Do you know D.K.Basu?

So, do you know D.K.Basu? Do you think he is some freedom fighter? A social activist? Someone who won some award or got some recognition? If your answer is in affirmative to any of them, then you are wrong. Rather than thinking of D.K.Basu as a person look at it from another perspective. When I say another perspective I mean look at it as “D.K.Basu v/s State of West Bengal[1]”. This case is one of the landmark judgments wherein the Supreme Court of India laid down guidelines regarding the arrest of a person.

Now the question is – why should you know the guidelines? To understand why, let’s go back to the time before the aforementioned guidelines were laid down. There’s the Police obligated to protect all the citizens, and have to do so dutifully by following the procedures established by law. However, at many instances that was not the case.

In the past and even today, though minimal, the Police have been under the lens of the media, governments and public. Why? It’s because there have been, and still are, several incidences wherein they have committed gross human rights and fundamental violations. Such violations range from refusal to register F.I.R. to filing of false charges against the accused as well the complainant to being responsible for the custodial deaths. This has led to many innocent as well as guilty persons being subjected to injustice, and they were also stripped of their dignity and personal liberty, hence violating Art.21 of the Constitution of India[2].

Such incidences occurred due to lack of or no supervision over the police. But, that all changed on a large scale when the judgment of the D.K.Basu v/s State of West Bengal[3] case was laid down with respect to arrest, detention and interrogation.

Let’s look into these guidelines to understand how:

  1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
  2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
  3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
  4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
  5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
  6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names land particulars of the police officials in whose custody the arrestee is.
  7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The ‘Inspection Memo’ must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
  8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
  9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Area (Illaqa) Magistrate for his record.
  10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
  11. A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

These requirements are in addition to the following other requirements:

  • The right to be informed at the time of arrest of the offence for which the person is being arrested.
  • The right to be presented before a magistrate within 24 hours of the arrest.
  • The right not to be ill-treated or tortured during arrest or in custody.
  • Confessions made in police custody cannot be used as evidence against the accused.
  • A boy under 15 years of age and women cannot be called to the police station only for questioning.

So, next time if the police comes knocking on your door, ask them, “Do you know D.K.Basu?”

[1] (1997) 1 SCC 216

[2] Right to life and personal liberty

[3] (1997) 1 SCC 216


ABOUT THE AUTHOR

Headshot - Vidhya Kumarswamy

VIDHYA KUMARSWAMY

Vidhya Kumarswamy is a Law student pursuing B.B.A. LL.B. (Hons.), has a craving for knowledge and passionate about writing just as she’s a passionate foodie. Also, she’s a blogger and an Otaku.

The Kenyan Election

This is the first of a four part series on Kenya’s national elections. Focusing on key factors such as the electoral process in Kenya and an insight into Kenya’s past elections leading to the 2017 elections.

Introduction

On August 4, 2010, Kenyans compellingly voted to pass a new constitution following decades of clamour for a new constitutional bestowal. Kenya had, three years prior (2007), undergone an odious bout of post-election violence due to alleged election fraud. The crisis that was undoubtedly driven to its extremes by ethnocentrism, left the country reeling in social and economic shock, as it turned Kenya from one of Africa’s most stable and prosperous nations into one of the continent’s most chaotic nations at the time. The dominating factor advancing the passing of a new constitution was arguably the need for Kenyans to have a guarantee of electoral reforms. There was an evident need for a new constitutional, legal and administrative framework given the prevailing political and electoral environment in the country.

The Electoral System in Kenya

Elections in Kenya occur within the framework of a multi-party democracy and a presidential system. The current Kenyan constitution was introduced in 2010 and the first elections were held under it in 2013. The elections are organized by the Independent Electoral Boundaries Commission (IEBC).

The national elections in Kenya include presidential elections and parliamentary elections.

The 2010 constitution provides for a two round system for presidential elections, the president having been elected on a first-past-the-post basis. In order to be victorious in the first round, a candidate is required to receive at least 50% plus one vote nationally, as well as 25% of the votes in at least 24 counties. The constitution confers jurisdiction on the Supreme Court over presidential election petitions.

The country has 47 counties, each duly represented in Parliament. The parliament in Kenya is divided into The National Assembly and the senate.  The National Assembly has 350 members. 290 of these are elected at constituency level. Due to a long standing trend in poor representation of women in parliament, the Constitution provides that 47 seats in the National Assembly are to be reserved for women based on the number of counties; all elected by first-past-the-post voting. The remaining 13 seats include those of 12 members, nominated based on political parties; and a speaker.

