GITONGAH MWANGI

THE RIGHT TO BAIL IN CAPITAL OFFENCES VIS A VIS

UPHOLDING OF THE PUBLIC INTEREST

BY

MWANGI TYSON GITONGAH (LLB NRB Hons)

GITONGAH MWANGI

Table of Contents THE RIGHT TO BAIL IN CAPITAL OFFENCES ........................................................................... 4

1.0 INTRODUCTION ....................................................................................................................... 4

1.1 Background ............................................................................................................................. 4

1.2 STATEMENT OF THE PROBLEM ............................................................................................ 6

1.2.1 Key Research Question ......................................................................................................... 8

1.2.2 Key Research Objectives....................................................................................................... 8

1.3 JUSTIFICATION ........................................................................................................................ 9

1.4 HYPOTHESIS .......................................................................................................................... 10

1.5 METHODOLOGY .................................................................................................................... 11

1.6 LITERATURE REVIEW .......................................................................................................... 11

1.7 CHAPTER BREAKDOWN ....................................................................................................... 18

CHAPTER TWO ............................................................................................................................ 19

2.0 Introduction ........................................................................................................................... 19

2.1 Bail in Kenya ......................................................................................................................... 19

2.2 Difference between cash bail and surety bond in Kenya law ................................................... 20

2.3 Kenya‘s legal framework, laws and practices on bail .................................................................. 23

2.3.1 Pre-Trial Bail ...................................................................................................................... 24

2.3.2 Bail Pending Appeal ........................................................................................................... 24

2.3.3 Bail pending appeal on a plea of guilty ................................................................................ 25

2.3.4 Renewal and appealing for bail ........................................................................................... 27

2.4 Challenges of giving bail ....................................................................................................... 29

2.5 The protection of human rights .................................................................................................. 30

2.6 The presumption of innocence ................................................................................................... 30

2.6.1 Enforcement of the right to presumption of innocence until proven guilty ........................ 30

2.7 Determining the significance and inadequacies of bail................................................................ 31

2.7.1 Disadvantage to the defender ........................................................................................... 31

2.7.2 Advantages to defendant ................................................................................................. 32

2.7.3 Conclusion.............................................................................................................................. 33

CHAPTER THREE ......................................................................................................................... 34

ENFORCEABILITY AND APPLICABILITY OF INTERNATIONAL LAW IN KENYA .......... 34

3.0 Introduction ............................................................................................................................... 34

3.1. Extent to which human rights treaties have been domesticated in Kenya ................................ 34

3.2 Charter of the United Nations .................................................................................................... 36

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3.3 The Universal Declaration of Human Rights .............................................................................. 37

3.3.1 International Covenant on Civil and Political Rights ............................................................ 37

3.4 African Charter on Human and Peoples‘ Rights ......................................................................... 38

3.4.1 Substantive content ............................................................................................................. 39

3.4.2 Individual Rights ................................................................................................................ 39

3.4.3 Rights and Duties ............................................................................................................ 40

3.4.3.1 Equality and protection of the law ................................................................................ 41

3.4.3.2 The right to liberty and security .................................................................................... 42

3.4.3.3 Right to be heard (appeal on bail) ................................................................................. 43

3.5 Conclusion ................................................................................................................................ 44

CHAPTER FOUR ........................................................................................................................... 46

CONCLUSIONS AND RECOMMENDATIONS ............................................................................ 46

4.0 Introduction ............................................................................................................................... 46

4.1 Conclusions ............................................................................................................................... 46

4.2. Recommendations .................................................................................................................... 48

4.2.1 Amendment of conflicting laws ........................................................................................... 48

4.2.2 The need for legislative interventions. ............................................................................. 49

4.2.3 Provision of adequate training ......................................................................................... 50

4.2.4 Alternatives to detention.................................................................................................. 50

4.2.5 Information schemes ....................................................................................................... 50

4.2.6. Proper guidance on police bail ........................................................................................ 51

BIBLIOGRAPHY ........................................................................................................................... 52

Books and articles ....................................................................................................................... 52

Internet sources ........................................................................................................................... 53

Statutes ........................................................................................................................................ 54

List of cases ................................................................................................................................. 54

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THE RIGHT TO BAIL IN CAPITAL OFFENCES

1.0 INTRODUCTION

This research is based on bail as a Constitutional right for all arrested persons. It will focus on

the right to bail in capital offences as provided in the Constitution of Kenya 2010 and its

effect to the public interest in general. The Constitution provides that, an arrested person has

the right to be released on bond or bail, given on reasonable conditions, pending a charge or

trial, unless there are compelling reasons not to be given1. The research will also touch on the

rights to bail for accused persons who have already been arraigned in court to answer to their

charges, for already convicted persons, thus bail pending appeal and how the courts deal and

or have dealt with the bail matter as a whole.

1.1 Background

Bail was found in the legal system of Anglo-Saxon times from the medieval sheriffs‘ desire

to avoid the costly burden of personal responsibility for those who were in their charge. They

were heavily fined if the prisoners escaped. The first enactment for bail was entered into in

1275 in the Westminster statute with the aim of reducing abuse by the sheriffs of their powers

to refuse bail by preventing arrangements between the sheriffs and the accused and thus the

hope of standardizing the practice of bail.2

Bail is the procedure where, the release of a person from legal custody is procured by

undertaking that he shall appear for his trial at the designated time and place. It is setting at

liberty a person who has been arrested or imprisoned and security is taken for his

appearance3. It is an agreement between the accused or his sureties and the court, that the

accused will forfeit the stipulated amount of money to the court if he/she fails to attend his

trial. Bail maybe granted with a surety in some instances and without a surety in others. A

surety is thus, a person who acts on behalf of the accused. He could be an individual or an

1 The Constitution of Kenya 2010, Article 49 (1) (h) 2 Statute of Westminster, Eighth Amendment (1275) 3 Garner, Bryan A, Black’s law dictionary (8th ed, 2004)

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agent, who becomes liable to the court for the full amount and ensures that the accused

attends trial as required, failure to which the amount of the bond is forfeited to the court.

Kenya‘s history on bail is founded in criminal law where, the right to bail is provided through

the presumption of innocence. Presumption of innocence on the other hand places upon the

State the burden of proving each element of the offences against the accused beyond any

reasonable doubt. The rationale of whether to grant bail or not is a wide area that has led to

some controversies in law and in the society at large. It is based on the principle of

presumption of innocence, referred in Latin as Ei incumbit probation qui dicit, non qui negat-

An accused is considered innocent until proven guilty. The Constitution of Kenya 2010 has

provided a new development regarding bail4 where, it provides for the right of an arrested

person to be released on bond or bail, on reasonable conditions, pending a charge or trial,

unless there are compelling reasons not to be released5. Before the promulgation of the

Constitution of Kenya 2010, not all offences were bailable. Non-bailable offences were:

murder, treason, robbery with violence, attempted robbery with violence and any drug related

offences6.

In the latter, it can be said that the new law, offers an opportunity to all arrested persons,

regardless of whether he/she is accused of a misdemeanour or a capital offence, an

opportunity to seek or enjoy their personal liberty as their cases or issues are being solved; a

law that has raised many eyebrows and questions that will be tackled as we progress. The

presumption of innocence is the foundation of all fundamental rights. The Constitution of

Kenya 2010 provides that, ‗every accused person has the right to a fair trial, which includes

the right to be presumed innocent until proven guilty‘7. The same is highlighted in the

4 The Constitution of Kenya 2010, Article 49 (1) (h) 5 Ibid 6 Criminal procedure code, s 123 7 The Constitution of Kenya 2010, Article 50 (2) (a)

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African Charter on Human and People‘s Rights, which provides that, ‗every person accused

of a criminal offence is deemed to be innocent until he is proven guilty or until he pleads so‘.8

For bail to be granted, a court has to have the right jurisdiction to grant it. With regard to

misdemeanour offences, sub-ordinate courts hold the right jurisdiction in exercising the

discretion of whether to grant bail or not though, in case of an appeal coming from a

subordinate court, the high court will have the right jurisdiction in exercising its discretion. In

regard to those of capital offences, the high court usually holds the discretion though it has

powers to delegate such powers to a subordinate court whenever it deems right to do so. After

the issue of jurisdiction is solved, the issue of consideration of the plea of bail has to be

determined and this depends utterly on the discretion of the court in regard to all available

reasonable reasons and conditions where necessary.

1.2 STATEMENT OF THE PROBLEM

The right to bail is provided for in the Constitution of Kenya 20109. The same is founded on

the need to protect the personal liberty of a person who has not yet been found guilty of an

offence he has been charged with. Though it is a fundamental human right, it can be curtailed

on such grounds and in accordance with procedures established by the law10

. For instance, if

the enjoyment of the right to liberty of a person puts another person‘s right, it being the same

right or not, in jeopardy, then the law has powers to limit such a right. In the repealed

Constitution, persons who committed capital offences could not be granted bail.11

It provided

8 The African Charter on Human and People’s Rights, Article 7 (1) (b), (June 27 1981 OAU Doc) 9 The Constitution of Kenya, Article 49 (1) (h) 10 Ibid, Article 24 (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law,

and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society

based on human dignity, equality and freedom, taking into account all relevant factors, including––

(a) the nature of the right or fundamental freedom;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not

prejudice the rights and fundamental freedoms of others; and

(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the

purpose. 11 The Old Constitution of Kenya, section 72 (5) If a person arrested or detained as mentioned in subsection (3)

(b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought

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for the release of arrested or detained persons unless the arrested or detained persons were

charged with an offence punishable by death. The constitutional amendment came after the

High court held, in the case of Margaret Magiri Ngui vs R12

, that the provision of the

Criminal Procedure Code prohibiting the granting of bail in capital offences was held to be

unconstitutional. Further, the burden to demonstrate that the accused is not entitled to bail lies

on the State.

