AN ASSESSMENT ON THE EFFICACY OF KENYAN CONSTITUTION 2010 IN

MITIGATING THE INJUSTICES AGAINST ACCUSED PERSONS IN KENYA

NOEL KAMAU GICHARU-BLAW 2018/37460

BLAW4201: DISSERTATION PROPOSAL

A RESEARCH PROPOSAL SUBMITTED IN PARTIAL FULLFILLMENT OF THE

REQUIREMENTS FOR AWARD OF BACHELOR OF LAWS DEGREE (LLB) OF

MOUNT KENYA UNIVERSITY.

JUNE 2022

ii
 DECLARATION AND APPROVAL.

Declaration by student.

I declare that this research proposal is my original work, and as far as I am aware, it has not been

presented for the award of a degree in any other university or for any other award.

Signature……………………………..……. Date………………………………….

Noel K. Gicharu.

BLAW/2018/37460

Approval by the supervisor.

I confirm that the work reported in this proposal was carried out by the student under my

facilitation.

Signature…………………………………… Date……………………………………

Dr Ruth Thinguri

Mount Kenya University

iii
 DEDICATION.

My first gratitude goes to God Almighty for his strength during the entire period that I have

taken to do this work. I would also like to thank my family and friends, who have been part of

this Journey.

iv
 ACKNOWLEDGEMENT

The preparation of this research dissertation called for cooperation from several key persons.

First and foremost, gratitude goes to my supervisor Mr Fred Moyomba who devoted his time,

patience and guidance throughout the preparation of this proposal work.. Many thanks and

gratitude also go to Dr. Ruth Thinguri for her patience, time and efforts to ensure that the

requirements needed in the drafting of this research proposal were well grasped and understood

and more so her patience was well appreciated and none of this would have been possible

without her guidance.

v
 ABSTRACT.

The right to seek justice is a fundamental element of the rule of law. People are unable to have
their voices heard, exercise their rights, fight prejudice, or hold decision-makers responsible
without access to justice. The High-Level Meeting on the Rule of Laws 1 Declaration highlights
everyone’s right to equal access to justice, including members of vulnerable groups, and
reaffirms Member States& commitment to providing fair, transparent, effective, non-
discriminatory, and accountable services that promote access to justice for all. In most criminal
proceedings, there are critical stages that an accused individual who is not schooled in law may
not completely appreciate. To ensure that an accused person receives justice during a criminal
trial, several processes must be implemented. In attempt to protect such rights that the accused
may suffer infringement, the constitution of Kenya 2010 provides that the state must ensure that
everyone has access to justice, and if a price is required, it must be reasonable and not inhibit
access to justice. This research therefore is to assess where the attempts of the state to protect
such rights have been unsatisfactory. Introduction, background of the study, statement of the
problem, justification of study, theoretical framework, literature review, research objectives,
research questions, assumptions or hypotheses, research methodology, scope of the study and
assumptions have all been included in this research proposal. A nation must strike a balance
between the victim's interests and the general welfare while ensuring the accused is given a fair
trial. This is effectively accomplished through lawyers, who should be given access to the
criminal justice system as early as possible. Additionally, the right to counsel analysis clearly
outlines each stakeholder's contribution to protecting this right for the unrepresented accused,
including the police, judges, attorneys, and paralegals. This study evaluates how Kenya, as
required by international standards, actualizes the right to counsel for the unrepresented accused.

vi
 LIST OF ABBREVIATIONS AND ACRONYMS.

LGBTQI Lesbians, Gays, Bisexual, Transgender, Questioning and Intersex

KLR Kenya Law Reports

KNCHR Kenya National Commission on Human Rights

NGOs Non-Governmental Organizations

UDHR Universal Declaration on Human Rights

ALI American Law Institute

AG Attorney General

UDHR Universal Declaration of Human Rights

vii
1.0 Introduction.

