reform of the law relating to bail in kenya

REFORM OF THE LAW RELATING TO BAIL IN KENYA

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THE CASE FOR REFORM OF THE LAW RELATING TO BAIL IN KENYA.

MAVINDA CYRIL

©December 2010

NAIROBI – KENYA.


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TABLE OF CONTENTS.

Content Page

TITLE PAGE………………………………………………………………………………i

DECLARATION………………………………………………………………………….ii

DEDICATION……………………………………………………………………………iii

ACKNOWLEDGEMENT………………………………………………………………..iv

CHAPTER ONE………………………………………………………………………….1

BACKGROUND TO THE PROBLEM……..……………………………………………1

STATEMENT OF THE PROBLEM………………………..………………………...3

OBJECTIVES OF THE STUDY………………………………..…………………….4

RESEARCH QUESTIONS………………………………………..………………….4

ORGANISATION OF THE STUDY…………………………………..……………..4

LITERATURE REVIEW………………………………………………….…………5

CHAPTER TWO……...…………………………………………………………………8

COMPARATIVE BAIL: INTERNATIONAL AND DOMESTIC, HUMAN RIGHTS

AND CRIMINAL LAWS…………………………………………………………………8

2.0 INTRODUCTION………………………………………………………………...8

2.1 INTERNATIONAL HUMAN RIGHTS LAW…………………………………...8

2.1.0 The Universal Declaration of Human Rights……………………………………...8

2.1.1 The International Covenant on Civil and Political Rights………………………...9

2.1.2 The African Charter on Human and People’s Rights……………………………..9

2.2 INTERNATIONAL CRIMINAL LAW…………………………………………10

2.2.0 The Statute of the International Criminal Tribunal for the former Yugoslavia…10

2.2.1 The Statute of the International Criminal Tribunal for Rwanda…………………12

2.2.2 The Rome Statute of the International Criminal Court…………………………..13


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2.3 DOMESTIC LAWS ON BAIL: THE UNITED KINGDOM……………………14

2.4 CONCLUSION…………………………………………………………………..16

CHAPTER THREE…………………………………………………………………….16

BAIL IN THE KENYAN CRIMINAL JUSTICE PROCESS…………………………...17

3.0 INTRODUCTION……………………………………………………………….17

3.1 THE ASPECTS OF BAIL PRACTICE…………………………………………17

3.1.0 The Right to Bail…………………………………………………………………17

3.1.1 The exceptions to the right to bail………………………………………………..18

3.1.2 The Bail Hearing…………………………………………………………………18

3.1.3 Factors To Consider When Granting Bail……………………………………….19

3.1.4 Conditions and Breach of Bail…………………………………………………...20

3.1.5 Appeal and Review……………………………………………………………...21

3.2 THE LEGAL FRAMEWORK OF BAIL………………………………………..22

3.2.0 The Constitution………………………………………………………………….22

3.2.1 The Criminal Procedure Code…………………………………………………...22

3.2.2 The Prisons Act…………………………………………………………………..23

3.2.3 The Children’s Act……………………………………………………………….23

3.2.4 The International Crimes Act…………………………………………………….24

3.3 THE INSTITUTIONAL FRAMEWORK OF BAIL…………………………….24

3.3.0 The Judiciary……………………………………………………………………..24

3.3.1 The Police………………………………………………………………………..25

3.3.2 The Prosecution………………………………………………………………….26

3.3.3 The Legislature…………………………………………………………………..26

3.3.4 Custodial Institutions…………………………………………………………….27

2.3.5 Other agencies and stakeholders…………………………………………………28


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Kenya National Commission on Human Rights………………………………28

The Law Society of Kenya……………………………………………………28

Non-Governmental Organisations and Paralegal Institutions………………...29

CHAPTER FOUR………………………………………………………………………30

CONCLUSIONS AND RECOMMENDATIONS………………………………………30

4.0 INTRODUCTION……………………………………………………………….30

4.1 CONCLUSION………………………………………………………………….30

4.2. RECOMMENDATIONS………………………………………………………...34

4.2.0 Cooperation and coordination……………………………………………………34

4.2.1 Alternatives to detention…………………………………………………………35

4.2.2 Information schemes……………………………………………………………..35

4.2.3 The need for legislative interventions……………………………………………35

BIBLIOGRAPHY…………………..…………………………………………………..39


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CHAPTER ONE.

