The legal and constitutional significance of Article 74(3) of the Kenyan draft constitution on improperly obtained evidence

The rules governing admissibility of improperly obtained evidence vary from one country to another. However, we can categorise the approaches in to two broad groups, i) Exclusionary approach and ii) Inclusionary approach. The exclusionary approach in its rigid form could be traced to the United States of America Supreme Court. The American exclusionary rule is to the effect that any illegally obtained evidence is not admissible. In Weeks v United States the court gave the rationale for the exclusionary rule as meant to protect the rights of citizens as provided in the Constitution and specifically the Bill of Rights. Day J noted, 'If letters and private documents can thus be seized and held and used on evidence against a citizen accused of an offence, the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the constitution'. The American exclusionary approach has been adopted in other jurisdiction but in a modified form. The approach has had influence in continental jurisdictions, supranational regional jurisdictions and the evidential systems of international criminal tribunals.

Grantor

Institute of Criminology

Year dc:date.issued

2004

Author dc:creator

• Mwaniki, Kyalo

Advisor dc:contributor.advisor

• Schwikkard, P J

• law

Handle dc:identifier.uri

http://hdl.handle.net/11427/38920

OAI identifier oai:identifier

oai:open.uct.ac.za:11427/38920