Judiciary wrong on lengthy pre-trial detention orders

The ease with which our courts are now detaining suspects of criminal offences is cause for concern from a rule of law and human rights perspective.

It is now common for courts to permit pre-trial detention of suspects for as many as 30 days before they can formally plead to a charge, ostensibly to allow investigators to conduct "further investigations". Even more appalling is that extensions are granted when such periods are exhausted and without prosecutors breaking a sweat.

Arbitrary descretion?

While judicial officers retain discretion to determine whether to grant bail or bond depending on facts of each case, the said discretion must not be arbitrary but guided by law.

The starting point in this regard is article 49 of the Constitution that guarantees an arrested person the right to be released on bond or bail, on reasonable conditions pending a charge or trial unless there are compelling reasons not to be released.

Internationally, article 9(3) of the International Covenant on Civil and Political Rights, which Kenya has ratified and therefore applicable in the country provides that it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.

Owing to discrepancies in how judicial officers applied their discretion to determine whether there are compelling reasons not to release an arrested person on bail or bond, the Bail and Bond Policy guidelines were developed.

What is needed

These guidelines outline the reasons the prosecution may advance to convince the court to deny bail. These reasons include: that the accused is likely to fail to attend court proceedings, that the accused will likely commit a serious crime, that the accused person is likely to endanger the safety of victims or the public, that the accused person is likely to interfere with witnesses or evidence, that the accused person is likely to endanger national security or that it is in the public interest to detain the accused person.

Worryingly, there is an apparent pattern where judicial officers now, as a matter of course, allow lengthy detention of suspects before they formally plead to charges in court.

When this is done routinely as opposed to the decision being informed by the threshold (that is, compelling reasons) as set by the Constitution, statutes and the above mentioned guidelines, rights of accused persons are violated.

Prolonged pre-trial detention is essentially incompatible with the constitutionally guaranteed presumption of innocence and this presumption is a cornerstone principle in criminal trials. Essentially, it is interpretation of this principle that permitted President Kenyatta and his deputy to run for office despite the grave criminal charges they faced at the ICC.

It must therefore be interpreted consistently as what’s good for the goose is good for the gander. It is a fundamental human right not to be arbitrarily arrested or detained and this prohibition is also applicable to judicial officers in their decision making.

As the UN’s Human Rights Committee has explained, the notion of ‘arbitrariness’ is not be equated with ‘against the law’. Rather, it includes elements of inappropriateness, injustice, lack of predictability, reasonableness, necessity and proportionality.

Is it necessary?

Arguably, even when a judicial officer allows accused persons to be detained to allow further investigations (as the law allows), the decision must be informed by elements such as appropriateness, reasonableness and necessity.

This is hardly the case when, for example, police officers question a suspect for days and when they finally make the decision to arrest and arraign the person in court, they seek more time to investigate the same matter and facts.

Additionally, accused persons are paying (with loss of their liberty) for the challenges faced by investigators and prosecutors in their work including inadequate technical capacity, understaffing and poor strategy.

To the detriment of human rights, the Judiciary continues to excuse these challenges by readily granting the police permission to hold accused persons for inordinately long periods before they are charged.

Kenya has a dark history of detention without trial and one would hope that with a new constitutional dispensation the country has turned the corner. This, unfortunately, does not seem to be the case. Today, detention without trial has blessings from the Judiciary.

Mr Kahuthia is an international human rights law expert emurimi2015@gmail.com