Be that as it may, the possibility of releasing an accused back into society brings about an

opportunity to abuse the same principle that seeks to protect their rights. It is a good gesture

of the service of justice for all but it still raises a number of questions regarding the society‘s

safety. Will the society remain safe by bringing the accused and arrested persons back to the

society? A person accused of murder and upon his own knowledge, knows that he is actually

guilty and that it might be proven to be so, the likelihood of him absconding bail is high. A

good example to portray this worry would be the absconding of bail by a terrorist as was

reported on the September 5th

2011 Daily Nation News Paper had a story of one Muhidin

Gelle13

. The said suspect was arrested in Denmark for attacking a cartoonist condemned by

Muslim extremists‘ absconded bail in Kenya and fled to Europe last September. This spread a

thread of scare to the people and set the general public in a state of unrest at the instance.

Through this, it can clearly be seen that availing bail to persons who commit capital offences

brings about a form of insecurity in the society. Presumption of innocence in capital offences

should not be considered to be an essential part. The public‘s interests should be safeguarded

the best way possible, as this is one of the functions of the law. Subjecting one person or

several to custody in view of ensuring there is security not only in the society but in the

country is an acceptable sacrifice that should not be taken as an injustice. Sacrifices and

against him, he shall, unless he is charged with an offence punishable by death, be released either

unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably

necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial. 12 Margaret Magiri Ngui vs R, Criminal appl. No.35(No.59) of (1985) unreported 13 Mugumo Munene, ‗Terror suspect had jumped bail in Kenya‘ Sunday Nation, 9 January 2010, 1.

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compromises have to be made so as to achieve a certain level of order. Thus, there needs to

be a balance of the rights of the accused and safeguarding the public interest.

Generally, issues of justice, fairness and equality are experienced in all legal fields. Most of

them try their level best to maintain the same. But in this case, granting the same proves

difficult in regard to the conflicting interests that arise. This research seeks to make a study in

regard as to whether; the right to bail in capital offences under the Constitution of Kenya

2010 should be termed as a necessary evil and whether it prejudices the rights and

fundamental freedoms of others.

1.2.1 Key Research Question

i) What are the effects of the right to bail in capital offences on the accused person, the

society and the Judiciary?

ii) Does the right to bail provided to capital offenders override the public‘s interest of

security and or protection by the law? Is it a necessary evil?

iii) How has this issue been tackled in other jurisdictions outside Kenya?

1.2.2 Key Research Objectives

a) The research seeks to make a study of how, due to the new development, the conflict

of interest arising with regards to the protection and or security of the society and the

upholding of the rule of presumption of innocence can be resolved.

b) It will show the role of the new constitution in protecting fundamental rights and

freedoms.

c) It will seek to outline both, the problems and the rewards which the new law on bail

has on the society and the judicial system generally.

d) It will make a study on the extent to which courts have the power or the discretion to

grant or refuse bail and whether there are any gaps in law, concerning the same.

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1.3 JUSTIFICATION

This particular area of study is of great significance as it seeks to show the importance of the

Kenyan Legal System recognizing the society and or the public‘s needs and interests of

provision of better security. It will show out the effects of having the right to bail for capital

offences, both positively and negatively, on the defendants, the society and on the Kenya‘s

legal system as well.

The research is of great benefit as it will show the importance of forming a set of rules/laws

or policies concerning the granting of bail in capital offences not only for the legal scholars

and practitioners but also for the society at large so that, misunderstandings upon

interpretation of the law can be prevented. If the latter is not achieved, this could lead to the

rise of conflicts of interest between the law and the society leading to mistrust in the law and

in the judicial system which is, and should be, a neutral body. It will also be of great benefit

to other researchers who want to discuss issues pertaining to bail in depth.

The research will not only help Kenyans, it can also be used by other researchers from other

countries that do not have properly laid out laws on the issue of bail in regard to capital

offences. It will enable them to recognize the importance of having properly laid out laws that

are effective and in use in a country. The arrested persons and the accused who read this

research paper will be able to know their rights, they will know how to approach the legal aid

system of Kenya and they will also know how to approach the courts.

This research will improve the practice of law as advocates will be able to learn better ways

of dealing with arrested and accused persons. It will also improve practice in that, the arrested

and the accused persons will get educated on their rights and in what ways they can approach

the law through the legal aid systems set up and this will enable them to represent themselves

in instances where, they are not able to employ the services of advocates.

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This research will guarantee that the interests of the society are looked into and protected and

it will better the ways in practice and channel ways that peace (security), justice and fairness

in a country are not only done, but seen to be done.

1.4 HYPOTHESIS

Steps or rules should be clearly set out or put in place in regard to judicial

discretion on granting of bail in capital offences depending on the merits of

each and every case. In other countries, rules are put in place in regard to the

discretion of granting bail according to each and every case presented.

The legal system should uphold public‘s interest and protect the society since,

releasing such accused persons back to the society risks the society‘s security.

It not only endangers the society but the victims and witnesses of such cases in

question are put in danger. The witness protection programme which had been

put in place cannot be said to be sufficient as such and if such liberty for

accused persons is guaranteed, the programme needs, on the other hand, to

ensure protection for the witnesses and the victims.

Since the legal system operates in different levels, the rights for accused

persons should also be provided for in different ways. For instance, different

set of rules should be put in place for different offences as the rules will

stipulate. This way, capital offences will not be treated in the same way with

misdemeanour since; each case will be treated in accordance with its merits.

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1.5 METHODOLOGY

In conducting this research my sources of information in this paper will mainly come from

secondary sources of information including books, journals, articles, case studies, internet

sources and primary sources like statutes.

1.6 LITERATURE REVIEW

The Kenya’s Constitution was promulgated on 27th August 2010 after a period of more than

twenty years in the making. This was culminated by various modifications which sought to

resolve some issues in the Independence constitution but resulted to dissatisfaction that

eventually led to the demand for constitutional reform. Demands for constitutional review

increased in the 1990s from various quarters and an emphasis on the participation and the

inclusion of the views of a wide cross-section of Kenyans became the features of the Kenyan

constitutional review process. The Constitution of Kenya Review Act of 1997 established the

legal basis for this exercise and provided the Constitution of Kenya Review Commission

(CKRC) as the structure that would coordinate the process. The commission as mandated by

the Act visited every constituency in Kenya to receive the views of the people14

from which it

was to compile a draft bill and which would be subject to public hearing. Thereafter, the

National Constitutional Conference (NCC) was set up15

and its membership included; all

members of the National Assembly, representatives of political parties, representation from

each district and the broader civil society.

After the 2002 elections, the National Rainbow Coalition showed a reluctance to adopt the

draft rising from the NCC though it had promised to ratify a Constitution within a hundred

days of forming government. The NCC went ahead to produce a draft constitution, usually

known as the Bomas draft, which was adopted by the required two-thirds majority at the

conference. Later on, two pieces of legislation were passed to facilitate the constitutional

review process; the Constitution of Kenya Review Act 2008 and the Constitution of Kenya

14 Constitution of Kenya Review Act, section 18 (1) (a) 15 Constitution of Kenya Review Act, section 27 (1) (c)

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(Amendment) Act 2008. The outcome of their work was a draft Constitution that was put

through a referendum on the 4th of August 2010 and thereafter promulgated on the 27

th of

August 2010 by the president.

The Constitution of Kenya begins with an insight of the sovereignty of the people and its

supremacy as some of its fundamental principles16

. It is declared to be the supreme law of the

land and to be binding to all persons and all state organs at national and county levels.17

Actions that conflicts with the provisions of the new Constitution are invalid and the

invalidity extends to any laws, including those of customary law, which are inconsistent with

it. There has not been much jurisprudence given out in respect of the 2010 constitution since

its promulgation although, the courts have looked at certain important issues. The right to be

released on bond or bail for all detained persons, on reasonable conditions, pending a charge

or a trial, unless there are compelling reasons not to be released, is one of those rights that

have been invoked immediately in courts. The previous constitution differentiated between

the offences for which the accused persons could be released on bail and those they could

not.18

Bail was not available for those offences for which the penalty was death.19

On the

other hand, arrested persons were required to be brought before a court within twenty four

hours of the arrest for other offences but for the offences punishable by death, a time period

of up to fourteen days was allowed.20

The 2010 constitution does not distinguish offences worth to be granted bail or not. The

arrested persons on the other hand are entitled to be brought before a court as soon as

reasonably possible and not later than twenty four hours after the arrest or at the end of the

next court day.21

Although there are new provisions regarding the right to bail, courts are yet

to bring into line their approaches to the granting of bail and as to what constitutes

16 The Constitution of Kenya, Articles 1, 2 17 The Constitution of Kenya, Article 2 (1) 18 The Old Constitution of Kenya, section 72 (5) 19 The Criminal procedure Act, Cap 75, section 123 (1) 20 The Old Constitution of Kenya, section 72 (3) 21 The Constitution of Kenya, Article 49 (1) (f)

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‗compelling reasons‘. Courts have adopted different approaches in regard to how much

weight should be given as to the seriousness of the offence an accused is charged with.22

For

instance, in the Republic v Moses Kenu Ole Pemba, the charge of murder was considered by

the High Court to be a serious one to constitute a compelling reason for an accused not to be

granted bail.23

In another case, Republic v Joktan Mayende & four others, F. Gikonyo

pointed out that;

In a constitutional transition where the law is still settling, courts are continually engaged in

interpretation sessions aimed at defining the scope of the jural words, terms and phrases used in the

Constitution; which is an exercise that the courts should strive to do with wise circumspection in order

that the meaning and scope assigned to those words, terms and phrases give effect to the objects,

purposes and values of the Constitution.24

The High Court ruled that the high standard under Article 49 (1) (h) of the constitution was

more in accord with the stringent constitutional requirements in Article 24 of the Constitution

on the limitation of rights and fundamental freedoms. The right of the accused to be released

on bail was deemed not to be absolute as the constitution itself limited it. The limitations are

in two respects;

a) The release on bond or bail is on conditions, thus, should be reasonable.

b) The accused will not be released where there are compelling reasons.25

However, the court should determine the conditions of bond or bail or if the reasons adduced

by the prosecution are compelling enough to deny the accused bond or bail as pointed out

earlier. In this case, it was held that, the interference with witnesses aimed at impeding the

course of justice was a justifiable reason to limit the right to liberty of the accused.26

22 M. Murungi and A Halonyere, ‗Courts‘ dilemma in bail applications for serious offences‘, KLR Weekly

Newsletter (18 March 2011) 23 Republic v Moses Kenu Ole Pemba, Criminal Case 60 of 2007 [2010] eKLR 24 Republic v Joktan Mayende & 4 others, criminal case 55 of 2009 [2012] eKLR 25 The Constitution of Kenya 2010, Article 49 (1) (h) 26 Supra .n.25.

