Date Posted: 1/15/2013 9:55:06 AM
Posted By: KOROHS Membership Level: Silver Total Points: 840
The admissibility of illegally obtained evidence in Kenya has been a controversial issue for a long time .The dawn of an era of accountability set in on 27th August 2010 when His Excellency President Mwai Kibaki promulgated the much awaited Constitution which is committed to nurturing and protecting the well-being of all Kenyans. This constitution provides for the exclusion of illegally or improperly obtained evidence which is a powerful remedy for the violation of constitutional rights. In Kenya, the courts must ensure that individuals have an effective remedy when their rights are violated. This is vital to ensure their protection. This obligation has been implemented through the promulgation of the new constitution specifically through section 50(4) and the section dealing with fundamental rights and freedoms. Such a provision demonstrates the importance of guaranteeing and protecting all the fundamental human rights The ability to exclude illegally or improperly obtained evidence according to the test set out in section 50(4) has resulted in much litigation and has resulted in sometimes confusing and differing interpretations. This may be due to the various and differing theories put forward to explain the underlying basis for such a rule: providing compensation to victims of violation; deterring constitutional violations; and avoiding judicial condonation of police .It must be pellucid that the powers exercised by the courts are not unlimited, uncontrolled or unhindered; they must be exercised in a manner that does not contradict, override or destroy the various provisions of the Constitution. The powers must supplement and compliment the different and distinct provisions of the Constitution. (The author is a law student at kabarak university)
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