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 In fact, the closest the Repealed Constitution came to associate with the right was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presumption of innocence.3 Of note is that the Repealed Constitution transferred these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neither the Repealed Constitution nor the related statutes protected a suspect at the pretrial stage.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.
Publisher
University of Nairobi
Rights
Attribution-NonCommercial-NoDerivs 3.0 United StatesUsage Rights
http://creativecommons.org/licenses/by-nc-nd/3.0/us/Collections
- School of Law [291]
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