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A different approach was taken in Aboud Rogo Mohamed & another v Republic. Here, the

High court considered the applicants to be innocent until proven guilty despite the

seriousness of the allegations made against them, which if they were proven to be true, it

would have made it undesirable for them to have been released on bail.27

The court held that

the most important factor in determining the grant or refusal of bail to an accused should be

based on whether the accused will appear before the court on the trial date28

and therefore,

each case should be considered on its own merits.

Timothy R. Schnacke made a report that traced back the history of bail and pre-trial release to

ancient Rome and the American understanding. It revealed two fundamental themes which

are that first; bail then, reflected the judicial officer‘s prediction of the trial outcome but

today, bail is all about the prediction of a defendant‘s probability of making all court

appearances and not committing any new crimes. The second theme focused on the concept

of using bail bonds as means to avoid pre-trial imprisonment. He concludes by illustrating

that the abuses which arose from the pre-trial release and or the decision making process of

detention, that linked to the inability to protect trial outcome, court appearances and the

commission of new crimes, led to an over reliance on the judicial discretion to grant or deny a

bail bond and the fixing of money that would presumably help mitigate a defendants pre-trial

misconduct.29

In application for bail, the position is that the granting and denying of bail is an exercise of

judicial discretion. Therefore, the power to grant it is a discretion exercised by judicial

officers whose role is to apply the law to the prevailing circumstances in a given case.

27 Aboud Rogo Mohamed & another v Republic, Criminal Case 793/2010 [2011] eKLR 28 Republic v Muneer Harron Ismail & 4 others [2010] eKLR. The accused persons in this case were released on

bail, although the case was decided before the new Constitution was promulgated.

29 Timothy R. Schnacke, The history of bail and pretrial release in 2010 Pretrial Justice Institute

<http://www.pfi.org/cjr/addedarticles/the-history-of-bail-and-pretrial-release.-timothy-r.schnacke-et.-al.-2010-

.-pretrial-justice-institute >

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However, it is noteworthy that various jurisdictions apply this principle selectively and

having special regard to the specific legal provisions of the native country.

Much ink has been spilled in an attempt to either regard it as a necessary evil or vice-versa.

Various writers have attempted to explain and elucidate different legal provisions that are

appurtenant to it. Anouk Desaulniers in his paper Bail Law in Canada: A Human Rights

Perspective30

opines that the bail law in Canada operates under the basic presumption that an

accused person is entitled to bail unless there is a just cause for it. The Canadian Criminal

Code sets out the primary, secondary and tertiary grounds for detention.31

From the foregoing,

it is evident that as with British law, the Canadian jurisprudence initially recognized the

probability of the accused attendance in court as the sole determinant of whether or not bail

ought to be granted.32

The onus is usually on the prosecutor to prove to the court that the rule

of right to bail should be denied, which threshold is held to be very low. The Canadian

regime is not so much different from what is expounded in other legal regimes.

In their widely acclaimed book, Jeremy Sarkin, Yves and Johan Vande33

analyse the

jurisprudence developed by one, Justice Kriegler in the criminal law discourse in South

Africa. In a simple but cogent fashion, he explained that the constitutional position of law of

bail in South Africa. What necessitated the learned judge‘s explanation was the uncertainty

that suddenly faced the lower courts in many cases regarding the proper interpretation of the

right to bail for the accused person in custody especially after the Constitutional rebirth of

South Africa. In his exposition, he was of the view that nowhere in post-apartheid criminal

30 AnoukDesaulniers, ‗Bail Law in Canada: A Human Rights Perspective‘, (2007) The 2nd International Forum

for Contemporary Criminal Law – Implementation the UN Conventions in Criminal Justice 1-5. 30Sub-section 515(10), paragraphs (a) (b) and (c) provides that the detention of a person is justified for a limited

number of reasons. First, where it is essential to secure the accused‘s attendance in court, where detention is

necessary to for the protection or safety of the public, including any victim of, or witness to the offence having

regard to all the circumstances including any substantial likelihood that the accused will, if released from

custody, commit a criminal offence, or interfere with the administration of justice. Paragraph 3 of provides that the detention is also necessary to maintain the confidence in the administration of justice. 30Gary T. Trotter, The Bail Law in Canada,Carswell Publishing, 1998, at p.7

33J.S Hughes, Y Laeck, J. V Lanotte, Resolving the Tension between Crime and Human Rights: An Evaluation

of European and South African issues (2001) at pp. 56-59.

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jurisprudence has there been so much uncertainty as in the adjudication in a criminal trial of

the rights of an accused to a fair trial on the one hand and the right of the public to be

protected from criminals on the other. The requirements for fair criminal processes were

arguably already in existence, in theory, in pre-constitutional era common law.

The Constitution of Kenya borrows heavily from the South African one, which is considered

to be one of the most progressive Constitutions in the world. As such, the application of the

principles anticipated in both laws should be fairly similar; in as far as the provisions tend to

be similar. As with Kenya right now; the criminal justice system in South Africa was not

ready to adjudicate criminal cases with regard to the principles entrenched in the Bill of

Rights when the Constitution came into effect. The transition of the criminal justice system

from one which disregarded the basic tenets of a fair criminal process to one which had to

operate within the strict requirements of the Constitution tested every principle of policing,

arrest, prosecution and incarceration against the right to a fair trial, dignity of the person,

privacy of the person and the need for procedural fairness.

It is a fair summary of history to say that the safeguards of liberty have frequently been

forged in controversies involving not very nice people. Honouring the presumption of

innocence is often difficult; sometimes we must pay substantial costs as a result of our

commitment to the values we espouse. But at the end of the day, the presumption of

innocence protects the innocent; the shortcuts we take with those whom we believe to be

guilty injure only those wrongfully accused and, ultimately, ourselves.34

In her

article,35

Caroline Davidson posits that international tribunals should serve as models for

international human rights best practices. She goes further on to say that, detention and or

arrest is a severe infringement of the right to liberty and security of a person. Of course, these

34United States v Salerno, 481 U.S. 739,767 (1987) (Marshall J., dissenting) quoting United States v Rabinowitz

339 U.S. 56. 69 (1950). 35Davidson Caroline, ‗No Shortcuts on Human Rights – Bail and the International Criminal Trial‘ (July 7,

2010). American University Law Review, Vol. 60, No. 1, 2010. Available at SSRN:

http://ssrn.com/abstract=1639664 accessed 1 April, 2013.

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rights are not absolute, the guarantee that no one shall be deprived of his liberty except on

such grounds and in accordance with procedures as established by law.

Granting and or denial of bail is to be squarely placed and premised on these legal provisions

with minimal or no deviation whatsoever. As such domestic jurisdictions, while following the

best practices set by the international tribunals, require a balancing of the right of the

individual to liberty vis a vis the interests of the state in provisional release decisions.

Goldkamp and Gottfredson in their article36

write that buffered and perhaps isolated by the

doctrine of judicial discretion, bail judges are routinely asked to perform their tasks in the

face of several simultaneous considerations. First, at stake in their decision is a commodity no

less than the liberty or confinement of persons accused (not convicted) of crime. Second, the

decision maker is faced with doubts over the legally ‗legitimate‘ purposes of bail decision.

By dint of these, the judge, at the very least is required to balance two difficult predictive

concerns – concerns for the defendant‘s appearance at court and concerns for the safety of the

community. This will involve the judges balancing act between granting bail, thus rendering

it a necessary evil or denying it to the accused altogether, thus also constricting his or her

rights to liberty.

In light of the above, it is clear that very important issues on bail have arisen since time in

memorial and the bail reform strategies that have been employed in various judicial systems.

This provides a good foundation in tackling issues in regard to bail in this research.

36John S. Goldkamp and Michael R. Gottfredson, ‗Bail Decision Making and Pre-trial Detention: Surfacing

Judicial Policy‘ Law and Human Behaviour, Vol. 3, No. 4 (1979), pp. 227-249. Available at

http://www.jstor.org/stable/1393688 accessed 1 April, 2013.

GITONGAH MWANGI

1.7 CHAPTER BREAKDOWN

I. The first chapter will be an introduction which will entail a general discussion on the

right to bail of arrested persons in Kenya. This chapter will basically lay the

foundation for the discussion that will be advanced throughout the whole research

paper.

II. Chapter two will focus on Kenya‘s legal framework, laws and practises with a view to

determining its significance and inadequacies on matters relating and or touching on

the right in the question.

III. Chapter three will examine other jurisdictions internationally in regard with the right

to bail for arrested persons and seek to highlight the differences in the laws and how

effective or otherwise, their practises are in the different legal systems.