1.1 Background of the study.

1.2 Statement of the Problem.

1.3 Research Objectives.

1.4 Research questions.

1.5 Justification of the Study.

1.6 Significance of the study.

1.7 Scope of the Study.

1.9 Literature Review.

1.10 Theoretical Framework

1.10.1 A Theory of Justice

1.11 Research Methodology

1.12 Research Design

1.13 Sources of data

1.14 Data Collection Instruments

1.15 Data Analysis Techniques

1.16 Ethical considerations for secondary data

viii
 CHAPTER ONE
INTRODUCTION.

1.0 Introduction.

An important element of the rule of law is the ability to seek justice. Without access to justice,

people cannot assert their rights, challenge bias, or hold decision-makers accountable. The High-

Level Meeting on the Rule of Law's Declaration emphasizes that everyone has the right to have

access to justice, including members of vulnerable groups, and it reinforces Participating

Countries' commitment to offering fair, transparent, efficient, non-discriminatory, and

accountable services that advance access to justice for all.1 In most criminal proceedings, there

are critical stages that an accused individual who is not schooled in law may not completely

appreciate. To ensure that an accused person receives justice during a criminal trial, several

processes must be implemented. In attempt to protect such rights that the accused may suffer

infringement, the constitution of Kenya 2010 provides that the state must ensure that everyone

has access to justice, and if a price is required, it must be reasonable and not inhibit access to

justice2. This research therefore is to assess where the attempts of the state to protect such rights

have been unsatisfactory.

Introduction, background of the study, statement of the problem, justification of study,

theoretical framework, literature review, research objectives, research questions, assumptions or

1
https://digitallibrary.un.org/record/738876 , Date accessed June 13, 2022
2
Article 48, Constitution of Kenya 2010.

1
hypotheses, research methodology, scope of the study and assumptions have all been included in

this research proposal.

1.1 Background of the study.

One of the hallmarks of a free society is the ability of citizens to go about their businesses

without the need to explain to anyone in authority what they are doing and without fear that they

may be subject to arbitrary challenge or arrest3. “The extent to which we provide safeguards to

protect these rights indicates our society's level of maturity and freedom. It has often been said

that an important measure of society's civilization is the extent to which human rights are

respected and protected within the context of criminal proceedings…”4

It is Important to note that such approach has not always been the case when the question of

treatment of accused persons is in place.

The English background :- The history of protection of rights of accused date back to before

the sixteenth century when the accused was allowed to plead his cause orally and was barred

from being represented by an attorney.5 In 1695 a statute was passed that allowed a defendant

3
Richard Stone Civil Liberties and Human Rights 3rd Ed. (2000) London, Blackstone Press Ltd. at p 38
4
Noorjahan Baya, Human Rights and Criminal Justice Administration of India (2000) New Delhi, Upal Publishing
House at p 11.
5
Robert Proper, Washington University Law Review, Volume 1962, Issue 4 (pp 444)

2
(accused) to be represented, by a lawyer, only against the charges of treason6 , and it was up until

1836 that other felonies were incorporated .7

It is interesting to note that, defendants were not allowed to call witnesses up until the

seventeenth century when statute was passed making it compulsory to have sworn witnesses.8

The rationale behind this was, simply it appears, that the attorney was not needed,

“The evidence must be more blatant and obvious the more heinous the offense. Other than the

fact that the evidence by which he is sentenced should be so extremely apparent and so plain that

no lawyer in the world should be able to answer upon it, there is no other cogent explanation why

the law refuses to let the prisoner at the bar counsel when his life is at stake.9

However, after the accused was allowed to call witnesses, laws were enacted that disqualified

them due to conflicts of interest. These guidelines set a precedent for extending the policy of

incompetency , the underlying fear was that such evidence would be perjurious , the assumption

being the defendant's fear of punishment would often result to him lying under oath.

