Sudi and Associates Advocates & Law Consultants

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YOUR RIGHTS DURING A POLICE INVESTIGATION!
YOUR RIGHTS DURING A POLICE INVESTIGATION! 150 150 Admin_salclaw

Police and the state in general, are empowered to conduct investigations in a bid to solve crime and bring criminals to book. Indeed, members of the public are required to comply with summons requiring their attendance at police stations for the purpose of investigations. Tellingly, failure to honour requisitions for attendance at police stations without a plausible excuse is an offence. Similarly, showing up at a police station and refusing to respond to the questions that may be legitimately asked or untruthfully responding to them amounts to an offence. However, a person is under no obligation to respond to questions that may tend to expose him/her to a criminal charge or penalty. This exemption springs from the constitutional right to refuse to give self-incriminating evidence afforded to a person involved in a criminal inquiry.
Crucially, a police officer who seeks to record a statement from a person against whom a criminal charge may be preferred or who is already facing a criminal charge MUST WARN such a person that the statement they will make may be used as evidence against them. If such a person forfeits their right to remain silent after being warned and moves on to record a statement, then any admissions they make in their statement may be legally used against them in a criminal trial. Although admissions need not be given voluntarily as the Supreme Court observed, confessions, on the other hand, MUST be procured through express consent from the person providing it. To this end, it must be appreciated that despite all confessions being admissions, not all admissions are confessions. The difference lies in the effect either of the two would have in a criminal case.
A confession would automatically return a guilty verdict because it is an express and explicit acknowledgement of guilt by an accused person. Further, there are strict rules to be followed in order for a confession made in a police station to be accepted in court. Conversely, an admission is an acknowledgement by an accused person of a matter (s) relevant to a criminal charge, which may give the impression that the accused is guilty. Since an admission only insinuates that the accused is guilty, it cannot, by itself, be used to render a conviction; other evidence is hence required to support an admission. Therefore, it follows that an incriminating revelation made voluntarily by a suspect or accused person to police officers in the course of investigations would be treated as an admission if such a revelation is not recorded in strict compliance with the Evidence Act so as to be regarded as a confession under law. This position, which was reiterated by the Supreme Court, is an effort to strike a balance between the rights of persons under a criminal inquiry, and the rights of the public to peace and security . So that, the constitutional mandate of security agencies to maintain/restore peace and security is not hampered by the rights of persons under criminal inquiry, and vice versa.

Way forward: It is best for any person subjected to police investigations, who fears that the information they may disclose will cast them in the bad light of being viewed as the culprits, to choose to remain silent on that aspect.

Prepared by Ochwaya E. Sudi
Advocate of the High Court of Kenya

Edwardsudi@salclaw.co.ke

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PROTECTION AGAINST DOMESTIC VIOLENCE
PROTECTION AGAINST DOMESTIC VIOLENCE Admin_salclaw

 

DOMESTIC VIOLONCE

PROTECTION  AGAINST DOMESTIC VIOLENCE

Kenya has witnessed an unprecedented rise in cases of domestic violence some unfortunately ending tragically with death. Many Kenyans unfortunately unaware that there is a law that specifically protects individuals from domestic violence namely the Protection Against Domestic Violence Act of 2015.

The act defines domestic violence as violence against a person, or threat of violence or of imminent danger to that person, by any other person with whom that person is, or has been, in a domestic relationship. The genius of the act is that it broadens the meaning of the word domestic relationship from the commonly accepted interpretation of a couple to include persons who have been previously been married, persons living in the same household, persons who are divorced, persons who are family members, persons who are engaged, persons who have children with each other and persons who have a close personal relationship.

The act goes further to define violence to include the following:

  1. Abuse that includes child marriage, female genital mutilation, forced marriage, forced wife inheritance, interference from in-laws, sexual violence within marriage, virginity testing and widow cleansing;
  2. damage to property;
  3. defilement;
  4. depriving an individual or hindering an individual from access to reasonable share of the facilities associated with the individuals place of residence;
  5. economic abuse;
  6. emotional or psychological abuse;
  7. forcible entry into an individual’s residence where the parties do not share the same residence;
  8. harassment;
  9. incest;
  10. intimidation
  11. physical abuse;
  12. sexual abuse;
  13. stalking;
  14. verbal abuse; or
  15. any other conduct against a person, where such conduct harms or may cause imminent harm to the safety, health, or well-being of the person.

The act does not only protect you from actual infliction of the violence described above but also protects you in instances where you fear or there is imminent threat that that the violence above will be inflicted on you.