1.0 BACKGROUND TO THE PROBLEM.

The origins of bail law and practice can be traced to the Magna Carta(1215) and the

Statute of Westminster the First(1257).1 The common law of England did recognize the right, of

a prisoner to be admitted to bail in certain cases, which arose not from a sense of justice but

rather from circumstances of necessity, and not due to any love of an abstract liberty. In Kenya,

the Constitutions2 and Statutes

3 have codified the common law structure, thus the constitutional

right to be released on bond or bail on reasonable conditions pending a charge or trial unless

there are compelling reasons not to be released. The courts have a duty to respect and give full

effect to the bill of rights by developing the law, and adopting the interpretation that mostly

favours enforcement of a right or fundamental freedom.4 Bail is the release of a person charged

with an offence upon providing a security ensuring presence before the court or any other

authority whenever required, set by a judge at the initial appearance.5

All offences are bailable under the Constitution unless there are compelling reasons.6

These reasons, have become the biggest setback to the realization of the right to bail, been

subject to misapprehension, misapplication and or deliberate distortion demonstrated by several

judges.7 The grounds for opposing bail are not legislated, thus court or prosecution discretion in

most cases has resorted to application of wrong factors, such as linking offence seriousness and

gravity with a temptation to abscond, or need for additional investigations.8 Courts have frowned

upon applications for anticipatory bail due to absence of express provisions, leaving to judiciary

an exercise of supervisory jurisdiction to prevent executive encroachment on the individual, thus

the constructive right to bail pending arrest.9

1 “Every man is entitled to ‘due process of the law’…this principle is so ancient that it can be traced back to the Magna Carta.”

Hiemstra C.J, in Smith v Attorney-General,Bophuthatswana 1984 (1)SA 182. 2 Both the Repealed Constitution of 1963 and the new Constitution, 2010 are unanimous. 3 The Criminal Procedure Code (Cap 75, Laws of Kenya) 4 Article 2(6) and 20(3), Constitution 2010. 5 Black's Law Dictionary, 6th Ed. 1990, p. 140 6 Article 49 7 Mosotah D. B. M., Right To Bail Is Absolute Even In Capital Offences, Published in Nairobi Law Monthly on 17/12/2010.

Available at http://nairobilawmonthly.com/index/content.asp?contentId=23&isd=1&ar=1 on 15/01/2011 8 As was held in the case of Margaret Magiri Ngui v. Republic Criminal Application No. 59 of 1985, High Court, Nairobi,

Unreported. The case, among others challenged the constitutionality of refusal of bail. 9 Githinji, D. (2011).Anticipatory bail and the discourse of human rights, Published in Nairobi Law Monthly on 08/01/2011.

Retrieved from http://nairobilawmonthly.com/index/content.asp?contentId=53, on 18/5/2011.


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The successive legislative amendments10 have culminated to gradual erosion of the

presumption in favour of bail rendering any coherent philosophy behind the law of bail to

disintegrate under the weight of all the exceptions; further, overreliance on the public safety as

opposed to individual rights has led not only to potential violation of the presumption of

innocence, and have made the presumption an exception rather than the rule.11 The opposition of

bail has evoked complexities for minors charged with a capital offence, ruling out the operation

of the exception to the right to personal liberty. 12 Central to a decision maker is the assessment

of the likelihood to offend and whether offending is likely to be sufficiently serious to justify

subsequent bail refusal. However, this been prejudicial due to lack of information schemes to the

courts in bail decision making.13 Bail practitioners are not provided with appropriate guidance

and training on making or recording bail decisions in a way which is compliant with the

Constitution.14

The absence of bail policies and more objective and explicit procedures has led to

disparities in the granting of bail with subordinate courts setting excessive bond terms, divergent

and lengthy applications to the High Court for review, and overcrowding in prison facilities due

to pretrial detention of persons who otherwise qualify for release pending trial or appeal.15 Some

experimental and observational studies have revealed that the courts’ employment of a simple

‘fast and frugal’ decision making strategy of searching through a tiny fraction of the available

information and deciding from restricted information, leaving out likely relevancy of other

factors.16 The prospect of making just and defensible decisions has been hampered by the lack of

relevant information to assist the court when granting bail. 17

The courts must not take lightly their constitutional responsibility to scrutinize the

manner by which the legislature has authorized the detention of the accused in the absence of a

conviction.18 Some have ousted exercise of discretion to deny bail where it cannot be shown that