The American background:-

America borrowed much of its jurisprudence from Common Law which often placed

incompetence on an accused when it came to self-representation in criminal cases. Blackstone

stated that: “All witness, of whatever religion or country, that have the use of their reason, are

to be received and examined, except such as are infamous or such as are interested in the event

6
PLTUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 434-36 (5th ed. 1956); 1 STEPHEN,
HISTORY OF THE CRIMINAL LAw OF ENGLAND 350, 440 (1883); THAYER, EVIDENCE AT THE
COMMON LAw 161 (1898); 1 WIGMORE, EVIDENCE § 575, at 995 (2d ed. 1923) [hereinafter cited as
WIGMORE].
7
An act for regulating of trials in cases of treason and misprison of treason, 1695, 7 & 8 Will. 3, c. 3 (treason); An
Act for enabling Persons indicted of Felony to make their Defence by Counsel or Attorney, 1836, 6 & 7 Will. 4, c.
114 (other felonies).
8
Case and statutory development can be found in 1 WIGMORE 575, at 996 and in THAYER, op. cit. supra note 2,
at 157 n.4
9
L. H. Steward Finch, in Lord Cornwallis' Trial, 7 How. St. Tr. 143, 149 (1678) as quoted in 1 WIGMORE 995.

3
of the cause.”10

The defendant's dread of punishment, whether he was guilty or not, was assumed to cause him to

perjure himself, and he was not allowed to testify to avoid this. When the prosecution wished to

call one or two or more jointly indicted defendants as a witness against the others, it was forced

to discharge such witness in some way, as by the entry of a nolle prosequi11 or dismissal of the

indictment as to him alone12.

The China Background;- China boasts of a 99.1 Conviction rate on Persons who have been

accused for different crimes, This cannot be a good thing at all under any circumstance. A

conviction rate of 99.9% is an indication of a seriously deficient justice system. In China, just 825

of the 1.16 million defendants ruled not guilty in 2013 trials. More than 1,300 cases were subject

to judicial review by Chinese courts in 2017, and many of those cases saw flaws fixed far too

late, including the 1996 execution of Huugjilt, an 18-year-old Mongolian man who was later

found to have been falsely convicted of rape and murder. The police's dependence on confessions

of guilt and the freedom they have to get them are two important factors in China's astounding

conviction rate. Suspects who are in custody do not have a specific right to stay silent, and the

police are allowed to question them for up to 12 hours using "compulsory techniques" in the

absence of a Lawyer. (Defendants may not be allowed a counsel for months in cases involving

significant corruption, national security, and terrorism.) Despite the fact that coercive methods

like torture are technically forbidden and that there is a rule prohibiting illegally obtained

evidence from trials, defendants consistently fail in preventing coerced confessions from being

10
3 BLACKSTONE, COMMENTARIES 369.
11
A formal entry upon the record, by the plaintiff in a civil suit or the prosecuting officer in a criminal action, by
which he declares that he “will no further prosecute some of the defendants;
adapted from The law Dictionary Website, https://thelawdictionary.org/nolle-prosequi/# visited June 14, 2022 .
12
The Accused as Witnesses, 4 CRIm. L. MAG. 323 (1883); PHILLIPPS & AmOS, EVIDENCE 62-63 (1839);
RAPALJE, op. cit. supra note 11, at 47-48.

4
used against them.13 China Is attempting to change the picture it has projected and if the

statements On March 12, by Zhou Qiang, the president of the Supreme People’s Court on his

annual report to parliament, are anything to go by, there’s a renewed a call to cut back on

wrongful convictions, which are epidemic in a legal system that provides almost none of the

rights or protections to accused people that are taken for granted in much of the world. “We

deeply reproach ourselves for letting wrongful convictions happen,” He is quoted .

The South African Background

In South Africa like most African countries in general, criminal justice systems fall short in

combating organized crime, especially when it comes to financial crimes and money-laundering.