The Act has encompassed the new forms of violence and abuse that have arisen with the emergence of social media as long as the perpetrator is person with whom you have a close personal relationship. Such forms of violence include emotional abuse, psychological abuse, harassment, intimidation, stalking, verbal abuse and any other conduct against you that may cause imminent harm to your safety, health or well being.

 

 

Where there is domestic violence or where there is imminent threat of domestic violence as described above in any domestic relationship. The act gives you the power to apply for a protection order from court. A protection will among other things direct an aggressor, not do any one or more of the following actions against you:

  1. physically or sexually abuse or threaten to abuse you;
  2. damage, or threaten to damage, any your property;
  3. engage, or threaten to engage, in behaviour including intimidation or harassment, which amounts to psychological abuse against you;
  4. encourage any person to engage in behaviour against you where the behaviour, if engaged in by the aggressor would be prohibited by the order;
  5. engage, or threaten to engage, in behaviour including intimidation, harassment or stalking which amounts to emotional, verbal or psychological abuse against you;
  6. engage, or threaten to engage, in economic abuse against you; or
  7. engage, or threaten to engage, in cultural or customary rites or practices that abuse your person.

An aggressor who has been served with a copy of  a protection order  and who contravenes the order commits an offence and is liable to a fine not exceeding one hundred thousand shillings, or to imprisonment for a period not exceeding twelve months, or to both.

The act further provides that where one suffers personal injuries or damage to property or financial loss as a result of the domestic violence, A court may ward compensation in respect of the injury or damage or loss where it deems just and reasonable.

The coming into force of the Act has hailed a new era in how we deal and react to acts of domestic violence against us be it in person or on social media. With the coming into force of this act you should not feel like you are living in hell from one day to the next. That there is nothing you can do to escape. That you don’t know where you would go if you acted. That you are utterly powerless, and that feeling is your prison.

We, as peaceful and loving citizens should at all instances stand up and condemn all instances of domestic violence, because domestic violence is raw and if unleashed has the capacity of tearing away the veil of civilization that keeps us sane.  “In a healthy relationship, vulnerability is wonderful. It leads to increased intimacy and closer bonds. When a healthy person realizes that he or she hurt you, they feel remorse and they make amends. It’s safe to be honest. In an abusive system, vulnerability is dangerous. It’s considered a weakness, which acts as an invitation for more mistreatment. Abusive people feel a surge of power when they discover a weakness. They exploit it, using it to gain more power. Crying or complaining confirms that they’ve poked you in the right spot”― Christina Enevoldsen,

STAND UP AGAINST DOMESTIC VIOLENCE THE POWER IS WITHIN YOU

Eugene Sudi

Sudi & Associates.

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The Fundamental Position of Legal Auditing in Corporate Kenya
The Fundamental Position of Legal Auditing in Corporate Kenya Admin_salclaw

Introduction

The business environment is getting more complex by the day with regard to the legal implications of transactions and relationships between companies and other stakeholders in the society. The emergence of an integrated global economy and international trade have in turn increased the rights and duties owed by the company to those more traditional ones. The responsibilities of a company and its leadership have widened from the traditional one to shareholders to a more diverse duty to the employees, consumers, suppliers and distributers, to the government and to the foreign governments in countries where the company operates or its products are sold.

The emergence of labor relations, environmental protection issues, consumer protection regime and the intergovernmental relations have brought about consciousness of rights and regulation of businesses compliance of which is required in most cases as a matter of law. This has resulted in a more complex legal regime in which the regulators in the society impose heavy fines and stringent measures, such as criminal prosecution, for non-compliance with the laws and regulations in place to the financial detriment of the company.

These transactional and contractual complexities require qualified, well-balanced and focused legal input so as to come up with remedies and preventive mechanisms to shield the company from possible legal conundrums by maintaining its legal health. Therefore, it is vital that the companies conduct legal audits to ensure the compliance with the laws and policies so as to prevent or minimize the risk of litigation.

What is a Legal Audit?

A legal Audit is a systematic review of the company’s transactions, contracts and practices to establish its legal status, identify potential legal problems and help minimize its legal liability. It involves inspections of the company’s activities to establish their compliance to its constitution, the national and the international laws as the case may be. A legal Audit seeks to establish the adherence to all laws, rules and regulations that are applicable to the company in undertaking its objectives.

Who does it?

A legal audit is done by a lawyer who may be an in house counsel or an external lawyer. The benefits of it being done by an in house counsel is that he already knows the internal processes and therefore will save time. However, it is more advisable to have an external lawyer to do the audit so as to bring in a new perspective of the processes.

It is also advisable to bring in a lawyer who is a qualified advocate so as to be covered under the advocate-client privilege and also so that incase there is an additional transaction or litigation work to be pursued he has the capacity to undertake it without putting the company in a further legal abyss. The advocate-client privilege will be vital in safeguarding the company’s information, documents and communication revealed to the lawyer so as to avoid their being used in litigation against the company.