The Senate has 68 seats. 47 of these seats are elected from single member constituencies based on the number of counties. The remaining number of the seats are acquired by appointment; 16 of these women based on party’s seat numbers, two persons representing the Kenyan youth, two persons representing disabled persons in Kenya and one elected speaker.

The promulgation of the new Constitution saw to the formation of the Independent Electoral Boundaries Commission (IEBC) as a regulatory agency responsible for conducting and/or supervising any referenda and elections to any elective body established by the Constitution. Its functions include the continuous registration of voters, management of the voter’s register, voter education, monitoring of stakeholders’ compliance with electoral legislation and the use of appropriate technology and approaches in the performance of its function.  The IEBC, therefore, holds the most important role with regards to Kenyan elections. Through the proper carrying out of its functions, it plays a critical role in averting pre and post-election conflict.


ABOUT THE AUTHOR

Tracy Odhiambo

TRACY ODHIAMBO

Tracy Odhiambo is a lawyer with an LL.B (Hons) From Strathmore University Law School. She is a budding freelance writer from Nairobi, Kenya. Her interests include legal writing, African literature and English fiction.

 

Peace, Tolerance, and Rule of Law to ensure Human Rights

It is evident that young people in Africa make up to 60% of the population and this indicates that there is a great need to harness on the involvement of young people in order to ensure that there exist freedom and respect for human rights within a society. However, there are about three major concepts that need to be focused on in order to ensure freedom, and these concepts of tolerance, peace as well as the effective application of the rule of law.

Moreover, it should be noted that freedom is not only limited to the listed concepts, but they serve as the most crucial concepts that need to be applied at all times in order to ensure that freedom for all citizens is not limited in any way or infringed. Peace is usually associated with the absence of war and to some extent, this is very true. However, peace is when there is no poverty and the people within the community equally enjoy the prosperity within their own community. However, so many people in Africa are victims of poverty hence challenging their freedom as citizens to pursue their desired goals and ambitions so as to provide for themselves and to the economy of the country, therefore in order to overcome such a challenge it is time for young people to be more involved in ensuring freedom for all.

One basic example will be that in my very own community, poverty has escalated due to various reasons such unemployment, cronyism, just to mention a few; which has affected many young people both in the urban and rural areas.  Therefore, in order to challenge such an issue and advance freedom in my community; the following aspects should be maintained so as to create a solution to this issue/ problem.

These aspects include training, research, conducting more campaigns or parades so as to advance the importance of maintaining peace, tolerance and the effective application of the rule of law. As discussed in the latter, peace is when all members of the community enjoy the benefits equally whereas tolerance is respecting the different opinions, ideas of others irrespective of those ideas being different from your own personal point of view and lastly the rule of law is when there is no bias in the application of law and when the law principles are equally applied to all members of the community despite the status of a person. In terms of training, young people should be trained on the essence of peace, tolerance and effective application of the rule of law, and such pieces of training should be conducted on regular basis in schools colleges or universities as well as including young people working with non-governmental organisations.

However, before this training can be conducted a proper, detailed research should be carried out so as to find out the different opinions of people within the community concerning such a problem and the exact number of people affected. The research will enable the researcher to be more informative and be able to share with others the possible ideas that could be the solutions of advancing freedom. The other aspect will be that of campaigns, campaigns usually educate others on a specific matter which is a concern within a community or raise awareness. Trained youth should conduct campaigns in schools and such campaigns should be informative, direct and reflect the possible goals of conducting such campaigns. Not only should these campaigns be informative but should edge more young people to be more involved, edge more young people to establish groups, which will vigorously fight for peace, tolerance within a community in order for all members to enjoy the prospects of freedom. Such can be done by holding more campaigns or parades in schools, which will teach students about peace and how poverty can be overcome when prosperity is equally shared and enjoyed by all citizens within a community.

Furthermore, local stakeholders should form partnerships with young or youth leaders that advocate for peace and tolerance. Therefore, with that, in conclusion, in order to advance freedom, more young people should be involved and the discussed concepts should be upheld at all times. Just as Nelson Mandela said, “To be free is not merely to cast off one’s chains but to live in a way that respects and enhances the freedom of others”.


ABOUT THE AUTHOR

Picture1

LESEGO GAETWESEPE

Lesego Gaetwesepe is a law graduate and she is intrinsically passionate about human rights, community building and empowering young people. She is a participant at the YALI Regional Leadership Center in Southern Africa and was also part of the #ageofconsent project. She was also part of a project facilitated by NACA (NATIONAL AIDS COORDINATING AGENCY). Ms Lesego is currently a volunteer at Gogontlejang Phaladi Pillar of Hope Project and also represents the organisation at the UNESCO Pan African Youth Network for building a Culture of Peace, and she is also taking up training as an ASFL (African Students for Liberty) Local Coordinator.