Further a lack on the legal framework and judicial resources necessary to combat transnational

crimes, including terrorism. There is little regional coordination amongst the prosecuting

authorities. Access to justice and the protection of human rights are two areas where legal

frameworks and justice systems frequently fall short of international norms. The Apartheid Era

also does not do justice to the countries’ history on Injustice on persons. The tenets that define

justice in and ideal system are affordability , accessibility lack in corruption and misuse and that

has not been the case, stretching from judicial killings , arrest and detentions without warrants ,

state sponsored witch-hunts on political stewards on the likes of Mandela Nelson and fast

forward today to the Likes of Julius Malema . There has been an attempt to radicalize justice

system with certain acts of parliament. The Criminal Law Amendment Act 105 of 1997, which

saw that minimum sentencing provisions are introduced, the Criminal Procedure Amendment

Acts of 1995 and 1997, that leaves the task of acquiring bail an uphill endeavor, the Correctional

13
Adapted from https://www.nytimes.com/2015/03/18/opinion/chinas-broken-justice-system l, accessed on July 7,
2022,

5
Services Act 111 of 1998, it does complicate the release criteria and stiffens bail and parole

processes; and the Prevention of Organized Crime Act 121 of 1998 which casts wider criminal

net and ordered the forfeiture of criminal gains.

1.2 Statement of the Problem.

Ideally individuals should be allowed to go about their daily lives without having to justify

themselves to anyone in authority or fearing arbitrary confrontation or detention and if need

arises and the state permits the police to arrest, search, question, and detain a person, such

authority must be explicitly stated in a statute, exercised only on the most compelling grounds,

and only when absolutely necessary. Towards achieving the aforementioned, such rights are

firmly enshrined in Article 48 of the Constitution of Kenya14 .

Reality on the ground is however far from ideal, Amnesty International on Kenya Report 2020;

on State oh Human Rights, Police used excessive and sometimes lethal force to enforce a curfew

and to disperse peaceful protests; they also carried out extrajudicial executions and enforced

disappearances. Journalists and bloggers were subjected to harassment, intimidation and arbitrary

arrests.15 Further as per 2020 Country Reports on Human Rights Practices: Kenya Significant

human rights issues seem to be pertinent Further the Independent Policing Oversight Authority

(IPOA) collected 161 complaints about casualties due to police actions or inactions between July

2019 and June 30, compared to 119 the previous year.16 In October the Defenders Coalition said

it had provided support, including legal representation and bail, to 127 activists who had been

14
Article 48 Constitution of Kenya 2010, Access to Justice: The State shall ensure access to justice for all persons
and, if any fee is required, it shall be reasonable and shall not impede access to justice.
15
https://www.amnestykenya.org/kenya-report-2020- Accessed on 14 June 2022 at 9: 10 Am .
16
http://www.ipoa.go.ke

6
arrested or detained since March17. The figures haven’t gone down and unless measures are taken

into consideration to mitigate such injustices there is bound to be an upward trajectory of the

aforementioned.

There appears to be a knowledge gap when it comes to addressing the rights of the defendants,

attempts of legislation and legal aid appears to be droplets in the ocean and in most often times it

might appear that the accused it almost often considered guilty unless proven innocent therefore

there is need to have an in-depth assessment on the efficacy of the Kenyan constitution 2010 in

mitigating the injustices against accused persons.

1.3 Research Objectives.

The objectives of this study are;

i) To establish the efficacy of existing legal framework in mitigating injustice against

accused persons in Kenya.

ii) To examine the efficacy of available institutions for mitigating injustice against

accused persons in Kenya.

iii) To ascertain the efficacy of penalties attracted by infringement of abuse of rights of

the accused persons in Kenya.

1.4 Research questions.

17
https://www.state.gov/reports Accessed on June 14, 2022 at 12: 17 PM

7
The research questions that are going to guide this study are;

i) How effective are the existing laws in mitigation of injustices against accused persons

in Kenya?

ii) How effective are the institutions provided for addressing injustices against accused

persons in Kenya?

iii) To what extent are the penalties provided for effective in deterring occurrence of

injustices against accused persons in Kenya?

