Lack of bail term limits puts lawyers at loggerheads with their clients

Kenya Bureau of Standards Managing Director Charles Ongwae in the dock at a Miliman Court on 25/6/2018. [Photo: George Njunge/Standard]

Stiff and conditional bail terms set by Kenyan courts recently have set off a debate among law makers on whether the Judiciary ought to introduce guidelines on the maximum and minimum amounts for various bailable offences during criminal proceedings.

Some legislators, like Makueni Senator Mutula Kilonzo Junior support the status quo, arguing that bail terms should be at the discretion of the sitting magistrate.

“You cannot limit the discretion of a magistrate or judge because apart from cash bail, there are other conditions that the court is allowed to set,” he says.

Issue abused

However, he says the issue of cash bail has been abused yet it was intended to make the accused person to appear in court whenever the case comes up.

“The proper procedure should be a bond with sureties.

This is because whoever stands as a surety ensures that the accused person attends court without fail and whatever is given as security can be forfeited to the State if he fails to appear in court,” says Mutula Jr.

Others though, like lawyer Nzamba Kitonga told the Saturday Standard that there is need to include the limits in the Judiciary’s bail and bond policy guidelines because bail is a constitutional right.

“There should be guidelines on the minimum and maximum bail to be paid by the accused person depending on the offence,” he says.

Lawyer Cliff Ombeta, who was recently forced to go back to the drawing board with his client’s relatives after the bail given by the magistrate in a corruption case ended up being more than what they had anticipated says lack of limits puts lawyers at loggerheads with their clients.

“We thought the court had set a precedent in the case in which 47 suspects are accused of defrauding the National Youth Service of Sh468 million, only for our clients in the fertiliser case to be released on higher terms,” he says.

In the NYS scandal, the Ngirita family and others were released on Sh1 million cash bail, Sh5 million bond plus a surety of Sh2 million.

However Charles Ongwae, who was the Kenya Bureau of Standards boss and nine others were ordered by Senior Principal Magistrate Kennedy Cheruiyot to pay Sh2 million cash bail.

“Accused persons are under the mercy of magistrates yet the Constitution is clear on bail terms. Setting limits will help end these variations,” says Ombeta.

Currently, lawyers can challenge bail terms given to their clients by the magistrates’ courts at the High Court.

The Judiciary’s Chief Registrar Anne Amadi says the institution has policy guidelines on bail and bond that gives its officers the discretion to release accused persons temporarily pending hearing of their cases.

In the policy guidelines released by former Chief Justice Willy Mutunga in 2015 to decongest prisons, the application of laws that provide for bail were intended to guide the police and judicial officers in decision-making and ensure they adhere to constitutional requirements.

The guidelines currently being implemented by a committee chaired by Lady Justice Jessie Lessit as they prepare a Bill that will address the issues comprehensively, give powers to judicial officers to determine the amount of bail and impose any conditions they deem fit.

The conditions include surrendering travel documents in court, reporting to the police on given days, barring accused persons from making any contact with witnesses or victims and changing residence for the duration of the trial. The courts have a duty to provide reasons for issuing bail conditions in order to enhance consistency and transparency in making decisions.

The guidelines were developed after Kenya Prisons Services raised an alarm over the number of remandees that outstretched services in its facilities.

There are more than 50,000 remandees awaiting hearing of their cases. It is the court’s responsibility to ensure sureties understand risks and obligations involved in undertaking to bond their friends and relatives.

Kenya does not have a bail supervision system and this has made some of the accused persons abscond.

There are plans by the Judiciary to have accused persons released on bail to be placed under supervision of the Probation and Aftercare Service, chiefs or police officers.