10 Through Acts No. 13 of 1978, Act No. 19 of 1984, Act No. 19 of 1985 and Act No. 20 of 1987 11 Brignell G., 2002, Bail: An Examination of Contemporary Issues. Available at

http://www.judcom.nsw.gov.au/publications/st/st24 on 22/06/2011 at 11:22 12 Republic vs. Susan Akoth Opiyo H.C.Cr.C No. 236 of 2003, 13 Mosotah D.B.M., Right To Bail Is Absolute, Even In Capital Offences., ibid 14Hon. Mr. Justice Onyango Otieno Expediting the Criminal Justice Process, ibid, p.23 15 Final Report of the Task Force On Judicial Reforms by The Hon. Mr. Justice William Ouko, July 2010, p. 94 16 Do Bail Information Schemes Really Affect Bail Decisions? Mandeep K. Dhami, The Howard Journal Vol 41 No 3. July 2002 17As argued by Vera Institute of Justice in 1961 establishing the Manhattan Bail Project. Retrieved from

http://www.vera.org/content/manhattan-bail-project-official-court-transcripts-october-1961-june-1962 on 27/03/2010 18 R. v. Hall, [2002] 3 S.C.R. 309, 2002 SCC 64


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a defendant will be tried within a reasonable time.19 Among major factors leading to the

expansion of remand population is the enactment of laws which promote the practice of denying

bail to defendants.20 The plight of many detainees is exacerbated by backlog of criminal justice

cases, with many accused persons spending years incarcerated awaiting trial. Kenya has an

occupancy rate of 344% despite ratification of international law discouraging use of pretrial

detention.21 Detainees do not enjoy the right to trial within a reasonable period of time due to

resource constraints, inefficiency of the system-poor coordination, communication and

cooperation between criminal justice agencies, complex procedures, and the overuse of

unnecessary adjournments. 22 Refusal of bail may be because of falsification of bond documents

such as title deeds and motor-vehicle logbooks by some sureties, rather than using coordinated

surety verification mechanisms by all institutions involved.23

The requirements for bail pending appeal are practically dissuasive for a defendant whose

presumption of innocence has been effectively removed by a conviction and consequential order

of imprisonment. The burdens of showing chances of success and exceptional or unusual

circumstances,24 on the applicant to justify release on bail pending appeal. It is judicially

unconscionable bearing in mind that the issue is one of unfettered discretion. Many suspects

remain in jail for months pending trial because of their inability to post bail, or are charged with

capital offences and are not eligible for bail pending trial.25

1.1 STATEMENT OF THE PROBLEM.

Despite the underpinning objectives of the bail system to ensure an accused person’s

appearance in court, community protection from dangerous defendants, and judicial process

integrity maintenance in prevention of victims or witnesses interference; there has been notable

non compliance with the norms, more so international, set to ensure the realization of the above..

19 Republic v. Victor Odeougu & Another(Unreported) 20 Rehabilitation Of Offenders In Kenya- Past, Present And Prospects By C.J. Okech 21 Schonteich M, Pre-trial Detention in Africa (2006). Available at http://www.communitylawcentre.org.za_clc-projects_civil-

society-prison-reform-initiative_newsletters_newsletter_newsletter15 on 10 august 2010 22 Penal Reform International(2007) Access To Justice In Africa And Beyond: Making the Rule of Law a Reality. Retrieved from

http://www.penalreform.org/publications/access-justice-africa-and-beyond-0 on 3 august 2010 23 Final Report of the Task Force On Judicial Reforms by The Hon. Mr. Justice William Ouko, Ibid 24 Somo v. Republic (1972) E.A 476 (HCK) 25 Bureau of DemocracyHuman Rights, and Labor (2009) Country Reports on Human Rights Practices. Retrieved from

http://www.state.gov/g/drl/rls/hrrpt/2009/af/135959.htm on 3 August 2010.


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1.2 OBJECTIVES OF THE STUDY.

1. To establish and help understand the impact of bail laws on the position of defendants in

the criminal justice process.

2. To identify any best practical reforms and solutions to problems facing administration of

the bail .

3. To identify the need for more objective and explicit bail rules and procedures in the

practice of bail.

4. To consider the underlying practice, law and approach to bail in other jurisdictions.

1.3 RESEARCH QUESTIONS.

1. What are the impacts of the current laws on the objectives of bail in relation to the

community, remand population and criminal justice process?

2. What are the inequities underpinning the existing bail law and practice?

3. What agencies are involved in bail administration and the role in bail law reform?

4. Is detention necessary to ensure public has confidence in the administration of justice?

1.4 ORGANISATION OF THE STUDY.

This study will be divided into four parts, namely;

1. Chapter One: Background of the study.

2. Chapter Two: Comparative Bail

3. Chapter Three: Bail Practice in the Kenyan Criminal Justice Process.

4. Chapter Four: Conclusion and Recommendations.


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1.5. LITERATURE REVIEW.