1.5 Justification of the Study.

This study on the Injustice against accused persons is justified by the need of having a solution

for protection of the rights of accused persons written to the latter, this will address the

knowledge gap existing of specific wording of the law to the latter. There is also need of this

study to help inform other researchers pursuing similar interest as the rights of accused persons.

This study is also justified as it will inform the existing policies on steps to approach towards

ensuring access to justice for accused persons. This research shall also in effect extend discourse

analysis in doctrinal research for such candidates who seek to be informed on matters affecting

injustice of defendants.

1.6 Significance of the study.

8
 The study on the efficacy of the Constitution of Kenya in Protection of the rights of the accused

will be of primary importance to any accused person by bringing to their attention the availability

, affordability and accessibility of Justice even though they may be on the opposite side of the

Law. Further this study will help the executive in formulating working plans towards

achievement of equitable justice for accused persons. The judiciary as well may benefit from

such study as it touches on the shortcomings that are in existence in the trial process and that

touch on the interests of accused persons. Legislature on the other hand stands to benefit from

this research as they form opinion on formation of policy and framework which will specifically

address the plights of accused persons. Finally this study will aid scholars in their academic

research as they set out to expand the knowledge on this subject.

1.7 Scope of the Study.

This Research for the purpose of this study will be limited to Kenya because the challenges that

I seek to address is existing in this jurisdiction and shall be doctrinal research relying on already

gathered figures. This study shall take place over the period of eight (8) months spread over two

academic semesters where one semester covers research proposal writing and the second the

dissertation writing, and this is in line with the requirements of Mount Kenya University

requirements for the award of the Bachelor of Laws Degree. The study shall be guided by the

Constitution of Kenya 2010 , together with such other provisions that guide the criminal trial

process to address of Injustices meted against accused persons in Kenya, the parameters or

indicators of accessibility of justice , affordability , and availability are that which shall be put to

9
scale. The methodology in application in this research shall be doctrinal research and content

analysis which is in line with the policy of Mount Kenya University. This Research shall be

guided by two theories ;

i) Natural Rights Theory which will anchor the Independent Variable theme

The doctrine of natural rights has been viewed as a component or element of modern natural law

doctrine18which consists of moral rules that come from God and indicate what a person should be

free to do, political laws that specify what a person is free to do and are produced by government,

and moral laws that specify what a person can do and are inherent in human nature.19 Around

1689, Hobbes and Locke asserted that there are numerous natural rights, but they are all deduced

from one fundamental right—each man's right to self-preservation. The primary lesson of the

principles of natural rights is that all duties flow from each person's inherent right to life. On the

other hand, it teaches that no one can be forced to view as a responsibility anything he views as

harmful to the security of his life.20. This theory is the most appropriate in this theme since in

encompasses the element of access to justice as an inherent right inalienable to human beings ,

further it covers the essence of self-preservation and the role of the state in protection and

ensuring justice to all irrespective.

ii) A Theory of Justice which will anchor dependent variable theme.

‘ A Theory of Justice is a 1971 work of political philosophy and ethics by philosopher John

Rawls (1921-2002)21, in which the author aims to give a moral theory alternative to utilitarianism

and focuses on the distributive justice issue (the socially just distribution of goods in a society).

The idea integrates various old social contract theories as well as a modernized form of Kantian

18
http://www.encyclopedia.com/topic/natural_rights.aspx, (accessed 14 June 15, 2022 At 16: 05)
19
J. Waldron (Ed.) Theories of Rights, Oxford University Press, 1984, pp. 6.
20
World Academy of Science, Engineering and Technology International Journal of Law and Political Sciences
Vol:10, No:8, 2016
21
https://en.wikipedia.org/wiki/John_Rawls , accessed on June 11, 2022

10
philosophy. Rawls' theory of justice is fully political, in contrast to other varieties of justice

examined in other subjects and circumstances. The principle that no member's rights should

infringe on another member's freedom should be the only constraint on how society should be

structured such that each member has the maximum amount of freedom possible. Second,

differences in wealth, whether social or economic, can only be accepted if the poorest people

benefit more than they would under an equal distribution. Last but not least, if there is such a

favorable imbalance, it shouldn't make it harder for people without money to hold positions of

influence, such as those in government.’22 The consideration of this theory in this study is fueled

by the tenets of this theory which pull out that justice should be impartial irrespective of the

subject on the receiving end.

