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Are bail, bond rights of the accused unfair to victims?

By David Oginde | August 1st 2021

There seems to be a worrying trend in which accused persons released on bail commit other crimes – sometimes against previous victims. This is the result of a very liberal legal system that makes all offences bailable.

Prior to the 2010 Constitution, persons charged with murder and other serious offences could not be released on bail or bond. Sadly, this was grossly abused by the State by sometimes raising trumped up charges against its critics and then holding them in remand for prolonged periods – sometimes for years.

In an apparent attempt to remedy this situation, the 2010 Constitution enhanced the right to bail, making it fundamental.

Therefore, courts are compelled to grant an accused person bail or bond unless there are compelling reasons to the contrary.

Unfortunately, the pendulum seems to have swung to the other extreme. According to a review of the bail and bond situation in Kenya by Mman Advocates, bail pending hearing has become almost automatic. When an accused person is presented before court to take plea, if the accused person takes a plea of ‘not -guilty’, the court releases them on bail or bond pending trial. “In this case, the burden of proof lies on the prosecution to establish compelling reasons that would justify denial of bail, or the imposition of suitable bail or bond terms and conditions,” the advocates aver.

Sadly, this legal regime seems heavily tilted in favour of the accused at the expense of the victims. The consequence is that some crime suspects have been released on bail only to commit similar offences or worse.

There was the case some time back of a man accused of murder but who was released on bail, only to kill five other people. Then there is the recent case of the university student who apparently killed his brother and family yet was somehow released from custody.

He then proceeded to kill his university girlfriend. His own parents have wondered how he was released from custody after the first offence.

Cases of crimes committed by persons out on bail are on the increase across the globe, especially where bail laws are similarly liberal. This past Wednesday, a Texas judge granted bail to a man accused of murdering an elderly woman by stabbing her at least 40 times.

Investigators say the man was out on bond on an unrelated burglary charge when the killing happened. What seems ridiculous is that the judge went ahead to grant the man bail…again, despite calling him a threat to public safety. Really?

In another absurd story, this time from India, a man who had killed 16 women over the past several years, was released on bail but went ahead to commit two new murders this past January.

Irish journalist and broadcaster Vincent Browne makes an interesting observation and proposition. He argues that whereas the right to bail is a great law for protection of people who may be wrongfully accused, it is only fair in an environment where the justice system is efficient, and cases are determined within the shortest time possible. Otherwise systems must be put in place to protect the interests and rights of the victims. The US Supreme Court, for example, has permitted the refusal of bail to persons suspected of being likely to commit crimes while on bail.

In Australia, the courts are required to give priority to the interests of the victim, especially the need for physical protection from the accused. This overrides the rights of the accused to bail.

In Biblical days, murderers were liable to instant death penalty meted out by the avenger of blood – usually a member of the victim’s family.

However, God ordered for the provision of a City of Refuge in every village to which an offender could flee and be safe. But they had to remain in there until the death of the High Priest, otherwise they came out at their own peril.

As the world becomes more nefarious, innocent people must be protected from human pests out to harm others. The law and its application must therefore not appear to favour criminals against innocent law abiding citizens.

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