Bail should only be curbed under the law

By Pravin Bowry

In the wake of the recent bomb blasts, Deputy-President William Ruto publicly commented that at least two suspects had been released on bail by the courts and implied that the courts should be pro-active in the prevention of terrorism related crimes.

It appeared that the Deputy-President was hinting that an accused in a terrorist related offence should not be granted bail.

The Constitution enshrines the right to bail in Article 49(1) (h) in the following terms: “An arrested person has to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”

The High Court in its decision delivered in 2012, in the case of R vs. Joktan Mayende & three others held that compelling reasons referred to in the Constitution denote “reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the Constitution”

The high standards referred to by the Court as it stated are “…the stringent constitutional requirements in Article 24 of the Constitution on Limitation of Rights and Fundamental Freedoms”.

The law then is that bail is not an absolute right and it can be limited by virtue of Article 24 and can only be limited under legislation to that effect and on clear and specific grounds that are reasonable,  justifiable and in conformity with constitutional limitations.

Releasing an accused on bail or detaining him during trial in the post-independence period rightly generated great amount contentious feelings especially where the prosecution used the detention of an accused in politically motivated prosecution of politicians or activists not in favour with the regime of the day.

Indeed, past Attorney Generals were well known to use their positions to directly and indirectly influence the Judiciary on matters of the accused at the whims of the high and mighty.

Magistrates and Judges who aspired for promotions and greener pastures more often than not, aligned themselves with the prosecutions views and bail was refused.

Hundreds of documented cases can be referred to where accused were arrested and held in remand custody, not ever tried and nolle prosequi (we shall no longer prosecute) entered all in the name of State security or national interests.

The law relating to the granting and not granting bail is now cast in stone in the Constitutional protections and not even the Prevention of Terrorism Act, 2012 or the Prevention of Organised Crime Act, 2010 bars a court from granting bail to a person accused of terrorism related crimes.

Every offence under the law is now bailable. The days when murder and treason suspects were by law not eligible to bail are long gone and suspects are now being routinely granted bail for serious offences.

The Courts at both the subordinate and High Court level are empowered to use their discretion to grant or not to grant bail based on each specific case and generalised rules can be formulated.

It is true to state that,  in terms of modern Kenyan legal thinking the courts tilt backwards to make orders granting bail giving an impression of constitutional compliance, but judicial officers have found a way of imposing extremely unrealistic and unreasonable terms and conditions effectively making bail a right only for the very rich and privileged.

The burden is upon the prosecution to establish on facts and not speculation that the liberty of the accused must be curtailed during the trial.

Sometimes the prosecution is privy to facts about the accused which it cannot reveal to the court based on rules of evidence and on grounds that it will prejudice the trial.

Perhaps in exceptional circumstances courts should be permitted under rules of evidence to be privy to facts which militate against granting bail.

The established principles of law in considering whether or not to grant bail have been set down in law and can be summarised as follows:

a) The probability that the accused might not surrender himself or herself to trial

b) The likelihood of the accused interfering with witnesses or suppressing evidence that may incriminate him or her

c) Detention for the protection of the accused

d) The nature of the charge

e) The nature of the evidence in support of the charge

f) The severity of the punishment which conviction would entail

g) Strength of the evidence against the accused person

There is yet another dilemma that the Judiciary is facing which favours the accused being granted bail.

Even in petty offences where the accused has pleaded “not guilty” the trial drags on for months and sometimes years; delays by the prosecution, magistralial challenges such as leave, Judiciary calendar and inadequate facilities,  granting bail mid-stream a trial is now becoming common.

The Judiciary cannot and should not be dictated on how to grant bail or otherwise blamed.

The prosecutorial authorities must legally have material to oppose bail in serious cases on genuine and sustainable grounds.

The bottom line remains that bail is a right in all criminal cases and it should not be taken lightly or curbed lightly over public outcry.

Mr Bowry is an Adovocate of the High Court of Kenya

— [email protected]