1.8 Research Assumptions.

The assumptions I am making throughout this study are ;

i) The data that I will collect from scholarly works is true and readily available,

ii) The law is not working in relation to my problem, i.e that the accused persons are

facing injustices yet there is provisions for their protection.

1.9 Literature Review.

Through the writers of many texts and policy papers, this literature review carried the critical

22
Rawls, John. A Theory of Justice. Cambridge, Massachusetts :The Belknap Press of Harvard University Press, 1971

11
analysis of the various aspects that correspond to my objectives and identified the literature's

strengths and flaws. Fundamental rights of persons are established primarily in the law, the rules

for enjoyment of the same are still stipulated by the same Laws. The works of literature that I

have engaged with in respect to this study are The constitution of Kenya 2010, with emphasis

majorly on Chapter 4 on Human rights and specifically at Articles 46,47,48,49 & 50; The

Criminal Procedure Code Cap 75 Laws of Kenya . My attempt is to establish impunity that exists

in the Kenyan Justice system that results to challenges of ethical integrity, misuse of powers and

responsibility, non-compliance to laws and regulations and finally the corruption and the effects

that arises from the aforementioned.

1.9.1 Constitution of Kenya 2010.

The State is bound by Article 48 of the constitution to ensure that everyone has access to justice

and, if a fee is necessary, to make sure that it is reasonable and does not obstruct access to justice.

Article 48 aims to improve everyone's access to justice in Kenya, especially for underprivileged

and disadvantaged groups.23 Schedule Five of the Constitution mandates that legislation be

passed by parliament in order to carry out Article 48 of the Constitution in order to effectively

execute the constitutional provisions on the right to obtain justice. There are international treaties

that guarantee the right to access justice, and Kenya is required to abide by them even though the

constitution serves as the benchmark from which it must flourish.

23
Article 48 Constitution of Kenya 2010

12
1.9.2 Mitigation of Injustice against accused persons

The provision of conflict resolution methods that are accessible, close by, assure swift justice,

and whose processes and procedures are understood by users has been claimed to be a

requirement for access to justice. In this broader sense, issues pertaining to access to justice

include those pertaining to court accessibility (including other judicial and quasi-judicial fora)24,

language of court proceedings, including interpretation services, court fees, public participation

in the administration of justice, accessibility to people with disabilities, and information

accessibility. But even so, a number of obstacles have made it difficult for Kenyans to have

access to justice, including high court fees, the country's remote location, the difficulty of the

policy and guidelines, the use of legal jargon, an absence of personnel, a lack of financial

independence, a lack of effective remedies, a backlog of cases that delays justice, and a lack of

knowledge about alternative dispute resolution (ADR) and conventional dispute resolution

methods.25

1.9.3 Efficacy of provisions to be enacted that mitigates infringement of abuse of rights of

the accused persons.

According to Schedule Five of the Constitution, legislation must be passed by parliament in

order for Article 48 to take effect. It is important to remember that this legislation has not yet

been passed. Article 48 of the constitution should be implemented as soon as possible by

legislation passed by the legislature.26

Furthermore, while Clause 3 of Article 47 (1) guarantees the right to fair administrative

proceedings, the law envisioned therein has not been passed by parliament. The poor,
24
Realizing the Promise of the New Constitution”, A Report by the Kenya Civil Society Strengthening Program, 2011.
25
Improving Access to Justice: Kariuki Muigua.
26
Article 261(1) Legistlations to be enacted with Timeframes

13
disenfranchised, and less privileged people of the community may find it difficult to access

justice as a result. The proposed legislation should be passed using a human rights perspective

that includes public involvement and addresses the administration of justice.