IV. Chapter four will be a comparative analysis between Kenya and other jurisdictions.

The essence of this discussion will be to highlight whether the right of bail to all

arrested persons works well in other countries or not. This chapter will also have a

conclusion on the research and the recommendations that are necessary to facilitate

the efficient and effective dispensation of justice with regard to bail.

GITONGAH MWANGI

CHAPTER TWO

THE LEGAL FRAMEWORK ON BAIL IN KENYA AND THE CHALLENGES FACED ON

GIVING BAIL

2.0 Introduction

Unless it falls within the specified legal exceptions, interference with the liberty of an

individual is unconstitutional. The law guard against such interferences; and in order for it to

carry out its role of a guardian more effectively, the law is aided by criminal procedures. Bail

as projected earlier, is where an arrestee or his/her family or friends, gives money or property

to the court as an assurance and a guarantee that the arrestee will appear in court for his trial.

It is a mechanism used to ensure that an arrested person will attend court during his trial. Bail

bond on the other hand is defined as a guarantee made by a third party also known as a

surety, to pay the bail amount as stipulated by the court on behalf of the arrested person.

2.1 Bail in Kenya

In Kenya, the law relating to bail is founded on the Constitution and the Criminal Procedure

Code. Bail may be defined as an agreement between the accused (and his sureties as the case

may be) and the court and that the accused will pay a certain sum of money fixed by the court

should he fail to attend his trial.37

A person may be arrested and his liberty curtailed by a police officer if he has reasonable

suspicion that the person is about to commit a felony or has committed it. 'The interpretation

of reasonable suspicion' as given in M’Ibui –vs- Dyer38

seems to suggest that even if the

suspicion is incorrect, it matters not so long as it was reasonable in the circumstances.

Previously in the old constitution the granting of bail of persons charged with murder was not

allowed, this was seen later as a violation of the rights of arrested persons Constitutional

37

Douglas Brown, Criminal procedures in Uganda and Kenya, 1970, (Sweet and Maxwell, London) (2nd Ed).

38 (1967)EA315.

GITONGAH MWANGI

court in the case of Margaret Magiri Ngui v R39

declared section 123 of the Criminal

Procedure Code inconsistent with the constitution and therefore null and void by virtue of

section 3 of the then Constitution of 1964.

In the case Margaret Magiri Ngui was together with others charged with robbery with

violence, which was not a bailable offence in terms of section 123 of Criminal Procedure

Code. While in custody, she suffered severe ulcers and high blood pressure. She applied for

bail, which was refused. An application was made to the High Court under section 84(1) of

the old Constitution of 1964 challenging the constitutionality of section 123 of Criminal

Procedure Code. It was argued on her behalf that in denying bail to persons accused/charged

with capital offences, the section was inconsistent with section 72(5) currently Article 51 (1)

of the constitution which allowed bail to persons charged with all offences. It was further

contended by the applicant that the classification of offences into bailable and non-bailable

was a feature alien to the constitution. The constitutional court agreed with this argument and

held section 123 to be inconsistent with the constitution and declared it to be null and void.

2.2 Difference between cash bail and surety bond in Kenya law

An individual arrested for crime is usually booked for custody and a background check is

done to make sure that he/she does not have an outstanding warrant or is wanted by law

enforcement in a different area. If the background is clear, the court then sets the bail

(through). It is usually done by a magistrate or other officials. Generally, bail is supposed to

be set for an amount believed to be necessary to guarantee the defendants appearance in

court. If he does not appear, any money held is forfeited by the court as a penalty. There are

some theories behind bail in terms of its use and or its essence as a practice. They include;40

That innocent people should not be imprisoned.

Detention without trial violates the rule of law.

39 Criminal Appeal No.59 of 1985. High Court of Kenya, Nairobi, unreported. 40 IBJ legal training resource center http://elearning.ibj.org

GITONGAH MWANGI

It is usually expensive to keep people in prison.

It can be a financial hardship on the defendant's family if the defendant is unable to

work.

Those remanded into custody are afforded less of an opportunity to prepare their case,

and thus, they are more likely to be convicted.

Bail is important because it allows people not only to keep their promise to the court, but to

those around them too. It also allows and helps the defendant to prepare properly for a

defense as he awaits trial.41

In granting bail, the courts, other than through their discretion,

have to consider several issues before doing so. They have to consider all matters

surrounding the defendant and the case in question before granting or denying the bail. Some

of the issues considered by the courts include;42

The connection between the defendant and the community.

A prior criminal record of the defendant.

The financial and employment status of the defendant.

The seriousness and nature of the offense.

The probability of conviction and the likely sentence.

Whether the defendant has ever missed to make an appearance before.

With due respect to understanding the proviso provided in Article 49 (1) (h) of the new

constitution, thus, all arrested persons being accorded the right to bail ‗on reasonable

conditions‘ unless there are ‗compelling reasons‘ not to be released, the learned judges who

have had occasion to interpret the provisos, appear not to be certain or sure as to what they

mean exactly and what kind of reasons were envisaged by the framers of the constitution.

41 Ibid n1 42 Ibid n2

GITONGAH MWANGI

It seems then that the understanding of these two phrases depends on who will interpret them

leading/or thus paving way to some confusion on the same. Previously, however, several

reasons have been suggested for refusing bail. These include;

a) Fear of absconding bail: the objective of giving a person bail is generally to guarantee

the attendance of that person at his trial. Consequently, any bail or remand that fails to

guarantee the same is deemed to be unsatisfactory. This was as argued by Lord

Russell in R v Rose where he stated, ‗The requirements as to bail are merely to secure

the attendance of the person at the trial‘.43

b) Possibility of committing further offences: Some of the accused persons are usually

likely to commit other offences while on bail. Due to this, the society‘s protection is

safeguarded by the denying of bail. Justice Atkinson in R v Philips observed about a

defendant who committed nine offences while on bail that, ‗…to let such a man to

loose on society until he has received his punishment for an offence which is not in

dispute is in view of this court very inadvisable‘.44

c) Interference with witnesses:

• Interferences with witnesses: This is another ground for refusing bail though it is hard for

the court to evaluate. The British home office working partly on the issue of bail in its

recommendations that:

‗The possibility of the defendant interfering with witnesses will usually be relevant only

where the alleged offence is comparatively serious and there is some other indications such as

43 Right to bail under the Kenyan laws Posted By: luyali

44

GITONGAH MWANGI

past record of violence. Where there is a substantial ground for fearing such interferences,

this seems to be a very strong.45

2.3 Kenya’s legal framework, laws and practices on bail

Under the old constitution, not all offences were bailable. Bail was only available for the

minor offences46

. The constitutional amendment to remove bail from bailable offences came

after the High Court held, in the case of Margaret Magiri Ngui vs R47

, that the provision of

the Criminal Procedure Court prohibiting the granting of bail in capital offences was

unconstitutional. Before this, any one charged with the offences of treason, murder and

robbery with violence, bail was never granted, it was absolute. Courts are continuously

engaged in interpretation sessions aimed at defining and making clear of the terms and

phrases used in the constitution.

In the Constitution of Kenya 2010, bail is a right provided for all arrested persons48

.

Therefore, all arrested persons are now entitled to seek their release on bond or bail on

reasonable conditions pending any charge or trial. The law of bail in Kenya through reforms

has brought into effect the fact that, there is no offence that is now not bailable. However, the

right is not absolute since a person has the right to be released unless there are compelling

reasons not to be released. This right to bail is usually granted in various stages of trial which

are; pre-trial bail, bail pending trial, bail pending appeal and bail pending appeal on a plea of

guilty.

45 Luyali, ‗Bail defined‘ Right to bail under the Kenyan law,‘ 2011 46 The Old Constitution of Kenya, section 72 (5) If a person arrested or detained as mentioned in subsection (3)

(b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought

against him, he shall, unless he is charged with an offence punishable by death, be released either

unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial. 47 Margaret Magiri Ngui vs R, Criminal appl. No.35(No.59) of (1985) unreported

48 The Constitution of kenya 2010, Article 49 (1) (h) an arrested person has the right to be released on bond or

bail, given on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be

given

GITONGAH MWANGI

2.3.1 Pre-Trial Bail

Generally, bail is granted by the police before trial and the magistrate‘s court during trial. The

provisions of article 49 (1) (h) of the Constitution provides for the release on bond or bail,

‗pending a charge or trial‘ meaning, the right can be granted even before the arrested person

is arraigned in court. This kind of bail is usually given to an accused person before trial. In

the Criminal procedure code, it allowed arrested persons, other than those accused of murder,

treason, attempted robbery or robbery with violence, to be released on bail or bond while still

in the police custody and or before being charged in court49

. The High Court is empowered to

review cases where bail is denied by the police or the magistrate‘s courts. In practice where

bail is denied the application may be renewed before the trial court and where the bail terms

are considered to be unreasonable, an application is made for the reviewing of the terms and

an appeal lies to the High Court. On the other hand, the Police Act50

empowers a police

officer investigating an alleged crime, not being a disciplinary offence, to require any person

to execute a bond in such sum and in such form or manner as may be required with

conditions that the accused will attend court if and when required. In addition, it prohibits the

charging of a fee when giving such bail bond51

.

2.3.2 Bail Pending Appeal

Bail pending appeal primarily depends upon the cogency of the grounds of appeal, although

ultimately its grant will depend on the exercise of the court's discretion on the particular facts

of the case.52

49

Civil Procedure Code, Section 123 (1) When a person, other than a person accused of murder, treason,

robbery with violence or attempted robbery with violence or any drug related offence is arrested or detained

without warrant by an officer in charge of a police station, or appears or is brought before a court, and is

prepared at any time while the custody of that officer or at any stage of the proceed before that court to give bail,

that person may be admitted bail: Provided that the officer or court may, instead of taking bait from the person,

release him on his executing a bond without sureties for his appearance as provided hereafter in this Part.