 

RTI – A powerful tool of Democratic India

Art. 19(1)(a) of the Constitution of India ensures that all the citizens of India shall have the right to freedom of speech and expression. It implies that every citizen has the right to express his/her views and opinions, openly and freely, without any fear or constraint, through any mode of his/her choice, even by way of silence. However, a wider interpretation of the same confers a powerful right on the citizens of India; a right which has time and again been helpful in holding the public authorities accountable and responsible for their actions – Right to information. The same has been conferred under Art. 21 of the Constitution, i.e., right to life and personal liberty, as citizens have the right to know in order to ensure a healthy democracy.

Though not expressed in Art. 19(1)(a) and Art. 21 of the Indian Constitution, the Judiciary has interpreted the right to have access to or receive information under the Fundamental Right of Freedom of Speech and Expression and Right to Life and Personal Liberty through various judgments, like  Union of India v. Association for Democratic Reforms and Another[1], S.P. Gupta v. Union of India[2], Dinesh Trivedi, M.P. & Ors. V. Union of India[3], People’s Union for Civil Liberties (PUCL) v. Union of India[4], Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of India[5], and many more.

But, it was in State of Uttar Pradesh v. Raj Narain[6] case that the Supreme Court, for the very first time, established that the right to know or receive information arises from the fundamental right of freedom of speech and expression.

To empower this interpreted right to know or receive information, to help in holding the public authorities accountable and to ensure transparency in the working of the public authorities, Right to Information Act, 2005 was enacted on the 15th Day of June, 2005 and came into force on the 12th Day of October, 2005, i.e., the 120th day of its enactment.

Sec. 3 of the Right to Information Act, 2005, confers on only the citizens of India the right to file the Right to Information (RTI) application in order to receive information. Here, ‘information’, as per the Act means to include any material in any form, like records, documents, memos, e-mails, opinions, advice, press releases, circulars, orders, etc., including the ones held in digital form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force[7]. And whatever information is received under this Act, we, as the citizens of India, have the right to inspect such records, documents and any material in any form and to take extracts, notes, certified copies and samples of such material including their digital formats[8].

For the purpose of providing information to persons requesting it, every public authority shall appoint a Public Information Officer and whenever information is asked for, the RTI application should be addressed to the concerned or appropriate Public Information Officer of the public authority from whom the information is sought[9].

But, just as there are restrictions on the fundamental right of freedom of speech and expression under Art. 19(2) of the Indian Constitution, there are restrictions on the kinds of information one can ask under the Right to Information Act, 2005. Sec. 8 of the Act exempts certain kinds of information from being asked in the RTI applications, which are related to the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, which is expressly forbidden to be published as its publication may lead to contempt of court, which would cause breach of privilege of the Parliament or the State Legislature, etc. However, such information may be disclosed if it is for the protection of the larger interests of the people; after all salus populi suprema lex esto[10].

The exemptions are not only with respect to kinds of information but also with respect to certain public authorities like the security and intelligence organisations – Intelligence Bureau, Directorate of Revenue Intelligence, Assam Rifles, etc. – as mentioned under the Second Schedule of the Act. But, if the information sought is relating to allegations of corruption and human rights violation, they shall be disclosed after the approval of the Central Information Commission [established under Sec. 12(1) of the Act], within a period of 45 days from the date of receipt of such request.

Every response to any RTI application shall be given within thirty days of the receipt of the request[11]. In case it is relating to the matter of a person’s life and liberty, the information shall be given within 48 hours of its receipt[12]. If the response to the RTI application is not received within the specified time, an appeal can be filed to the appellate authority appointed for the same in the concerned public authority[13].

By now, we know that Right to Information Act, 2005 is a powerful tool in the hands of the Indian citizens, which many citizens are unaware of even after over a decade of its enactment. RTI empowers the ordinary, common man to question the authority, irrespective of his or her social, economic or political background, and hold them accountable for their actions. Without the Right to Information Act, 2005, the right to access information under Art. 19(1)(a) and Art. 21 of the Indian Constitution would have remained incomplete because RTI is an instrument used to regulate this right.