According to Bwonwong’a (1994),26 the police have power to release suspects who are

being investigated on bail or require them to execute bond with or without sureties or require a

deposit a sum of money as cash bail instead of executing a bond.27 The test to be applied in

granting or refusal is whether such person would appear at his trial if granted bail, taking into

account the facts, the charge and all the circumstances of the offence. The court has to consider

the nature of the offence and the seriousness of the punishment to be awarded in the event of

conviction; the strength of the prosecution case; the character and antecedents of the accused; the

failure of the accused to surrender to bail on a previous occasion; and the likelihood to interfere

with prosecution witnesses. 28

Corre & Wolchover (2004)29 reiterate that any law authorising a deprivation of liberty

must be sufficiently accessible, precise and foreseeable in its application as to avoid all risk of

arbitrariness.30 There is lack of consistency and accountability in the standard of provision for

unsentenced prisoners.31 The variation in the bail or custody rate may be explained by the culture

of the court in that the reputation of the court and of the individual magistrates influences the

expectations of the participants.32 Instead of implementing recommendations suggested by bail

practitioners, the government insists upon passing yet more legislations continuing the trends,

and statutes which have spawned numerous statutory instruments. Reforms designed to reduce

custodial waiting time are as important as those designed to reduce the number of receptions into

custody contrarily may lead to an increase in the remand population due to poverty or sureties’

fear of forfeiture.33

According to the National Association of Pretrial Services Agencies (2004),34 the

purposes of the pretrial release decision include providing due process to those accused of crime,

maintaining the integrity of the judicial process by securing defendants for trial, minimizing the

26 Bwonwong’a, M. Procedures in Criminal Law in Kenya, E.A.E.P. 3rd edition. 27 Ibid, p.114 28 Ibid, p.114-115 29 Corre, N.,&Wolchover, D., (2004). Bail in Criminal Proceedings, Oxford University Press. 3rded 30 Ibid, p.16 31 Ibid, p.4 32 Ibid, p.7 33 Ibid, p.13 34 National Association of Pretrial Service Agencies (2004). NAPSA Standards on Pretrial Release, 3rd ed. Retrieved from

http://www.vccja.org/2004-NAPSA-stndrds on23 August 2010


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unnecessary use of detention, and protecting victims, witnesses and the community from threat,

danger or interference. The judge or judicial officer decides - whether to release a defendant on

personal recognizance or unsecured appearance bond, release a defendant on a condition or

combination of conditions, temporarily detain a defendant, or detain a defendant - according to

outlined procedures.35 A well-functioning criminal justice system should seek to make prompt

and meaningful initial appearance a reality in all cases, as part of a process of continuing

improvement.36

According to Jackson (2005),37 the courts are barred from granting bail to a person

accused of murder, treason, robbery with violence and attempted robbery with violence. Police

may object to bail but much depends on the seriousness of the charge, likelihood to abscond or

interference with witnesses or victims or commits further offences. Failure to attend court on the

due date can lead to bond forfeiture to the court. Much depends on the seriousness of the offence,

likelihood to abscond or witness interference or commission of further offences whilst on bail.38

On the other hand Schonteich (2006)39 argued in conformity with international covenants

and guidelines that seek to protect the rights of detainees. Pre-trial detention should not be

ordered if the deprivation of liberty would be disproportionate in relation to the alleged offence

and the expected sentence. The broad international consensus to discourage the use of pretrial

detention and encourage the use of alternative measures, such as release on bail or personal

recognizance, or interest based measures in the case of juveniles. 40

To Mountford & Hannibal (2006),41 the defendant’s bail status is an agreement

negotiated between the prosecution and the defence, with the presumption in favour of bail

applying to grant of bail post-charge, prior to conviction and even post-conviction except in

discretionary grant bail. The criteria of granting bail: it is the inter-relationship between the

grounds for refusing bail and the applicable substantiating factors which determine the grant or

35 Ibid, p. 9 36 Ibid, p. 26 37 Jackson, T., (2005), The Law of Kenya, Kenya Literature Bureau. 3rded 38 Ibid, pp 353-35 39 Schonteich, M., (2006) Pre-trial Detention in Africa. Ibid 40 Ibid, p.3; Human Rights and Pre-Trial Detention. A Handbook of International Standards relating to Pre-Trial Detention,

Professional Training Series no. 3, United Nations, New York, 1994, pp 14- 15. 41 Mountford, L., & Hannibal, M., (2006).Criminal Litigation Handbook, Oxford University Press. 2nd ed


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refusal of bail.42 Neither party has time to prepare for the hearing and the application for bail is

likely to occur before the defence has had the benefit of pre-trial disclosure of prosecutorial

evidence. The application must be based on information that was not available to court or police

at the last hearing and here the court can vary or impose new conditions or remand in custody.