1.10 Theoretical Framework

A number of theories that attempt to explain the origin of injustice against accused persons are

available , they include but are not limited to A Socio-Legal Conflict Theory of Perceptions of

Criminal Injustice27, The theory of fair hearing , A theory of Justice , Natural Rights , legal

positivism etc etc. This research shall be guided by two off these.

1.10.1 A Theory of Justice

which will anchor dependent variable theme.

‘ A Theory of Justice is a 1971 work of political philosophy and ethics by philosopher John

Rawls (1921-2002)28, in which the author aims to give a moral theory alternative to utilitarianism

and addresses the problem of distributive justice (the socially just distribution of goods in a

society). The theory incorporates a modernized version of Kantian philosophy as well as a variety

of traditional social contract theory. In contrast to other types of justice studied in other fields and

contexts, Rawls' theory of justice is entirely political. The idea is that society should be built in
27
Theory Proponents are , John Hagan
28
American moral and political philosopher in the liberal tradition, https://en.wikipedia.org/wiki/John_Rawls ,
accessed on June 11, 2022

14
such a way that its members have the greatest degree of liberty possible, limited only by the idea

that no one member's rights should impinge on the liberty of another. Second, disparities –

whether social or economic – can only be tolerated if the poorest are better off than they would

be in an equal distribution. Finally, if there is such a positive imbalance, it should not make it

more difficult for individuals without money to hold positions of power, such as in

government.’29 The consideration of this theory in this study is fueled by the tenets of this theory

which pull out that justice should be impartial irrespective of the subject on the receiving end .

1.10.2 Natural Rights

This is the theory which will anchor the Independent Variable theme .The doctrine of natural

rights has been viewed as a component or element of modern natural law doctrine30which consists

of moral rules that come from God and indicate what a person should be free to do, political laws

that specify what a person is free to do and are produced by government, and moral laws that

specify what a person can do and are inherent in human nature.31 According to Hobbes and Locke

around 1689 , there are many natural rights, but all of them are inferences from one original right,

the right that each man has to self-preservation .The doctrine of natural rights teaches primarily

that all obligations are derived from the right which every man has to preserve his own life.

Conversely, it teaches that no man can be bound to regard as a duty whatever he regards as

destructive to the security of his life. This theory is the most appropriate in this theme since in

encompasses the element of access to justice as an inherent right inalienable to human beings ,
29
Rawls, John, 1921-2002 author. A Theory of Justice. Cambridge, Massachusetts :The Belknap Press of Harvard
University Press, 1971
30
H. Jaffa, “Natural Rights,” 2016, http://www.encyclopedia.com/topic/natural_rights.aspx (accessed 14 June 15,
2022 At 16: 05)
31
J. Waldron (Ed.) Theories of Rights, Oxford University Press, 1984, pp. 6.

15
further it covers the essence of self-preservation and the role of the state in protection and

ensuring justice to all irrespective.

1.11 Research Methodology

Here, a doctrinal research technique will be used. This type of research approach has the

advantage of being inexpensive because there are no in-person encounters, which eliminates the

need for travel and other expenses. Moreover, there are no restrictions on conducting the study

outside of regular work hours, so it can be done whenever it is convenient. Myneni describes

doctrinal legal research as research done on a legal proposition or propositions by analysis of the

existing statutes and cases by using the power of reason. power 32.

