Ensure fairness in arrest and bail processes in fight against corruption


The recent spate of arrests of suspects in the crackdown on corrupt elements in the civil service and parastatals have raised eyebrows.

Kenyans are wondering whether we are going back to the KANU era, when suspects used to be arrested in the dead of the night, tortured, blind-folded then driven to far-flung cells and taken to court at odd hours without legal representation.

The applications for bail would be promptly denied and pleas of ‘not guilty’ recorded as ‘guilty’. This state of affairs was made possible because there was an unholy alliance between the Judiciary and the Executive.

Bail is a very important feature of the justice system, and is an expression of that fundamental human right; the right to liberty and the English common law right of the presumption of innocence.

Detaining an individual who has not been found guilty by a court is a very serious incursion on liberty and should not be taken lightly.

This liberty is sometimes undermined due to the unseemly coalition of police, victims groups and tabloid media outlets. In the past there has been sustained pressure from the Executive to whittle away that presumption of innocence and right to liberty by making it very difficult for individuals to get bail.

Sexual assault

Sometimes back, the Attorney General of the Government of New South Wales attempted to introduce regulations that were basically to interfere with bail conditions. The changes raised hue and cry. The court was to undertake an assessment of risk before granting bond.

 This change represented a substantial diminution of the presumption of innocence. It went against the sacrosanct principle of law that one’s constitutional liberty cannot be curtailed except in exceptional circumstances.

The Attorney General’s proposals were that there was a presumption against a grant of bail in cases of sexual assault of children; use of a firearm; trafficking commercial quantities of drugs; serious personal violence; that the alleged offence was committed while the accused was on bail or parole; or that the alleged offence carried a potential life sentence, being that an accessory to a crime such as murder was included here.

And even if a person could show that keeping them in custody while they waited for their trial was unjust, they then had to answer the assessment of risk exercise that a court carried out.

The public did not welcome the regulations because they felt that was a serious attack on the right to liberty that all people should enjoy if they had not been sentenced to imprisonment after a fair trial. In effect, it meant that people who were subsequently found not guilty of criminal offenses had to languish in prison for months or years despite their having not committed any offence.

In Kenya, the Friday arrests have come back with vengeance. The senior officers being arrested are well informed people who are unlikely to resist arrest. It beats logic why they would be arrested in the middle of the night and paraded before TV cameras as convicts. These arrests seem to be well planned with the aim of psychologically torturing and intimidating the suspects. The drafters of our Constitution enacted the provision of fair hearing to do away with such abuses in the process of arrest and incarceration.

Prosecution process

The courts, unfortunately, seem to play ball with the Director of Public Prosecutions in denying bail. The constitutional provision that one must not be denied bond unless there is a compelling reason is now being abused to include flimsy excuses like “...investigations are not complete and we are still compiling the files”.

 The decisions on bail, in criminal proceedings, represent an important stage in the prosecution process. The results of these decisions can have far reaching consequences for victims of crime and the public.

From the view point of the suspects or the accused persons, bail decisions made by a Court can result in the deprivation or restriction of liberty for a substantial period of time, resulting in injustice.

Finally, it is for these reasons that the High courts must advance proper decisions as benchmarks of quality of case management and preparation of casework.

The Courts must continue to review the remand status of the suspects and accused persons to ensure the status of the suspects and accused persons are not jeopardised and custody time limit cases are dealt with in accordance with the constitutional and international standards.

 Mr Mwamu is former President of East Africa Law Society and an advocate of the High Court of Kenya.