[1] (2002) 5 SCC 294

[2] AIR 1982 SC 149

[3] (1997) 4 SCC 306

[4] AIR[2003] SC 2363

[5] 1995 AIR 1236, 1995 SCC (2)161

[6] A.I.R. 1975 S.C. 865

[7] Sec. 2(f) of the Right to Information Act, 2005

[8] Sec. 2(j) of the Right to Information Act, 2005

[9] Sec. 5 of the Right to Information Act, 2005

[10] Welfare of the people shall be the supreme law

[11] Sec. 7(1) of the Right to Information Act, 2005

[12] Sec. 7(1) of the Right to Information Act, 2005

[13] Sec. 19 of the Right to Information Act, 2005


ABOUT THE AUTHOR

Headshot - Vidhya Kumarswamy

VIDHYA KUMARSWAMY

Vidhya Kumarswamy is a Law student pursuing B.B.A. LL.B. (Hons.), has a craving for knowledge and passionate about writing just as she’s a passionate foodie. Also, she’s a blogger and an Otaku.

Human Trafficking in Kenya

Human trafficking has been defined as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.[1]

Human trafficking is squarely located within the larger context of workers’ rights, immigrant rights, and human rights.[2] According to the UNICEF Innocenti Insight, Kenya is a primary source of origin, transit, and destination for human trafficking.[3] This may be indicative of a general lack of concern by the government to deal with the atrocity. This atrocity does not take place in social and political isolation. The government is tasked with the responsibility to ensure that this atrocity is nipped in the bud. When the social and political circumstances allow for and support the forceful theft of human labour, there is a need for deconstruction: a deconstruction of the laws that create this environment or an improvement of the same. In Kenya, there exist rampant and unfortunately severely overlooked situations; where minors from poverty stricken families are taken across county and country borders to work as domestic workers and do other exploitative odd jobs for little pay.[4]

Furthermore, there have also been cases where Kenyan citizens have been abducted and taken to foreign countries[5] and have faced torture in foreign countries. In the case of Beatrice Akomo Ongito v Republic[6] a Kenyan defendant was charged with transnational commercial sexual exploitation. The complainant was said to have been transported to Tanzania and locked in a deserted house where she was beaten and sexually abused.[7] Other reported cases include cases of trafficking for sexual exploitation.[8] These cases mostly involve adults taking advantage of minors. An example of this is F.M.N v Republic.[9] In this case, the defendant was charged with trafficking for sexual exploitation contrary to section 18(a) of the Sexual Offences Act.[10]

Though Kenya is said to have shown marked improvement in its anti-trafficking efforts, there has been no indication by way of evidence of such effort. In fact, cases dealing with this heinous atrocity have shown a lack of coordination and oversight. This is arguably promotive of a conducive environment for trafficking.

The main law that currently deals with human trafficking is the Counter Trafficking in Persons Act that came into force in 2012. Prior to this, in order to address claims of perpetration of crimes of this nature, other legislations were relied upon. Sections of the Penal Code,[11] Sexual Offences Act[12] and Children´s Act[13] partially addressed the issue. The Counter Trafficking in Persons Act, 2010, In Article 3(5) accords hefty penalties on persons found guilty of human trafficking. The perpetrator is liable to imprisonment for a term not less than 30years or to a fine of not less than Ksh.30 million or both and upon a subsequent conviction, to imprisonment for life. The Sexual Offenses Act also amerces harsh penalties with regards to trafficking in persons. However, despite there being such harsh penalties upon prosecution and conviction, the legislations, seem to have a few loopholes that allow for trafficking in persons. An example is in chapter 3 of the Constitution which provides that a child of under eight years and of an unknown nationality found in Kenyan is to be considered a citizen. This has arguably provided a leeway for children being smuggled into the country at this young age.[14]

With regard to trafficking in persons, Kenya needs to implement fully the current legislations put in place to deal with this issue. The legislations also need to properly address the areas of prevention, protection and prosecution. While the current legislations are indicative of efforts to prevent human trafficking, an issue arises in implementation. There is laxity among stakeholders responsible for implementing the legislations and prosecuting the crimes.

[1]  United Nations, Protocol to Prevent, Suppress and Punish Trafficking in persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, Art. III (2000).

[2] Wolken C, ‘Feminist Legal Theory And Human Trafficking In The United States: Towards A New Framework’ 409.

[3] UNICEF, Innocenti Insight; Trafficking in Human Beings, especially Women and Children in Africa, Pg. 10-12.

[4]Kerry J, ‘Trafficking in Persons Report’, June 2014.

[5] Mwangi G, The Nation, Kenya, Aug. 29, 2004, www.religionnewsblog.com/8585/deya-babies-are-victims-of-trafficking.

[6] Beatrice Akomo Ongito v Republic (Criminal Appeal No.274 Of 2012)

[7] Beatrice Akomo Ongito v Republic [2013] eKLR.

[8]Zachary Ochieng, News Africa, August 2002, www.newsfromafrica.org/newsfromafrica/articles/art_854.html .