50 The Police Act, s. 23 51 The Police Act, s. 24 Notwithstanding anything to the contrary contained in any law in force, no fee shall be chargeable on any bail bond in a criminal case, recognizance to prosecute or give evidence, or recognizance or

personal appearance or otherwise, issued or taken by a police officer. 52

Thompson D.R, Proceedings in the Criminal Division of the Court of Appeal, Sussex,

Barry Rose Publishers Ltd, 1970.

GITONGAH MWANGI

a) the presumption of innocence conferred on him by the Constitution. The burden

would thus be upon the convicted person to show that the conviction was wrong.

b) Bail pending appeal should only be granted in rare and exceptional circumstances and

the party seeking bail must show this rare circumstances.

c) The appellant must show that the appeal has good chances of success as pointed out in

the case of Antony Mwiti Njeru vs. Republic.53

d) The severity of a sentence is not supposed to be the basis for denying bail but simply

one of the factors to be taken into consideration in determining whether bail should be

granted and if so granted, to help determine the terms upon which the court grants

bail.

2.3.3 Bail pending appeal on a plea of guilty

Bail pending appeal also primarily depends upon the cogency of the grounds of appeal,

although ultimately its grant will depend on the exercise of the court's discretion on the

particular facts of the case.54

The principles governing the grant of bail pending appeal differ

from those governing bail before conviction. Bail pending appeal may be granted after

considering:

(a) Whether leave to appeal has been granted,

(b) Whether there is a strong likelihood of success of the appeal,

Where there is a risk that if bail is not granted, the sentence will have been served by the time

the appeal is heard.

53 Antony Mwiti Njeru vs. Republic, Misc. App No. 301 (2011) 54Thompson D.R, Proceedings in the Criminal Division of the Court of Appeal, Sussex, Barry Rose Publishers

Ltd, 1970.

GITONGAH MWANGI

Even in these circumstances, bail is not always automatic. In the case of Shah –vs- R55

it was

suggested that rather than grant bail, steps should be taken to see that the hearing of the

appeal is expedient and it was further added that bail should be granted only in exceptional

cases. In Somo -vs- R, Trevelyan J noted:

―It seems to me that where these applications are considered it must never be

forgotten that the presumption is that when the applicant was convicted, he

was properly convicted… That is why, where he is undergoing a custodial

sentence, he must demonstrate... that there are exceptional or unusual

circumstances in the case.‖56

These exceptional or unusual circumstances are different from those that pertain to pre-trial

bail and as noted by Sheridan J, "Different principles must apply after conviction ...57

‖.

The most fundamental ground for consideration is whether the appeal has an overwhelming

chance of success, and where this is shown then there is no justification for depriving the

applicant his freedom. In Motichand-v- R, Muli –J-58

(as he then was) granted bail on the

ground that the appeal had a probable chance of success. Muli -J- refused to follow the

decision in Lamba. He noted that if the test in Raghbin Singh Lamba –vs- R59

were to apply,

it would virtually mean that in all applications for bail, the overwhelming probability of

success of the appeal must be conclusively demonstrated. In doing so, it would be tantamount

to constituting the court hearing the application for bail, a Court of Appeal. He further noted

5513th August 1976 C. A (un reported). 56(1972) EA 476 at 480. 57Masran -vs- R (1960) EA 321. 58Motichand -v- R (1972) EA 399. 59Raghbin Singh Lamba -vs- R (1958) EA 337.

GITONGAH MWANGI

that it would amount to a deprivation of the fundamental rights and freedoms of the

individual which the Constitution guarantees, he said;

―Section 357 (Criminal Procedure Code) permits the admission to bail

pending appeal and I see no justification in applying too stringent a test to

defeat this statutory provision...‖60

It was further noted that a single factor is not enough to warrant a grant of bail but the totality

and cumulative considerations of all the facts of the case.

2.3.4 Renewal and appealing for bail

The Criminal Procedure Code provides that an appeal will not be allowed if the accused is

convicted on his own plea of guilty. An appeal will only be allowed as regards the legality of

the sentence61

. In the case of Merali –vs- R62

the applicant had been charged and convicted of

an Exchange Control offence on his own plea of guilty. He filed an appeal claiming inter-alia

that the plea was equivocal. He applied for bail pending appeal. Notwithstanding the plea of

guilty, the court held that where and if the requisite tests were met, bail would be allowed.

Harris -J- was alive to the fact that by virtue of section 348 (Criminal Procedure Code) an

appeal would not be allowed on a plea of guilty. However, this bar is only to the extent that it

(plea) is not bereft of legality - that is; it must be unequivocal and be freely given by the

defendant. The defendant himself must infact plead and it is not enough that counsel pleads

on his behalf by indication or otherwise. This was the decision in R –vs- Heifer.63

Harris J

gave four conditions to be considered:

(a) Character of the applicant;

(b) The possibility of a substantial delay in the hearing of the appeal;

60See Note 5 (Supra). 61 Section 348 (Cap 75). 62 (1972)EA 47. 63(1951)1 KB 29.

GITONGAH MWANGI

(c) Whether the offence with which the applicant was charged involved personal

violence; and

(d) That the appeal is not frivolous or vexatious and has a reasonable possibility

of success.

The application was allowed and while agreeing that no precedent existed before this case

(for grant of bail pending appeal on a plea of guilty) the court observed that:

―Notwithstanding that no precedent has been found... for granting of bail

pending an appeal from a conviction based on a plea of 'guilty'... subject to

proper safeguards, the present application should be allowed.64

In Raghbin Singh Lamba -vs- R65

the arguments for bail pending appeal were that the appeal

could more easily be prepared if the applicant was on bail, previous good character of the

applicant and the hardships to his dependants if he remained in prison. In his judgment, Spry

-J- held that the principle to be applied is that 'bail pending appeal should only be granted for

exceptional and unusual reasons'. He further noted that neither the complexity of the case nor

the good character of the applicant, nor the alleged hardship to his dependants could justify

the grant of the bail. Had the court been "satisfied" that there was an overwhelming

probability that the appeal would succeed, the application would have been granted. The

present application was dismissed for want of satisfaction to the court that there was an

overwhelming probability of success. The decision which was later denied force by Muli -J-

in Motichand66

.

While insisting on unusual reasons, Spry -J- was of the view that when a person is awaiting

trial, the onus of proving his guilt ultimately rests with the prosecution and consequently, the

64(1972) EA 47 at 49. 65(1958)EA337. 66(1972) EA 399.

GITONGAH MWANGI

onus of showing cause why bail should not be granted. On the other hand, when a person has

been convicted the onus is on him to show cause why the conviction should be quashed and

similarly, its upon him to show cause why as a convicted person, he should be released on

bail.

―The fact remains that the prisoner has been convicted and the onus is on him

to show that he was wrongly convicted.67

As noted above therefore, a single factor may not suffice to warrant grant of bail pending an

appeal and several factors must be considered before the discretion is exercised.

2.4 Challenges of giving bail

The question whether the Court of Appeal can grant bail pending appeal was discussed in the

case of Michael Otieno Ademba –vs- R68

. In this case the appellant pleaded guilty to a charge

of impersonating a person employed in civil service, contrary to section 105(b) of the Penal

Code. He was sentenced to twelve months' imprisonment. He appealed against the sentence

to the High Court, which declined to grant bail pending the appeal. He subsequently appealed

against the judge's refusal to grant bail. Porter, Kneller and Hancox JJA held that the Court of

Appeal has no jurisdiction under Criminal Procedure Code, or the rules of the Court of

Appeal69

to entertain an appeal from a refusal of the High Court to grant bail pending an

appeal to that court.

67 Supra (note II) at page 337. 68 Court of Appeal Reports (1983) Vol 1, at 187, [ (1983)1 C.A.R. 187]. 69

Rule 5 of Court of Appeal rules deals with bail pending the hearing and determination of an appeal before it.

GITONGAH MWANGI

2.5 The protection of human rights

From a human rights point of view, the right to bail springs from the presumption of

innocence. Further, it is the burden of the state to demonstrate, that accused is not entitled to

bail. The High Court in R vs Victor Odeougu & Another had occasion to state;

―Unless it can be shown that an accused person will be tried within a

reasonable time, if he is facing any offence not punishable by death, then he

is entitled to bail as a matter of law (the law were being Section 72(5) of the

constitution), and the courts (subordinate or the High court) have no

discretion in the matter. The only discretion given to the court under the said

provision of the Constitution is as to whether the accused should be released

unconditionally or conditionally.‖

2.6 The presumption of innocence

It is a principle that requires the government to prove the guilt of a criminal defendant beyond

reasonable doubt and relieves the defendant of any burden to prove his/her innocence.

According to the U.S Supreme Court, the presumption of innocence of a criminal defendant

is best described as an assumption of innocence that is indulged in the absence of contrary

evidence.70

2.6.1 Enforcement of the right to presumption of innocence until proven guilty

2.6.2 Rebuttable presumptions of law

They are inferences that must be drawn in the absence of conclusive evidence to the

contrary. A good example is the presumption of innocence, that every person accused of a

crime is innocent until proved guilty. Until there is conclusive evidence dispelling the

innocence of the accused person, the person should be assumed innocent. Essentially these

70 Taylor v. Kentucky, 436 U.S. 478, 985.

GITONGAH MWANGI

presumptions are said to be mandatory until you have other conclusive evidence to the

contrary.

Fair hearing

Under our constitution,71

every person has the right to have any dispute that can be resolved

by the application of law decided in a fair and public hearing before a court or, if appropriate,

another independent and impartial tribunal or body.

(2) Every accused person has the right to a fair trial, which includes the right—

(a) to be presumed innocent until the contrary is proved.

