Rights

28. Human dignity.

Every person has inherent dignity and the right to have that dignity respected and protected.

CHAPTER FOUR –– THE BILL OF RIGHTS

Part 1—General Provisions relating to the Bill of Rights

29. Freedom and security of the person

Every person has the right to freedom and security of the person, which includes the right not to be —

(a) deprived of freedom arbitrarily or without just cause ;
(b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58 ;

CHAPTER FOUR –– THE BILL OF RIGHTS

Part 1—General Provisions relating to the Bill of Rights

29. Freedom and security of the person

Every person has the right to freedom and security of the person, which includes the right not to be —

(c) subjected to any form of violence from either public or private sources ;
(d) subjected to torture in any manner, whether physical or psychological ;
(e) subjected to corporal punishment ; or
(f) treated or punished in a cruel, inhuman or degrading manner.

CHAPTER FOUR –– THE BILL OF RIGHTS

Part 2—Rights and fundamental freedoms

49. Rights of arrested persons.

(1) An arrested person has the right—

(a) to be informed promptly, in language that the person understands, of—
(i) the reason for the arrest ;
(ii) the right to remain silent ; and
(iii) the consequences of not remaining silent ;

(b) to remain silent ;
(c) to communicate with an advocate, and other persons whose assistance is necessary ;
(d) not to be compelled to make any confession or admission that could be used in evidence against the person ;
(e) to be held separately from persons who are serving a sentence ;

(f) to be brought before a court as soon as reasonably possible, but not later than––
(i) twenty-four hours after being arrested ; or
(ii) if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day ;

(g) at the first court appearance, to be charged or informed of the reason for the detention continuing, or to be released ; and
(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

(2) A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.

CHAPTER FOUR –– THE BILL OF RIGHTS

Part 2—Rights and fundamental freedoms

50. Fair hearing.

(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

(2) Every accused person has the right to a fair trial, which includes the right—

(a) to be presumed innocent until the contrary is proved ;
(b) to be informed of the charge, with sufficient detail to answer it ;
(c) to have adequate time and facilities to prepare a defence ;
(d) to a public trial before a court established under this Constitution ;
(e) to have the trial begin and conclude without unreasonable delay ;
(f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed ;
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly ;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly ;
(i) to remain silent, and not to testify during the proceedings ;
(j)to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence ;
(k) to adduce and challenge evidence ;
(l) to refuse to give self-incriminating evidence ;
(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial ;

(n) not to be convicted for an act or omission that at the time it was committed or omitted was not—
(i) an offence in Kenya ; or
(ii) a crime under international law ;

(o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted ;
(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing ; and
(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

CHAPTER FOUR –– THE BILL OF RIGHTS

Part 2—Rights and fundamental freedoms

50. Fair hearing.

(3) If this Article requires information to be given to a person, the information shall be given in language that the person understands.

CHAPTER FOUR –– THE BILL OF RIGHTS

Part 2—Rights and fundamental freedoms

51. Rights of persons detained, held in custody or imprisoned.

(2) A person who is detained or held in custody is entitled to petition for an order of habeas corpus.

Article 55
Rights of persons during an investigation
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

Article 63
Trial in the presence of the accused
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.

Article 66
Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

Article 67
Rights of the accused
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.