The basic principle under the Constitution of Kenya, Article 31, is that every person has a right to privacy and to not have their person, home or property searched, their possessions seized, information relating to their family or private affairs unnecessarily required or revealed or the privacy of their communications infringed.
However, there are certain lawful circumstances under which this right to privacy can be limited as reflected in Article 24 of the Constitution. The limitation can only be effected or permitted through the passage of law and it must be such as is reasonable and justifiable in an open and democratic society. It must also take into account certain relevant factors such as the need to ensure that the enjoyment of rights and fundamental freedoms by any individual do not prejudice the rights and fundamental freedoms of others and the importance of the purpose of the limitation as well as its nature and extent.
Accordingly, for the police to violate a person’s privacy, they must act pursuant to an existing and valid law, they must prove that these special circumstances exist and they must strictly follow the procedures prescribed under those laws for their acts or actions to be upheld or protected.
CRIMINAL PROCEDURE CODE (CPC) Chapter 75 of the Laws of Kenya
Searches by warrant
In line with Article 31 and 24 of the Constitution, Section 118 of the CPC requires that where a police officer suspects or alleges that an offence has been committed upon, with or in respect of a thing or that something which is necessary for the conduct of an investigation into an offence, is in any place, the police officer must go before a court or magistrate and prove this on oath.
Where the police officer successfully proves the same, the court or a magistrate may by written warrant (called a search warrant) authorize the police officer or a person named in the search warrant to search the place (which shall be named or described in the warrant) for that thing and, if the thing be found, to seize it and take it before a court having jurisdiction, to be dealt with according to law.
This section is however qualified by section 60 of the National Police Service Act Number 11A of 2011 which provides that where the police officer believes that the delay likely to result from obtaining a search warrant will, in his opinion substantially prejudice the investigation, he must record in writing the grounds of his belief and such description as he may have of the thing for which search is to be made, and may thereafter without the warrant, enter the premises and search or cause search to be made for, and take possession of the thing he suspects to be there.
However, there is ambiguity in this section in as far as it does not clearly detail how this record is to be done beyond providing that it is to be in writing. For instance, should the record formally be put in writing at the police station? Or before a senior police officer? Or before a magistrate? And what form should the writing take? Should it be an official report to the investigating officer’s superior? Or is it sufficient if the officer records his grounds of belief on a random piece of paper using ball point pen before he enters the premises? Furthermore, should the record of these grounds be given to the person in occupation of the premises to be searched prior to the search?
The laws are silent on this matter.
Searches permitted without a warrant
There are, however, instances or circumstances where searches may be conducted without a warrant.
In section 22 of the CPC, if any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into or is within any place, the person residing in or being in charge of that place is required to allow the police or person acting under a warrant of arrest entry into the place and to afford all reasonable facilities for a search to take place.
But this also raises a question. If in the event of such a search for the person to be arrested, the police officer stumbles upon something or some information, materials or documents that allude to the commission of a crime or offence by the owner or occupier of the premises completely unrelated to his search for the person to be arrested, can the police officer seize such items? This situation would undoubtedly and inexorably bring us back to the requirement for a search warrant in respect to these other items.
In section 25, whenever a person is arrested under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, or without warrant and the person arrested cannot legally be admitted to bail, the police officer making the arrest may search that person and place in safe custody all articles, other than necessary wearing apparel, found upon him.
Under section 26 of the Act, the police have power to stop, detain and search any aircraft, vessels, vehicles or persons in or upon whom or which there is reason to suspect that anything stolen or unlawfully obtained may be found or there is reason to suspect has been used or employed in the commission or to facilitate the commission of an offence.
NATIONAL POLICE SERVICE ACT Number 11A of 2011
Searches permitted without a warrant
The National Police Service Act has similar provisions to those of the Criminal Procedure Code.
In section 57 of that Act, if a police officer has reasonable cause to believe that anything necessary to the investigation of an alleged offence is in any premises and that the delay caused by obtaining a warrant to enter and search those premises would be likely to imperil the success of the investigation or that any person in respect of whom a warrant of arrest is in force, or who is reasonably suspected of having committed a cognizable offence, is in any premises, the police officer may demand that the person residing in or in charge of such premises allow him free entry into the premises and afford him all reasonable facilities for a search of the premises.
If, after notification of his authority and purpose, entry cannot without unreasonable delay be obtained, the officer may enter such premises without warrant and conduct the search, and may, if necessary in order to effect entry, break open any outer or inner door or window or other part of such premises.
A police officer may also stop, search and detain any vehicle or vessel which the police officer has reasonable cause to suspect is being used in the commission of, or to facilitate the commission of, an offence.
A person who fails to obey a reasonable signal given by a police officer in uniform requiring the person to stop any vehicle or vessel commits an offence and is liable on conviction to imprisonment for a term not exceeding twelve months or to a fine not exceeding one hundred thousand shillings, or to both.
A police officer who seeks to conduct a search without a warrant, must:
(a) identify himself beforehand;
(b) record the action;
(c) record the items taken; and
(d) make a report regarding such exercise and make it available for the superior.
Further in section 60, such a police officer conducting a search without a warrant, must carry with him, and produce to the occupier of the premises on request by him, the officer’s certificate of appointment and if anything is seized, the police officer shall immediately make a record describing anything so seized, and without undue delay take or cause it to be taken before a magistrate within whose jurisdiction the thing was found, to be dealt with according to the law.
PRIVATE SECURITY REGULATION ACT
The Private Security Regulation Act is another act that carries limitations to the right of privacy under the Constitution and permits searches of the person without a search warrant.
Section 47 of the Act permits a private security service provider, a security guard or security officer manning a building or responsible for any property to search a person on entry or exit of that building or property without a warrant.
Under section 48, the private security service provider, security guard or officer may request a person at the entry of any premises or property, to identify themselves, register the time of entrance and exit of the person and retain temporarily the identification document of such person.
In conclusion, the fundamental premise of the law is that searches on a person or property can only be conducted pursuant to a search warrant. If no search warrant is provided, a person can challenge such a search or seizure of any items in the search, on the grounds of the violation of the fundamental and constitutional right to privacy and breach of law. The onus is on the police or person conducting the search to prove that the circumstances of the search fell under the limitations permitted under the particular legislation they sought to conduct the search under.
Most legislations adhere strictly to the Constitution and require the issuance of a search warrant prior to any search or seizure. The Courts have also upheld this requirement for a search warrant even under alleged national security grounds. The case of Standard Newspapers Limited & another v Attorney General & 4 others, Petition 113 of 2006 (2013) is quite famous and also very instructive in this regard. And now, even under Section 42 of the National Intelligence Service Act, covert operations aimed at neutralizing threats against national security are not excluded. Covert operations which may require any member of the NIS to obtain any information, material, record, document or thing and for that purpose to enter into any place or obtain access to anything, search for or remove, or return, examine, take extracts from, make copies of or record in any manner the information, material, record, documents or thing, monitor communication, install, maintain or remove anything or take all necessary action, within the law, to preserve national security, must, over and above having a written authorization to undertake such operation given by the Director-General himself, be accompanied by a warrant from the High Court.