2.7 Determining the significance and inadequacies of bail

2.7.1 Disadvantage to the defender

There are instances where, some defendants are unfortunately denied the right to seek bail.

Those who remain on demand have difficulties in getting or finding resources to prepare for

their defenses.72

They may make a less favourable impression when they appear in court (they will probably

be less well dressed and have experienced a loss of morale). They also miss the opportunity

to impress the court by showing that they have met their bail conditions and appeared in

court.73

They endure absence in their family life; suffer stigmatization and possible contamination by

contact with criminals.74

71 50. (1) (a) the constitution of Kenya 2010

72 Pearson (1990) 79 CR (3d) 90, cited in S Zindel, ‗A principal approach to bail‘ (1993) February New Zealand

Law Journal 49 at 51

73 Pearson (1990) 79 CR (3d) 90, cited in S Zindel, "A principled approach to bail" (1993) February New Zealand Law Journal 49 at 51; see also Nyman, op cit n 17. 74 Ibid note 16

GITONGAH MWANGI

It has been argued that detaining accused persons before trial is an important means by which

the prosecution can procure a guilty plea.75

Kellough and Wortley have found that those

persons not held in pre-trial custody are much more likely to have all their charges withdrawn

by the prosecution.76

Such findings are, in part, supported by studies which have shown that,

controlling for factors such as charge and criminal record, those remanded to custody are

much more likely to be convicted and sentenced to prison than those who have been released

prior to trial.77

Furthermore, research in Australia has consistently shown a relationship

between refusal of bail and negative court outcome, when controlling for the effects of

offence seriousness, legal representation, previous convictions and plea.78

2.7.2 Advantages to defendant

For those who bail is granted, it enables or allows them to keep promises made to both the

court and their families. They are given a chance to be able to continue taking care of their

families and other responsibilities in their life. For instance, such a person would be able to

report to his work place and to cap it all, secure his job.

It also allows the defendant to make proper preparations for his defense since with his

freedom; he is able to seek all the available resources for his preparations and/or any legal

help if need be.79

Other than this, it could be said that bail, protects the rights of defendants

and also helps to protect their physical safety by removing them from overcrowded jails.

75

G Kellough and S Wortley, "Remand for plea" (2002) 42 British Journal of Criminology 186. 76

Ibid at 186. 77

Ibid at 187; see also in New Zealand, P Oxley, Remand and Bail Decisions in a Magistrates Court, 1979, Research Series No 7, Research Unit, Planning and Development Division, Department of Justice, Wellington, New Zealand. 78 J Stubbs, "Review of the operation of the NSW Bail Act 1978" in M Finlay, S Egger and J Sutton, Issues in Criminal Justice Administration, 1983, Allen and Unwin. 79 Eric Granof, USA Today Magazine, ‗The Truth About the Bail Bond Industry: What Everyone Should Know‘

GITONGAH MWANGI

2.7.3 Conclusion

In regard to the issue of those who bail is refused, the situation can be eased by improving the

remand amenities or by assisting in trial preparations. Through this, they are able to prepare

for their trial in better ways. Those who are in custody but are subsequently acquitted could

be compensated for lost time and inconveniences suffered and lastly, speedier trials could

also help in a big way so that those in custody can receive justice in good and or in

reasonable time. All this can be implemented through a good justice system in a country

which is ready to provide justice and fairness to all its subjects.80

In the case of grant of bail

to an accused, it has been seen to have an advantage of reducing costs relating to

incarceration. This saves the taxpayers money which can be better spent on other important

developments in a country.81

80 George Brignell, Bail ‗An examination of Contemporary Isues‘ No. 24, November 2002 81 Supra .n.18

GITONGAH MWANGI

CHAPTER THREE

ENFORCEABILITY AND APPLICABILITY OF INTERNATIONAL LAW IN

KENYA

3.0 Introduction

International law is commonly referred to as to the system of implicit and explicit agreements

that bind together sovereign states in adherence to recognized values and standards,

commonly referred to in Latin as jus inter gentes meaning agreement among nations.82

Sources of International Law are the material and processes out of which the rules and

principles regulating the international community are developed. Under the 2010

Constitution, international law is deemed to be part of the Kenyan legal system, indicating a

shift from the former dualist approach. Although international law is deemed to have direct

application without the necessity of domestic legislation, there are problematic issues and

ambiguities that have an implication for the extent to which international law may be

applicable. It is necessary to examine these critical issues in order to provide a framework for

a coherent understanding and application of international law in Kenya. This chapter will

highlight on the applicability and enforceability of the various international laws in Kenya. It

will focus on the various human right treaties and statutes that address the same.

3.1. Extent to which human rights treaties have been domesticated in Kenya

Before the 2010 Constitution was adopted, Kenya was a dualist state, requiring implementing

legislation before any ratified treaty could have the force of law nationally. Kenya passed

implementing legislation for some treaties (Notably the Convention on the Rights of the

Child – Through the Children‘s Act 2001, The Rome Statute (Through International Crimes

Act 2009), but the overall effect was lack of unification as any treaty could be implemented

82 http://www.thefullwiki.org/international_law Last accessed on 15/08/2013 at 1950hrs

GITONGAH MWANGI

through a series of laws. There was no specific domestic legislation for implementation of the

ICCPR, though some of its provisions were reflected in various pieces of legislation.83

The 2010 Constitution transformed Kenya from a dualist to a monist State by providing that

all treaties ratified by Kenya would form part of the law of Kenya.84

This means that there is

no longer need for implementing legislation and international treaties can now be invoked

before the courts, tribunals and administrative authorities in the Republic. However, Article

2(5) and 2(6) of the Constitution has to be given full effect and clarity through legislation.

This is more so since constitution requires the state to enact and implement legislation to

fulfill its international obligations in respect of human rights and fundamental freedoms.85

This means that where a treaty is non-self-execution, requisite legislation has to be passed

particularly for human rights treaties. In light of Article 2 of the Constitution and the

principle of the sovereignty of our parliament, a middle ground must be reached perhaps

requiring all ratified international instruments to be approved by Senate or as proposed in the

Ratification of Treaties Bill, by the Cabinet. These provisions must however be clarified

through legislation.

All sovereign power belongs to the people of Kenya and shall be exercised only in

accordance with the Constitution.86

Sovereign power under this Constitution is delegated to

State organs, which shall perform their functions in accordance with the Constitution still

under the same article, the judiciary among the key component organs of enforceability. The

constitution is therefore the supreme law of the land87

and the validity is without question not

subject to challenge by or before any court or organ. Sub article 5 of Article two of the

83

Report to the Human Rights Committee to inform its Review of Kenya‘s Third Periodic Report on implementation of the Provisions of the International Covenant on Civil and Political Rights 84

Art. 2(6) of Kenya‘s 2010 Constitution 85

Article 21(4) of the of the Constitution of Kenya 2010 86

Article 1 Constitution of Kenya 2010 87

Article 2 Constitution of Kenya 2010

GITONGAH MWANGI

Constitution of Kenya 2010 explicitly states and gives meaning to international law under our

jurisdiction, to form part of our existing laws in Kenya obviously as long as they are not

driven with inconsistency of our laws as prescribed in the constitution.

3.2 Charter of the United Nations

The Charter states that:

―We the peoples of the United Nations are determined to save succeeding generations from

the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to

reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in

the equal rights of men and women and of nations large and small, and to establish conditions

under which justice and respect for the obligations arising from treaties and other sources of

international law can be maintained, and to promote social progress and better standards of

life in larger freedom,88

Every person is equal before the law and has the right to equal protection and equal benefit of

the law. In a democracy, everyone is equal. Democracy turns away any forms of bias and

provides a base for honesty, fairness and equality. Justice is a set of rules that provide each

person in humanity with basic rights. These include: Human rights, the rule of law, Economic

justice, and Gender fairness. Thus, there is interplay between upholding the rights of an

individual and protection of the rights of the general public. Everyone has the right to life,

liberty and security of the person and the right not to be deprived thereof except in

accordance with the principles of fundamental justice. The greater public must be protected

when considering awarding of bail.89

A defendant is usually entitled to bail. However, courts

have power to deny bail to protect the community. The courts are given the discretion to deny

bail to a defendant who presents a danger to any person or the community. This is known as

88

Preamble of the Charter of the United Nations 89 Sharma R, Human Rights and Bail

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pretrial detention or preventive detention. Most courts also consider personal or community

safety in bail decisions. A defendant can get bail, even if considered dangerous, if there's a

condition or combination of conditions that will reasonably assure the safety of the

community.

3.3 The Universal Declaration of Human Rights

In its declaration, it stated that all human beings are born free and equal in dignity and rights.

They are endowed with reason and conscience and should act towards one another in a spirit

of brotherhood.90

To give legal binding to the Universal Declaration of Human Rights, the UN Assembly in

1966 adopted other covenants which defend and guarantee the protection of human rights.

These are the International Covenant on Civil and Political Rights and the International

Covenant on Economic, Social and Cultural Rights.

3.3.1 International Covenant on Civil and Political Rights

The Covenant was adopted by the U.N. General Assembly in 1966 and went into force in 1976. As of

August 2013, 167 countries have ratified the Covenant.91

The ICCPR obligates countries who have

ratified the treaty to protect and preserve basic human rights such as the right to life and to human

dignity, equality before the law, freedom of speech, assembly and association, religious freedom and

privacy, freedom from torture, ill-treatment and arbitrary detention, gender equality, fair trial and

minority rights. The Covenant compels governments to take administrative, judicial and legislative

measures in order to protect the rights enshrined in the treaty and provide an effective remedy.

