ARBITRARY ARREST AND ILLEGAL DETENTION BY THE POLICE OF
ALLEGED TERROR SUSPECTS
The Kenya National Commission on Human Rights (KNCHR) together with the
Kenya Human Rights Network strongly condemn the arbitrary arrest and
ongoing illegal detention of over 70 Kenyans and non-Kenyans alleged to be
The Commission has received complaints concerning a wave of arbitrary arrests
and prolonged incarceration without charge of suspects by units of the Kenya
Police over the last one month. The suspects are being held incommunicado
and have been in custody beyond the maximum period laid down by the law.
Whereas the Commission and the Network share the concern of the police, and
indeed every Kenyan, on the threats posed by terrorism, they are also anxious
that any investigations of perceived threats be carried out in accordance with
the law and in a manner that does not compromise the fundamental rights of
Pursuant to its lawful mandate to investigate the violation of any human
right1, the Commission has made numerous attempts to visit various police
stations to get a full picture of the situation but has been met by recalcitrant
and obstructionist police officers who have denied it access citing “orders from
above”. This is despite the fact that the KNCHR Act empowers the Commission
KNCHR Act Section 16 (1) (a)
to have access to places of detention or related facilities with a view to
assessing conditions under which inmates are held.2
The Kenya National Commission on Human Rights (KNCHR) would like to make
the following observations:
1. The Commission has confirmed that there are scores of people being
held without charge as terror suspects in various Police Stations in
Nairobi and its environs. The Commission has made numerous efforts to
gain access to the suspects and has made representations to relevant
authorities on the importance of upholding the rule of law to no avail.
2. The Commission has confirmed that in some Police Stations the suspects
are being held incommunicado having been denied contact with
relatives, legal representatives or human rights organisations.
3. Relatives and friends of alleged suspects are being rounded up and
locked in police cells on the pretext of assisting the police with
investigations, having been apparently declared guilty by association.
4. As part of the operation, the police are holding young children in their
cells along with their mothers. This is a gross violation of the rights of
these children contrary to the Children’s Act and international human
rights norms. At the Inland Depot Police Station, for instance, a four
year old girl, Hafswa Swaleh Ali, is being illegally detained together
with her mother.
5. The Commission has information that some of the suspects have been
irregularly deported to other countries, notably Somalia. The
deportation of Somali nationals after fleeing their troubled country to
KNCHR Act, Section 16 (1) (b)
seek refugee status in Kenya is a violation of the Convention Relating to
the Status of Refugees, to which Kenya is a signatory.
6. The majority of the suspects being unlawfully detained are Muslims. This
has raised legitimate concerns that the police are exercising illegal
profiling of people on the basis of their religion and thus violating their
constitutional right to non-discrimination.
7. Without taking a position as to the guilt or innocence of the suspects
being held, which is a matter for the police and the courts, the
Commission is concerned by the illegal detention of these suspects. The
law provides that a suspect can be held for a maximum of 48 hours or, in
the case of capital offences, 14 days before being charged in court or
released. All the suspects in custody have been held without charge
beyond the stipulated period. Some of them have been in custody since
December and early January.
8. The actions of the police have caused the Commission to suspect that
the Government is applying the controversial Anti-Terrorism Bill by the
back door. This Bill has never been passed into law and was shelved
precisely because of its controversial provisions that would have
negatively impacted the fundamental rights of Kenyans.
In light of the foregoing, the Kenyan National Commission on Human Rights,
pursuant to its mandate to protect and promote the human rights of all
persons, and the Kenya Human Rights Network demand the following:
1. That the police do release or charge in court forthwith all the suspects
that are being illegally detained having been held longer than stipulated
by the law.
2. That children held with their mothers be released forthwith even where
the police might have lawful cause to continue holding the mothers.
3. That the police respect and uphold the constitutional rights of any
suspects they might continue to lawfully detain, including the right of
access by families and legal representatives. Holding of suspects
incommunicado amounts to cruel and inhuman treatment.
4. That the police desist from obstructing the Commission in the exercise
of its lawful functions and in particular that they grant KNCHR access to
their detention facilities as stipulated by the law.
5. That repatriation of suspects be stopped unless it is done in accordance
with the law and Kenya’s international obligations.
6. That the Kenya Government desists from the unlawful practice of
widespread incarceration and arbitrary detention of people which
threatens to turn Nairobi into another Guantanamo Bay where the
cherished presumption of innocent until proved guilty has been blatantly
sacrificed on the altar of the so-called war against terror.
The Kenya National Commission on Human Rights and the Kenya Human Rights
Network would like to reiterate that they recognize the national interest in
defending Kenya against any credible threats of terrorism. They would however
like to reiterate that all efforts to confront this threat must be carried out in a
just and accountable manner and that it does not compromise the rule of law
and fundamental rights and freedoms.
Dated this 31st Day of January 2007