An Arrest Made Without Informing the Suspect of Their Article 49 Rights Is Unlawful on Its Face

What Article 49 Actually Requires

Article 49(1) of the Constitution of Kenya 2010 lists the rights of an arrested person. The provision states that an arrested person has the right, at the time of arrest, to be informed of the reason for the arrest and of the right to remain silent. The phrase "at the time of arrest" is not an aspiration. It is a constitutional command that operates at the moment of arrest itself.

Courts have consistently treated violations of Article 49 as procedural defects that can be remedied downstream: by a magistrate informing the accused of their rights at the first appearance, or by the accused's advocate filling the gap. That treatment is wrong, and it is wrong because it confuses two different things. The right to be informed of the reason for arrest and the right to remain silent are substantive rights that exist for a specific purpose: to allow the person being arrested to make an intelligent decision about whether to cooperate at the moment of arrest, before anything the person says can be recorded and used against them.

If the person is arrested without being informed of their right to remain silent and they then make statements to police, those statements were obtained in the absence of the constitutional condition that makes them admissible. Article 50(4) provides that evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair or would otherwise be detrimental to the administration of justice. A statement made by a person who did not know they had the right to remain silent satisfies both limbs of that test in most circumstances.

The Dominant Judicial Posture Is Too Lenient

The High Court in John Harun Mwau v Inspector General of Police and 3 Others, Petition No. 226 of 2014 acknowledged that article 49 rights are real and enforceable. But trial courts, particularly magistrates courts, continue to admit confessions and cautioned statements taken in circumstances where the accused was not informed of their rights at the time of arrest, treating those statements as admissible unless there is direct evidence of oppression.

The CPC test for admissibility of cautioned statements under section 28 of the Evidence Act asks whether the statement was made voluntarily. Voluntariness, as courts have developed the concept in Kenya, primarily concerns absence of threats, inducements, or promises. It does not comprehensively address whether the person making the statement understood that silence was an option. The constitutional framework is broader and more protective than the Evidence Act, and Article 2(4) requires that any law inconsistent with the Constitution is void. Reading section 28 of the Evidence Act as permitting admission of a statement taken in violation of Article 49 is constitutionally impermissible.

What "At the Time of Arrest" Means for Custody Statements

The problem is compounded when police take a statement in the cells before the accused is brought before a court. By then, the arrest has already happened. If article 49 rights were not given at the time of arrest, the damage is done. Giving a caution at the cell door three hours later does not restore the constitutional baseline that existed at the moment of arrest.

The appropriate remedy under Article 23(3)(c) is an order that any statement, identification, or piece of evidence obtained as a consequence of the unlawful arrest be excluded. Courts that decline to order this exclusion on the grounds that it would disadvantage the prosecution are balancing the prosecution's convenience against a constitutional right, and that is not a legitimate exercise of judicial discretion.

The Practical Standard Courts Should Apply

When an accused challenges the admissibility of a statement on Article 49 grounds, the prosecution bears the burden of demonstrating, on a balance of probabilities, that the accused was informed of their right to remain silent and of the reason for the arrest at the time of arrest. A general assertion by the arresting officer that "all rights were read" is insufficient without a contemporaneous record. Police should be required to produce the OB entry, the arrest record, or another reliable contemporaneous document showing compliance. Absent such evidence, the statement should be excluded.

This is not a procedural technicality. It is what the Constitution requires.