When is it done?

The instances or intervals within which a legal audit ought to be done will depend on the particular company concerned. Several factors will guide the decision such as the size and structure of the company, the complexity of the industry or the transactions and the frequency in the change of laws and policies in the sector. However, the audit should be done periodically and with guidance as to the company’s last audit.

It is also advisable for a company to order a legal audit immediately a board or a management team is dismissed and a new one is appointed. This should be done especially if the previous board is accused of past legal improprieties or questions have been raised on the company’s legal position.

What does it involve?

The conduct of a legal audit is normally focused on compliance to existing laws and policies. This may be with regard to the whole company, especially if a legal audit has never been done before, or it may be focused on a certain set of transactions, law or policy as the management will decide or focused on the company’s potential problem areas with the lawyer’s advice.

Every audit is usually unique based on the company, the transaction or subject to be audited or the lawyer undertaking the audit. However, one thing that stands out is that thelegal audit is usually required to evaluate the company’s current andfuture legal issues in light of the company’sneeds and industry standards and to come up with effective solutions for the organization.

Generally, the lawyer comes up with an Audit Plan which is discussed with the management and approved. Once approval has been obtained, the lawyer comes up with a questionnaire which is submitted to the company’s employees with the relevant knowledge for answers and also requests for documents to be submitted for review. The Lawyer then reviews the company’s transaction files and processes either randomly selected as is done in the accounting audits or the whole files with regard to the subject which is normally based on the complexity of the audit.

The Audit may focus on various subjects including the form of business organization that is most suitable, review of taxation law compliance, review of Intellectual Property issues and use of internet, Human resources and employee benefits, ongoing and threatened lawsuitsand Corporate Governance which is currently an important requirement when dealing with international investors and doing business in some of the developed countries among others.

If the Lawyer requires any clarification as to the documents submitted or answers given he may interview the employees either by phone or in person. The Lawyer will thereafter come up with an initial list of findings which will be submitted to the management for their feedback. After this the lawyer will analyze the findings and come up with recommendations which will be included in an Audit Report stating whether the company is compliant or not.

A written Audit Report is then issued and personal training sessions with the relevant employee carried out, if possible, with the aim of addressing the specific issues uncovered and promoting the best possible practices within the company.

Why is it important?

The main benefit of carrying out a legal audit is to identify the company’s legal liabilities and risks beforehand and come up with a way of averting potential lawsuits and penalties. This is a sure way of saving the company’s money in litigation costs and other unnecessary expenses. The audit also examines the company’s contractual position with its employees, customers and other players such as insurance and proposes possible remedies if potential problems are identified. In such a case it will go a long way in averting personnel problems as the lawyer conducting the audit can review and suggest updates in the company’s contract and policies so as to avoid issues such as unfair labor practices, discrimination and sexual harassment.

It also helps the company become or remain compliant with the laws and policies in place as it exposes the laws that have not been complied with and provides for ways of complying with them thus safeguarding the company’s legal position. It fosters observance of rules and regulations in place, especially in a regulated industry, thus saving the company money that would be spent on the settlement of hefty fines imposed as a result of their breach.An example is with regard to the burgeoning environmental laws and policies coupled with strict regulators where such an audit will help the company to be steadfast in complying with the complex area of law. This also results in enhanced compliance reputation which is a sign of quality.

A legal audit is also an opportunity to update the company’s records, registrations, and licenses with a view to promotingits rights and legal position.Once the employees and the management have been trained on the compliance issues it will lead to improved internal processes and systems. It can also focus on such issues as the company’s tax requirements with a view to establishing the company’s position and finding ways of lessening its tax liabilities.

It also demonstrates that the company’s directors and management have carried out due diligence with regard to the activities undertaken thereby minimizing their exposure to personal liability.

The consequences of failing to comply with the laws and policies are grave and costly. Some of them include the revocation of licenses, legal action against directors for breach of trust, fines being imposed against the company, losing existing tenders and the company being involved in ultra vires transactions which may occasion the directors being personally liable.

Conclusion

A legal audit is vital for any company and will go a long way in helping to avoid unnecessary losses and penalties that might lead to the business suffering unnecessary costs or at the extreme closing up. It will enable a company to achieve its objectives with minimal risk to its management, employees and shareholders. Kenyan businesses should, therefore, embrace the idea of a legal audit as it is a sure way of minimizing the potential exposure of the company to lawsuits and penalties.

Prepared by
Collins Bush Wanjala
Consultant
Sudi & Associates

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