[9] F.M.N v Republic (Criminal appeal case 321 of 2007) eKLR.

[10] F.M.N v Republic [2009] eKLR.

[11] Chapter XXV, Penal Code 81 of 1948, Cap 63.

[12] Sexual Offences Act, 2006, Cap 62 a.

[13] The Children´s Act of 2001, Cap 141.

[14] M Kenan and O Nick, ‘Child traffickers using church’, 1 November 2011 http://www.standardmedia.co.ke/


ABOUT THE AUTHOR

Tracy Odhiambo

TRACY ODHIAMBO

Tracy Odhiambo is a lawyer with an LL.B (Hons) From Strathmore University Law School. She is a budding freelance writer from Nairobi, Kenya. Her interests include legal writing, African literature and English fiction.

 

Age of Consent in India

Age of consent has long been a controversial issue in India. Coming to a consensus as to what the age of consent should be has proved to be a challenging job. The age of consent has never been stable, it’s always fluctuating as the public morality changes and ideas about gender and sexuality take different forms. The Indian Penal Code, 1860 prior to the Criminal Law Amendment, 2013 stated that sexual intercourse with a woman below the age of 16 years was to be considered ‘rape’ regardless of her consent being present or not.[1] In 2012, the much talked about POCSO Act was passed and among much controversy the age of consent was raised from 16 years to 18 years. The Criminal Law (Amendment) Act followed in 2013 which also raised the age of consent from 16 years to 18 years.

One of the key reasons why the decision of increasing the age of consent from 16 years to 18 years was mired in controversy was because the critics of increasing the age of consent contended that because this Act criminalizes indulging into sexual acts with a person below 18 years of age, regardless of consent, there is a high likelihood of enforcement agencies e.g. police exploiting their powers or of parents misusing the law to regulate their children’s sexual behavior. [2] This poses a serious challenge as there is a plethora of cases where false complaints, for example, of kidnapping have been filed against the accused. With each new legislation passed, there are always unintended consequences attached. In case of POCSO, as mentioned earlier, there are a lot of instances where false complaints are filed by parents against the lover of their minor child or by the minor herself/himself out of vengeance or pressure by their family.

Another shortcoming in not taking into account the consent of the minor is that outlawing the various kind of consensual sexual behavior that children indulge into completely discards their independence and fundamental rights.[3] One of the main reasons why the issue of age of consent is so hotly debated is because it criminalizes sexual conduct of adolescents which is deemed normal behavior at that age. The age of consent line is at the end of the day an artificially drawn line. There is no hard and fast basis on which this line has been drawn at eighteen. There are several factors based on which the age of consent is determined; these include relying on the fact of when a person becomes “mature”. This, quite clearly, is a hugely vague logic to apply as it’s extremely hard to pinpoint when a person attains sexual maturity to be able to enter into consenting sexual relationships.

To curb these malpractice of false cases being lodged against the innocent and to allow minors, especially, the ones who can count as young adults to express their sexuality freely the law needs to be amended. More importantly, there needs to be space for adjudicators to apply proper logic and reasoning in a given or specific case depending on the truthfulness of the allegation. A relaxing approach needs to be taken by judges wherein they hold the accused guilty or acquit them based on the facts and circumstances of the case. It needs to ensure that nobody gets blind advantage due to the wording of these provisions.

The main object of POCSO Act dictates that there must be total prohibition upon teenagers or adolescents from having any kind of sexual relationship but this too has been critiqued on the grounds that if that interpretation is allowed, it would surmount to the persons below 18 being treated as “state property”. It is almost equal to saying that persons below 18 years aren’t citizens as they can’t exercise all the rights as citizens above 18 years of age can. This is in no way a reasonable classification. Therefore, it is of utmost importance, that the age of consent line be blurred for good. This will drastically reduce false complaint cases filed against innocent persons and undoubtedly guarantee that minors who can be classified as young adults get to exercise their rights such as willingly entering into consensual relationships fearlessly.

[1] Section 375, Indian Penal Code , 1890

[2] http://www.prsindia.org/theprsblog/?p=1680

[3] http://www.tarshi.net/inplainspeak/voices-love-and-sex-in-the-time-of-the-pocso-act-2012/


ABOUT THE AUTHOR

Prithvika Photo

PRITHVIKA REDDY

Prithvika Reddy, an aspiring bureaucrat, is a final-year law student from O.P Jindal Global University, Sonipat. Her subjects of interest are Constitutional Law and Human Rights. Also, she’s a History Enthusiast. She loves keeping herself updated with the current news.