Towards The Realization Of The Privilege Against Selfincrimination: Challenges And Prospects

Abstract

Introduction Of the countable rights to a fair trial in the Kenyan Constitution, the privilege against selfincrimination stands out for being recent. In the United States, the privilege is a constitutionally granted human right, whereas the United Kingdom does not limit it to humans alone;1 for this reason, this paper will use the words “right” and “privilege” interchangeably to refer to the principle that no person should be compelled to incriminate himself or herself. In Kenya’s previous constitutional dispensation, the privilege was not mentioned explicitly in the Constitution. In fact, the closest the Repealed Constitution came to associate with the right was through the prohibition of adverse inferences from an accused person’s silence in court2 and the presumption of innocence.3 Of note is that the Repealed Constitution transferred these entitlements from the Independence Constitution that borrowed heavily from English precedence.4 Under statutory law, the Evidence Act5 provided immunity to witnesses against selfincriminating evidence obtained through legal compulsion in civil or criminal trials.6 Notably, neither the Repealed Constitution nor the related statutes protected a suspect at the pretrial stage. In general, Kenya’s previous dispensation lacked sufficient safeguards for the right against selfincrimination.