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The Admissibility of Evidence Obtained in a Manner that Violates Human Rights under the 2010 Kenyan Constitution: How Courts Could Interpret Article 50(4)?

image of International Human Rights Law Review

Article 50(4) of the 2010 Kenyan constitution provides that ‘[e]vidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.’ In other words, Article 50(4) allows a court to admit evidence obtained in a manner that violates a right or rights in the bill of rights provided the admission of such evidence would not render the trial unfair or otherwise be detrimental to the administration of justice. At the time of writing Kenyan courts had not yet interpreted the meaning of Article 50(4). The purpose of this article is to rely on jurisprudence from countries such as South Africa and Hong Kong and international and regional human rights bodies and suggest ways through which Kenyan courts could apply Article 50(4).

Affiliations: 1: Senior Lecturer, Faculty of Law, University of the Western Cape (UWC) and Research Fellow, Community Law Center (UWC). LLD (UWC); LLM (University of Pretoria), LLM (University of the Free State); LLB (Makerere University),


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