Article 14 states that all persons shall be equal before the courts and tribunals. In the determination of

any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be

90

Article 1 of the Universal Declaration of Human Rights 91 http://www2.ohchr.org/english/law/ccpr.htm Last accessed on 15/8/2013 at 1218hrs

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entitled to a fair and public hearing by a competent, independent and impartial tribunal established by

law.92

This upholds the rule of equality before the law which is a fundamental human right.

It further states that everyone has the right to liberty and security of person. No one shall be subjected

to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in

accordance with such procedure as are established by law.93

Any person who may be admitted to bail may be released either on the person's own recognizance or

upon posting bail, on condition that the person appear in court for future court proceedings in the case,

and on any other conditions imposed in the discretion of the magistrate or court that will reasonably:

a. ensure the appearance of the accused;

b. ensure the integrity of the court process;

c. prevent direct or indirect contact with witnesses or victims by the accused, if appropriate; and

d. ensure the safety of the public

3.4 African Charter on Human and Peoples’ Rights

The Assembly of Heads of State and Government of the Organization of African Unity

(OAU) meeting in Nairobi, Kenya, on 27 June 1981, adopted the African Charter on

Human and Peoples' Rights (ACHPR). It entered into force on 21 October 1986. Although

inspired by other human rights conventions, the African Charter has a dist inct character.

Unlike other regional conventions such as the American Convention on Human Rights

(ACHR) and the European Convention on Human Rights (ECHR), the African Charter

recognizes civil, political, social, economic and cultural rights. It also accords recognition

to collective rights such as the right to development, self-determination, and a satisfactory

environment. It further recognizes the duties of the individual towards his family, society

and the state.

92

Article 14 of the International Covenant on Civil and Political Rights 93 Article 9 of the International Covenant on Civil and Political Rights

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We can therefore not talk about the rights of accused persons in the granting of bail without

the African Charter (Banjul), in respect to recognition and determination of rights as seen

under Article 51 of our constitution regarding fair hearing and Article 2 with regard to the

use of international law in our jurisdiction.

3.4.1 Substantive content

The African Charter embodies a wide range of rights which it aims to promote and protect.

This includes individual human rights and also collective peoples' rights. Rights are often

classified into 'generations'. The other regional instruments, the European Convention on

Human Rights (ECHR) and the American Convention on Human Rights (ACHR) guarantee

only civil and political rights, which constitute first generation rights. The African Charter

however extends its protection to social and economic rights, which are second-generation

rights, as well as to collective rights of people, which constitute third generation rights.

However, the European Social Charter of 1960, the American Declaration on the Rights

and Duties of Man, and the Additional Protocol to the ACHR in the area of Economic,

Social and Cultural Rights of 1988 fill this gap in the European and Inter-American system.

The different rights proclaimed by the African Charter will be examined.

3.4.2 Individual Rights

In the African Charter, individual rights are divided into civil and political rights on the one

hand, and economic, social and cultural rights on the other. These are the rights and

freedoms one enjoys as an individual, and not because one belongs to a particular

community or social grouping or any other association. Hence, they are enjoyed in an

individual capacity. This does not however mean that these rights may not be enjoyed in a

group. For instance the right of association may only come into play if there are two or

more persons. Individuality here means that these rights can be enjoyed by an individual

regardless of whether he is in association with others or not.

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The right to bail is an individual right. The argument raised is whether it was right to

enshrine the right to bail for capital offences as essential under our constitution. Is the right

to bail to capital offenders a danger to the rights of others?

3.4.3 Rights and Duties

The Charter states that;

―The Member States of the Organization of African Unity, parties to the present

Charter shall recognize the rights, duties and freedoms enshrined in this Charter and shall

undertake to adopt legislative or other measures to give effect to them".94

In, Civil Liberties Organisation v Nigeria,95

the complaint alleged that various decrees by

the Nigerian military government which, ousts the jurisdiction of the domestic courts, and

specifically nullifies any domestic effect of the African Charter, were in violation of the

Charter. The Commission held that the obligation under article 1 commences at ratification

and that it will only cease when ratification is withdrawn through an international process

involving notice. It also stated that a State cannot negate the effects of its ratification of the

Charter through domestic action as it would constitute a serious irregularity, and as such

Nigeria remained bound by its obligation under the Charter. 96

A State's duty to undertake measures implies that a State must also take pre-emptive steps

to prevent human rights abuses. Even if State agents are not the immediate and direct cause

of a violation, the State still has the duty to intervene in order to prevent such violation or

investigate incidents.

In, Commission Nationale des Droits de l'Homme et des Libertes v Chad,97

the African

Commission held that a State will violate article 1 of the Charter if it neglects to ensure the

94

Article 1 African Charter on Human and Peoples Rights 95

(2000) AHRLR 243 (ACHPR 1999) 96

Communication 129/94 97

Communication 74/92

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rights guaranteed in the ACHPR, even if its agents are not the immediate cause of violation.

It also stated that the failure of the Chadian government to secure the safety and the liberty

of its citizens and to conduct investigations into murder, violated article 1 of the Charter.

Kenya as a country has implemented this by ratifying the Banjul charter by recognizing the

right of an accused person facing a capital offence charge be granted bail of course with

careful consideration.

3.4.3.1 Equality and protection of the law

Article 3 provides that:

" 1. Every individual shall be equal before the law.

2. Every individual shall be entitled to equal protection of the law".

The equality clause is closely linked to the non-discrimination clause. The provision of this

article is to the effect that people should be treated equally without any distinction. They

should be regarded equally before the law and the law should protect them equally without

discrimination.

In, UIDH, FIDH, RADDHO, ONDH and AMDH v Angola,98

the communication alleged

the expulsion of West Africans from Angola without the opportunity to challenge the matter

before the domestic courts. The Commission held that article 2 of the African Charter

obligates States parties to ensure that persons living on their territory, whether nationals or

non-nationals enjoy the rights guaranteed under the Charter. In this case the Commission

found that the victim's rights to equality before the law were trampled on because of their

origin, and constituted a violation of article 3 of the Charter.

98

Communication 159/96 , Union Interafricaine des Droits de l'Homme, Federation

International des Ligues des Droits de l'Homme, Rencontre Africaine des Droits de l'Homme,

Organisation Nationale des Droits de l'Homme au Senegal and Association Malienne des

Droits de l'Homme vs Angola

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The question arising out of this argument is, are general offences under the penal code such

as perjury or subordination of perjury99

equal to murder under sec 203? The article in the

Banjul charter clearly states that all persons are equal towards the law. In that in my

interpretation, where you are charged with perjury and therefore can be granted bail, in the

same spirit of equality a person who has been charged with murder can be granted the same,

or the court be subjected to accusations of violations of individual rights due to

discrimination. Truly the argument will be hard to sustain on granting bail if we use this

analogy yet our constitution in duly questioning it gives the court the obligation to grant bail

to capital offenders.

3.4.3.2 The right to liberty and security

Article 6 provides that:

"Every individual shall have the right to liberty and to the security of their person. No one

may be deprived of his freedom except for reasons and conditions previously laid down by

law. In particular, no one may be arbitrarily arrested or detained".The right to liberty is very

important since in most cases it transcends to the violation of other rights. Arbitrary arrest

and detention is a good example of violation of a person's liberty and in some instances have

led to the violation of other human rights such as freedom from torture, freedom of

expression and association, the right to fair trial and even the right to life. Liberty may imply

that individuals should not have obstacles to possible choices and activities placed on their

way. This right therefore requires the State to have justifiable grounds for depriving a

person's freedom, and requires such deprivation in situations where they are justified, to take

place in accordance with fair procedures.

The Commission held in Alhassan Abubaka v Ghana100

that the detention of the victim in

99

Sec 108 Penal Code (Cap 63) 100

Communication 103/93

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this case for seven years without trial was arbitrary and a violation of article 6 of the African

Charter.

Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroon,101

the Commission held

that the continuous detention of a prisoner beyond the expiry of his sentence constitutes a

violation of article 6.

Going with the argument of individual liberty does the rejection of bail to a capital offender

constitutes a violation of their rights to liberty? Reasonability is the key wording under the

Banjul charter and reiterated under the constitution. The question is not the right to bail for

capital offenders but the reasonableness of granting or refusal of the bail to persons charged

with capital offences.

3.4.3.3 Right to be heard (appeal on bail)

Article 7 provides that:

"Every individual shall have the right to have his cause heard. This comprises:

a. the right to an appeal to competent national organs against acts violating his

fundamental rights as recognized and guaranteed by conventions, laws, regulations and

customs in force;

(b) the right to be presumed innocent until proved guilty by a competent court or

tribunal;

(c) the right to defense, including the right to be defended by counsel of his choice;

(d) the right to be tried within a reasonable time by an impartial court or tribunal.

No one may be condemned for an act or omission which did not constitute a legally

punishable offence at the time it was committed. No penalty may be inflicted for an offence

101

Communication 39/90

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for which no provision was made at the time it was committed. Punishment is personal and

can be imposed only on the offender".

Under this article an individual has the right to seek redress in court for the violation of his

right. The Commission held in Rencontre Interafricaine pour la Defense des Droits de

l'Homme v Zambia102

that, the deportation of foreigners from Zambia without giving them

the opportunity to be heard by the national judicial authorities violated article 7 (1) of the

African Charter.

