Wednesday, March 09, 2016

Privacy

Privacy is not well understood by policemen. Article 31 of the Constitution,
Every person has the right to privacy, which includes the right not to have—
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.
These are fundamental considerations that the National Police Service and the Director of Public Prosecutions must consider in the light of the increasing cases of violations of Article 31. Importantly too, Kenyans must be educated about their privacy rights, and what is and what isn't acceptable in that regard.

Take the more common case of the unlawful infringement of this right: the invasion by policemen of motorists' vehicles in the guise of enforcing a provision of the Traffic Act. Where a policeman accuses a motorist of committing a traffic offence, if it is the more common minor traffic offences such as "obstruction", "driving without a license", "obscuring the registration number plate", etc, the accused traffic offender has the option of admitting his guilt and paying a fine. If he challenges the accusation, he shall have his day in court.

The mechanisms of paying the fine or challenging the accusation are all founded on a document known as a Notice To Appear, which sets out the alleged offence, the name of the offender, the registration details of the vehicle driven during the commission of the alleged offence, the prescribed penalty (usually a fine), the police station at which the policeman issuing the notice is based, and the court in which the matter will be prosecuted. In either case, there is absolutely no requirement for the motorist to accompany the policeman to the police station and, therefore, there is no requirement for the policeman to ride in ones vehicle to the police station.

Despite all this, daily we are regaled by amusing stories of policemen violating our right to privacy simply because they have accused us of minor traffic offences. They are aided and abetted by the Director of Public Prosecutions who should be alive to the violations taking place even as his officers draw up charge sheets. The only way our right to privacy can be limited is with the authority of the court when they issue warrants. Unless you can persuade me that every traffic policeman has a general warrant to enter each vehicle driven by a suspected traffic offender, I believe that the police are acting with criminal disregard for our rights.

Before you scoff and go, "Stating the bleedin' obvious!" consider this: it is important to describe the offence in precise terms so that we do not generalise our grievances. When the police believe that your car is not a private place, then they can expand the list of non-private personal spaces to include your password-protected mobiles, homes, even your bedrooms, bathrooms or toilets. We must draw the line; I believe it is important to have the line drawn at the privacy of our motor vehicles. If we don't, every time we are detained by the police, they will feel like they have the authority to demand access to our mobile phones or the contents of our wallets. You definitely don't that.

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