DCI sharing of suspects placard photos against section 55 of NPS Act Kenya

Ishmael Nyaribo, a Nairobi-based human rights lawyer

I feel bad for Juja MP George Koimburi. Not because he abducted himself or maybe not, but because everything around his case now has the image of him holding a placard made by the DCI artists.

And with this, the Kenyan criminal justice system is rapidly descending into a dangerous culture of mob lynching & public trials by spectacle- driven not by law, but by fantasy, likes, excitement, and populist social media freestyles as opposed to law and order.

It is now routine for suspects, many of them innocent & others never even charged or even before they are investigated properly be photographed at police stations, handed placards detailing alleged crimes, and have their images posted on social media platforms, particularly the official pages of the Directorate of Criminal Investigations (DCI).

MP Koimburi is not the first one, and there is a litany of Data Protection Law breaches of this type at the DCI library.

Let this be underscored clearly; this practice is illegal, unconstitutional, and immoral.

It is the worst form of abuse of social media power over influence against the suspects.

Section 55 of the National Police Service Act (201 1) Laws of Kenya sets out the lawful limits.

It provides that police officers may take fingerprints, photographs, and other identifying particulars of a suspect strictly for purposes of official identification.

It does not authorise the dissemination of such images to the public, press, or social media.

Where a person is taken into lawful custody, his or her finger impressions, palm or footprints, and photograph may be taken for identification and investigation (underlining is mine)… NPS Act, Sec. 55

The law is explicitly clear. Identification and investigation are professional and internal processes, not a theatre for public condemnation or amusement of the opponents.

The provision does not grant police officers a license to humiliate individuals who, at the time of arrest, are presumed innocent.

The Constitution: Dignity, Privacy, and Fair Trial. Kenya’s Constitution is explicit on this matter as well. Article 28 guarantees the right to the dignity of a person.

Article 31 guarantees the right to privacy, including the protection of personal data. Most importantly, Article 50(2)(a) enshrines the right to be presumed innocent until proven guilty.

What becomes of these sacred presumptions when an individual is arrested, paraded before cameras with a placard bearing accusations not yet proven, and their image uploaded to the DCI’s social media before charges are even framed and matters which the Courts may finally dismiss anyway? It would eventually most certainly be a mockery of the justice process.

What happens with these photos vis-à-vis the identification parade process when the accused will finally be produced in court and a witness has to identify the accused of an alleged crime? Is this not an easy way of using social media to compromise testimony in the intended case?

In 2018, the High Court Justice Onkwany issued orders against the Inspector General and the DCI, barring them from posting suspects’ photos on social media platforms before formal charging.

The Court found that such postings are unconstitutional, prejudicial, and potentially irreparable to the suspect’s right to a fair trial (See Shadrack’s case). I would add that the parading placards completely waters down the fair trial principle in terms of making it look like a confessionary statement, as the accused himself is the one carrying the placard with his name on it.

Despite this important ruling, the practice continues. I have, on several occasions, personally resisted the issue of photographs of my clients being taken for parading. I don’t find express provisions of the Constitution or Law allowing suspects to carry placards when taking photos. Moreover, while media persons can take such photos in court, it is also true that the accused persons who are innocent all the time until proven guilty might come out innocent & victorious after the photograph damage has been done.

Police officers, often emboldened by political pressure and digital cloud chasing, rush to capture and publish images of suspects before investigations are concluded, turning police stations into theatres and platforms for unlawful shaming. As counsel, I would continue to advise clients not to bow to carrying the placards meant for such humiliation. In any event, this can be done after the accused is proven guilty as charged.

Young lawyers must caution themselves against overzealous bribed police officers who might go rough on them to implement such unlawful activities. Media must also be careful not to perpetrate scandals and prejudice a fair trial.

Breaches under the Data Protection Act

With the enactment of the Data Protection Act (2019), Kenya made significant progress in safeguarding personal data. Under this law, personal images constitute sensitive personal data, and their collection, storage, and dissemination must be subject to consent, legitimate purpose, and data subject rights.

The police must appreciate that putting the image of a suspect out there constitutes abuse of his right to safety and subjects the suspect to ridicule & online mob justice under this law.

Section 25 of the Act outlines key principles:

“A data controller or data processor shall ensure that personal data is processed lawfully, fairly and in a transparent manner.

Does photographing a suspect without consent and posting the image online comply with these standards? Certainly not. If anything, the photographs are supposed to be kept as a record by the police department for the prevention of crime and the enforcement of law and order.

Anything else is unlawful. Such careless sharing of suspects’ photos can be a source of their insecurity, as they would be enraged in some instances.

Publication in exceptional circumstances

I recognise the importance of curbing crime by keeping a good record by the police.

There are situations of special attention as terrorism, human trafficking, femicide, murder, Rape, defilement cases or other serious crimes, including crimes of active kidnappings-where the public interest may justify the release of certain information & photos to prevent an imminent crime or perpetration of the same crimes. But these instances are rare, exceptional, and must meet strict legal thresholds.

In any event, police don’t seem to be as keen on them as the political cases where politicians are involved. What we are witnessing today is the routine abuse of public platforms to score public relations and create scandals & innuendos at times before charge sheets are drafted. And even where there is a chargesheet, there should be regard for human dignity at all levels of the case as the case may still end up being dismissed.

My take
In my considered view, the High Court must be invited again and again to determine that where a suspect has been paraded unlawfully and prematurely, the threshold for a fair trial has already been breached & compromised, and a just end cannot be arrived at. That in such instances, any proceedings arising thereafter risk being declared void ab initio. With a country where politics is appended to every criminal & commercial dealing and weaponisation takes centre stage, the High Court must come in to protect the constitutional safeguards intended by our mother document. The courts must not be seen to sanitise constitutional abuse by the police.

They must not become silent spectators to executive excesses disguised as police procedure. Courts are not conduits but the arbiters in the balanced scales of justice.

Every lawyer in Kenya, therefore, must resist this uncivil and unconstitutional gimmick by the police as part of our contributory duty to enlarge our democratic space as a country.

No client should be photographed without just cause, legal authority, or written consent by the owner and a clear undertaking by the police on how the photos are to be used.

No accused should be shamed for serving public entertainment. And no court should turn a blind eye to the abuse of process of this magnitude. If we must protect the law, then we must start by protecting the rights of the suspected, the silent, and the shamed.

Written by Ishmael Nyaribo, a Nairobi-based human rights lawyer. He can be reached at ishmael@inyaribo.com.