Also, only qualified judges must try a person and the court must be impartial, independent

and separate from the other branches of government. In, Constitutional Rights Project (in

respect of Zamani Lekwot and 6 Others v Nigeria,103

the Commission held that Decree 2 of

1987 in Nigeria which prohibited any judicial review of a special tribunal, and lacked judicial

appeal violated article 7 (1) (a) of the Charter. It also found that the judges of the tribunal

composed of members of the armed forces and police in addition to the judges created the

appearance of lack of impartiality and violates article.104

3.5 Conclusion

The expansion of international human rights law has often not been matched by practice. Yet,

there is growing consensus that the protection of human rights is important for the resolution

of conflict and to the rebuilding process afterward. By the provision of bail for murder trials

in our jurisdictional laws, we are creating a necessary promotion of equal rights and respect

of persons as entrenched in the United Nations Charter. The right to bail is considered by also

looking at Article 51 of the constitution on fair hearing where it is the common presumption

102

Communication 71/92 103

Communication 87/93 104 7 (1) (d) Constitutional Rights Project

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of law (rebuttable) that a person is innocent until proven guilty. Kenya has indeed come a

long way in regards to civil and political rights, especially since the tumultuous era of public

assassinations and the Nyayo torture Chambers. The adoption of the new Constitution served

as crucial turning point for the state to rededicate itself to upholding these rights and

fundamental freedoms. However, numerous hurdles remain from the successful adoption of

new laws of bail in the Constitution to the need for legal and institutional reforms that enables

citizens to enjoy their guaranteed rights.

GITONGAH MWANGI

CHAPTER FOUR

CONCLUSIONS AND RECOMMENDATIONS

4.0 Introduction

Be it local law or international law the law on bail to capital offences illustrates that the

guidelines are considered in totality of the circumstances of a given case; a single factor may

not suffice to warrant grant of bail, and several factors must be considered before the

discretion is exercised. Scholars have raised the question with regard to the law of bail,

whether, the courts should have discretion in refusing to release on bail, and if so to what

extent. This research was aimed at assessing the state of practice of bail in the judicial

system, thus the operation of the bail system. It speculates about the impulses for reform, the

personalities and institutions involved, that augur for and against the progress that has been

made so far. The primary duty of the criminal justice system is to dispense criminal justice in

accordance with the due process or rule of law. The bail system should safeguard the rights of

the accused in consideration with the rights of the community. The choices confronting the

criminal justice system are economically and socially expensive. The existing laws are not

entirely deficient of sound provisions that can safeguard individual rights as wells as rights of

others. There is need for solutions towards practical modifications to the existing operations

in tune with the spirit, not only the letter of law. The seeds of reformation and improvement

in the administration of bail lie dormant in the existing law itself.

4.1 Conclusions

Detention of the accused during the period of investigation and trial is an institution generally

recognized under domestic as well as international criminal laws. The little respect for the

rights of the accused persons before the international criminal tribunals and domestic courts

has been due to the severity of the crimes alleged, as well as by overwhelming concern for

GITONGAH MWANGI

the rights of the victims.105

Bail is hostile to the poor and favorable only to the rich. The poor

man has not always a security to pledge. Money bail creates in practice two classes of

defendants: those who can buy their pretrial freedom and those who cannot. Pretrial detention

may be appropriate for dangerous defendants charged with violent crimes. But the

preponderance of criminal defendants in are accused of low level offenses and jail for want of

money cannot be squared with basic notions of fairness, human rights, or fiscal common

sense.106

The consequences of a dysfunctional and unjust bail system should be of concern to

everyone and not restricted to the purview of professional or institutions of the criminal

justice system. he universality of human rights against security objectives is subject has been

preserved to policy rather than legal, with difficulties arise in the interpretation of the

principles and customs undergirding right to liberty and their application to (international

criminal) courts in bail decision-making. The court is not bound by universally established

human rights principles and its decisions are made under limited rights of due process.107

This has prompted the use of military tribunals by domestic courts in the wave of new crimes

like terrorism among others; despite the concerns of judicial protections and the trial process

being clearly asserted in the finality of the axiom of judicial review under domestic

constitutions to protect every person from the arbitrary abuse of executive power.108

Although

pre-trial release is a fundamental right, it can be restricted by a compelling government

interest. The measures also introduced a strong bias in favour of the prosecution in terrorism

cases by forbidding conditional liberty or bail to the accused; banning habeas corpus petitions

on behalf of terrorist suspects; and prohibiting any cross examination by defence lawyers of

police and military personnel involved in the detention or questioning of those accused of

terrorism. Provision for the police to detain a terrorism suspects indefinitely has been seen in

105 Cogan J. K., International Criminal Courts and Fair Trials: Difficulties and Prospects

, 27 YALE J. INT‘L L. 111, 114(2002) 106 Alexis de Tocqueville, Democracy in America, 1835.

107 The ICTY in Prosecutor vs. Tadic, Case No. IT-94-1-T, 10 August 1995. http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/mdocs/88_JennyHocking.pdf on 12/8/2013 at 2245hrs

GITONGAH MWANGI

some countries thus a challenge to forging universal treatment of suspects of emerging

crimes. This has been marked by an outset of radical and unjustified departures from

conventional human rights, judicial and law enforcement procedures, and the criminal justice

system is politicized to become order of ‗political justice‘, where the rules and rights

enshrined in the principle of due process are either wilfully misinterpreted or completely

disregarded.109

4.2. Recommendations

The need for legislative and administrative reform warrants cooperation and coordination

among all agencies of the criminal justice system. To effectively deal with the problems

hindering the administration of bail in the criminal justice system and process, the following

recommendations may be useful.

4.2.1 Amendment of conflicting laws

The Constitution provides for the rights of an arrested person110

in line with Article 9 of the

Covenant and guarantees rights of a fair trial. Article 49(h) further allows an arrested person

to be released on bond or bail pending a charge or trial, unless there are compelling reasons

not to be released. However, laws which conflict with the constitution have not been

repealed, leading to confusion in the Judiciary. For instance in Republic versus Gerald

Irungu111

, where a person accused of murder applied for bail, the court disregarded the

constitutional provisions and guarantees and instead applied the Criminal Procedure Code

which prohibited bail for certain category of offences. The court observed that while Section

123(1) and 123(4) of the Criminal Procedure Code, which prohibit the court from giving bail

to a person charged with the offence of murder, treason, robbery with violence may be

regarded as inconsistent with the Constitution, until they are so declared they still constitute

compelling reasons why an accused person should not be admitted to bond/bail. The Court

109 Chalk P., The Response to Terrorism as a Threat to Liberal Democracy. 1998. 110110 Article 49 The Constitution of Kenya 2010 111 Criminal Case no. 97 of 2010 , available at

http://www.kenyalaw.org/CaseSearch/view_preview1.php?link=96945299480027867718397

GITONGAH MWANGI

applied these provisions and denied the person bail, claiming that ‘The courts will be failing

in their duty if they allowed known killers to strut around in the streets.’

4.2.2 The need for legislative interventions.

The Kenya Law Reform Commission should gear its efforts to the drafting of a Bail Act,

which statute should adopt the standards of bail as envisioned in all human rights and

criminal law conventions towards a sustainable law reform initiative. An important

component legislative reform should be to reduce the number of crimes classified as capital

or eliminating the distinction between capital and non-capital offences altogether. The

legislature should amend or rather come up with a bail law which incorporates provisions to

cover:

a. Factors to be considered before granting bail should be statutory since these are

matters that form part and parcel of the judicial process.

b. Bail setting, at the lowest level necessary to ensure appearance with due regard to the

defendant‘s financial ability if financial conditions of release ought to be imposed.

c. Empowerment of the judiciary to come up with bail schedules so as to facilitate

predictable right to liberty for suspects.

d. Definite custodial time limits to safeguard the rights of an accused person.

e. Reasonable limits to the police and judicial discretionary authority under current law

to set affordable bail forms and amounts.

f. Policing in accordance with the rule of law, and police must ensure that upon arrest,

detention and charge, there is a presumptive right to bail or bond.

g. Strengthening of judicial inspectorate of prisons so as to prevent significant numbers

of accused persons, not proven guilty, from being held in pre-trial custody

GITONGAH MWANGI

4.2.3 Provision of adequate training

As observed throughout this dissertation, the guarantees in the Covenant can only be

effectively applied if understood by law enforcement and judicial officers, hence the urgency

of adequate training of the officers on the provisions of the Covenant, otherwise cit izens will

keep suffering violation of their rights due to lack of information and knowledge by Judicial

officers. The state should urgently organize trainings, through the Judicial Training Institute

or Kenya National Commission on Human Rights, for all Judicial Officers as well as law

enforcement officers on provisions of the Covenant and all other international instruments

that the state is a party to, using the General Comments as guidelines on application of the

provisions.

4.2.4 Alternatives to detention.

The most reasonable alternatives to detention can be majored through expansion and

improvement of the underutilized release on personal recognizance coupled with

computerization of notification, electronic monitoring of bail conditions, supervision and

house arrests for accused persons. The Criminal Procedure Code should be amended, to

present an opportunity to reform an ailing and inhumane pretrial detention system.

4.2.5 Information schemes

Development and implementation a bail information schemes, evaluation and supervision

center with objectives to: undertake a risk assessment of individual defendants by collecting

information from a variety of sources about detainees, and provide criminal justice officials

with trustworthy information on the potential risk a defendant may pose reneging on his

conditions of release, and to assist judicial officers in coming to a fair and effective release,

that is, detention decision based on objective and reliable criteria; and provide professional

supervisory services for high-risk defendants who would otherwise not be released awaiting

trial. In essence, to develop an institutional model to empower judicial and other criminal

GITONGAH MWANGI

justice officials to make informed and rational decision making, and provide supervisory

services for selected defendants, so that the maximum number of pretrial detainees can be

released without undue risk to public safety

4.2.6. Proper guidance on police bail

Police decision making in relation to bail is another significant factor. Police are the

gatekeepers of the bail system and the decisions they make about bail – when to refuse it,

how to ensure bail compliance, and when to arrest someone for a breach – are critical to the

ultimate outcomes for a defendant. Despite this fact, the Police Act112

provides little guidance

for police in the exercise of their discretion and little is known about police internal policies

and practices in relation to bail.

112

Chapter 84 of the Laws of Kenya

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BIBLIOGRAPHY

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