1.12 Research Design

The desktop research design is the one employed in this article. It involves looking for,gathering,

and analyzing information from studies conducted by others before formulating a conclusion

using the desktop research as a guide. One advantage of desktop design is that it provides a plan

32
Amrit Kharel, 'Doctrinal Legal Research' [2018] SSRN Electronic Journal. [Accessed on 26th November, 2021]

16
for the entire research project, enabling the researcher to easily anticipate and go around potential

roadblocks. The second is that this design specifies the boundaries to be concentrated on,

directing the researcher to the precise locations to concentrate on.

1.13 Sources of data

This being a work of legal research , I will be guided by Statutory basis being , The Constitution

Acts of Parliament, Subsidiary/Delegate/Subordinate.County Assembly Legislations,Foreign

legislations,Treaties and conventions,General rules of international law, Further I shall consult

other sources of information such as reasonings arguments from ,English common law, Doctrines

of equity,International customary law,African customary law,Judicial Precedents, published

works and articles , websites and reports from government and non-governmental bodies.

1.14 Data Collection Instruments

Checklists for document analysis and research log analysis will be the tools employed. The

research will concentrate on the Constitution and bill of rights provisions in relation to the reality

of what is happening, and using relational analysis, it will be possible to create an analysis based

on the points of convergence and divergence between the law as it should be and the realities that

17
exist despite the existence of fully operational legal systems and institutions for their

implementation.

The researcher will be able to recognize the concepts related to the defense of inalienable human

rights in texts like the Kenyan Constitution through the application of relational analysis. from

Kenya

1.15 Data Analysis Techniques

Doctrinal research uses two data analysis categories this is; thematic analysis and content

analysis33. In this research, thematic analysis will be used to closely examine statutes like the

Constitution of Kenya, the Criminal Procedure Code Act and any other statutes that affects the

infringement of human rights of accused persons. These statutes shall be interrogated and

compared to existing evidence of breach on legal provisions. Content analysis will be used to

identify the aforementioned patterns and draw a picture of the reality on the ground. Herein under

this analysis, the research shall be on a descriptive nature.

The acquisition and examination of the information sources will aid in the analysis of legal

research. I will be able to identify the law underlying this study, which is based on the Bill of

Rights, at first. This viewpoint will be supported by the research's utilization of regional and

international laws that uphold the bill of rights. This paper cites the well-known authority

approach. The second step will be reading and understanding the Bill of Rights, which will be

followed by highlighting the key ideas of the Article. Updates to the law are the last phase, and

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'Statistics Solutions, 2022) <https://www.statisticssolutions.com accessed 30 November 2021.

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since this research dissertation is a formal academic document, it can be used as a

recommendation on some of the reforms that may be required to ensure that the rights of those

who have been accused of crimes are protected and that those rights are upheld.

1.16 Ethical considerations for secondary data

Every other text utilized in this article that is not the original idea or analysis will be properly

credited. The same will be followed for publishers who have licenses and any other type of

privacy access, and if prior consent is required, it shall be obtained.

By making sure that the owners and writers of ideas are acknowledged and by using the

TURNITIN tool to submit the document for cleaning, this research has been conducted with a

strict respect to plagiarism guidelines. This document includes the final report on the plagiarism

index. Data that is freely accessible is also acknowledged and properly cited. The confidentiality

and privacy of personal data have been protected using existing ethical, legal, and other

measures, yet there are still significant weaknesses and restrictions. No data have been

intentionally or unintentionally misrepresented in this study, and no truthfully reported data have

been communicated in a misleading manner.

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 BIBLIOGRAPHY

THE CONSTITUTION OF KENYA 2010

Amrit Kharel, 'Doctrinal Legal Research' [2018] SSRN

Rawls, John, 1921-2002 author. A Theory of Justice. Cambridge, Massachusetts :The

Belknap Press of Harvard University Press

J. Waldron (Ed.) Theories of Rights, Oxford University Press, 198

PLTUCKNETT, A CONCISE HISTORY OF THE COMMON LAW

Richard Stone Civil Liberties and Human Rights 3rd Ed. (2000)

Noorjahan Baya, Human Rights and Criminal Justice Administration of India (2000)

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