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Petitioner calls for law review to deny capital offenders bail

By Grace Ng'ang'a | September 29th 2021

A petitioner wants MPs to amend provisions of the Constitution to deny suspects of serious crimes bail or bond.

Taratisio Kawe, argues that once freed most suspects interfere with investigations.

The petitioner who is a resident of Embu and a community leader wants the National Assembly to amend provisions of the Constitution and statutes relating to among others bail and bond during criminal investigations and prosecutions.

He is also seeking amendment of Section 123(1) of the Criminal Procedure Code cap 75 under the provisions of bail to include crimes related to theft of public funds, corruption, and fraud as cases which the suspects would not be released on bail.

Mr Kawe argues that investigating some offenses is proving hard when the suspect is free and Parliament needs to remedy the situation failure to which “the country will turn into a state of anarchy in the near future.”

He notes that the bill of rights is bent on protecting the suspects leaving the complainant at their mercy.

Kawe wants the National Assembly to amend clauses 1 and 11 of section 49 of chapter 4 of the Constitution to provide for classification of different types of crimes and offences and the maximum number of days a suspect can be lawfully held before being charged in court or released by any law enforcement agency to allow proper investigation.

“The law should be very precise on the nature of the cases, the bond and the bail terms, the punishment and the time frame in which the case should be concluded in the courts,” he says.

According to section 49 (h) any arrested person has 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.

Kawe further says that more time needs to be given to the police to conduct thorough investigations to present water tight evidence against suspects.

He argues that capital offenders are granted lenient bond or bails which encourages them to commit offences upon release.

“It has become very normal for a person charged with murder, robbery with violence or rape and released to go home and eliminate the key witnesses or silence them by issuing threats shuttering the windows of justice,” he says.

“A constitutional amendment is necessary to remedy for the situation in the country as we seek to stop the escalating cases of cold blood murder and extrajudicial killings,” he adds.

Appearing before Justice and Legal Affairs Committee (JLAC) yesterday the Office of the Director of Public Prosecution said bond and bail are part of the legal frameworks on human rights and there is emphasis on respecting the rule of law.

In his submissions DPP Noordin Haji said that there exists sufficient mechanisms both statutory and policy to ensure that the criminal justice actors uphold the rule of law and respect human rights in the discharge of their mandate.

Haji argued that the right to a fair trial cannot be limited.

The DPP cited Article 49 of the Constitution which gives an arrested person the right to be released on bail or bond pending a charge or trial unless there are compelling reasons not to be released.

Other amendments being sought by Kawe are removing ambiguity by introducing hefty bail and bond on all financial crimes, laying down a precise time frame when the cases should be concluded and review the bill of rights not to favour the suspects at the expense of the victim.

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