The offence of absconding is punishable by custodial and consecutive sentence, with the burden

of proof of absence on the accused person and regarded a significant factor weighing against the

re-grant of bail.43

According to Pretrial Justice Institute (2009),44 monetary bail was the statutory

preference for determining released or detention, but some projects resulted to the realization that

indigent defendants released on their own recognizance through the intervention of this program

were just as likely to come back to court as those who paid a money bail.45 The core functions of

a pretrial services program include; impartial universal screening of all defendants, regardless of

charge; verification of interview information and criminal history checks; assessment of risk of

pretrial misconduct through objective means and presentation of recommendations to the court

based upon the risk level; follow up reviews of defendants unable to meet the conditions of

release; and accountable and appropriate supervision of those released, to include proactive court

date reminders. 46

According to the Commonwealth Human Rights Initiative and the African Policing

Civilian Oversight Forum,(2010)47 the police in the fulfillment of their functions in accordance

to the rule of law ought to ensure observance of the presumptive right to bail or bond. 48While

the International Covenant on Civil and Political Rights does not define constitutes promptness,

the United Nations Human Rights Commission’s decisions indicate detention for not more than

72 hours. The presumptive right to bail, derived from presumption of innocence ensures release

unless there are reasonable grounds the contrary.49

42 Ibid, p. 206 43 Ibid, p.217 44 Pretrial Justice Institute.(2009). Pretrial Services Program Implementation: A Starter Kit, Retrieved from

http://www.pretrial.org/featuredresources on 23 August 2010 45 Ibid, p. 3 46 Ibid, p. 11-12 47 The Commonwealth Human Rights Initiative (CHRI) & African Policing Civilian Oversight Forum(APCOF) (2010) Common

Standards For Policing In East Africa Retrieved from http://www.humanrightsinitiative.org/publications on 21/02/2011 48 Ibid, p.22 49 Ibid, p. 28


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CHAPTER TWO.

COMPARATIVE BAIL: INTERNATIONAL AND DOMESTIC, HUMAN RIGHTS AND

CRIMINAL LAWS.

2.0 INTRODUCTION.

This chapter compares procedural and substantive aspects of bail law in different

jurisdictions including international, regional and domestic. It is important to highlight that gaps

exist between many states’ de jure and de facto compliance with international standards in this

area. The international human rights law has impacted on national law.However, there are no

specific international human rights standards on the right to bail; there are only generic

provisions on the right to liberty and due process of the law, which include the 48 hour rule. The

basic international norms and conventions have been internalized in Kenyan Constitution under

article 2(6), which provides that any treaty or convention ratified by Kenya shall form part of the

law of Kenya under the Constitution.

2.1 INTERNATIONAL HUMAN RIGHTS LAW.

2.1.0 The Universal Declaration of Human Rights (UDHR).50

This instrument is recognized as the ‘constitution’ of the modern human rights

movement. With respect to arrest and detention before trial, it provides for the inalienable rights

to life, liberty and security of person.51 Further, article 9 prohibits subjection to arbitrary arrest,

detention or exile. A broad interpretation of these provision impugns the legality of pre-trial

detention. It additionally entitles full equality to a fair and public hearing by an independent and

impartial tribunal in the determination of rights and obligations and of any criminal charge

against every person; and most importantly, the right to be presumed innocent until proven guilty

according to the law.52

50 Adopted by the U.N General Assembly in December 1948. 51

Article 3, UDHR. 52 Articles 10 and 11, UDHR.


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2.1.1 International Covenant on Civil and Political Rights(ICCPR).53

Article 9 of this Covenant provides for right to liberty and security of the person. The

deprivation of liberty should be only on grounds and in accordance with procedures established

by law. It requires prompt information, and entitles trial within a reasonable time or to release,

thus proscribes unlawful detention. Those deprived of liberty by arrest or detention are entitled to

court’s determination of lawfulness of detention and can order release if detention is unlawful.

Article 14 expresses the right to be presumed innocent until proven guilty according to law and

minimum guarantees and right to appeal. The covenant imposes a duty on states to ensure the

protection of each and every person’s rights. The Human Rights Committee54 is mandated to

monitor and supervise the implementation of the rights set out in the Covenant.

2.1.2 The African Charter on Human and People’s Rights.(ACHPR)55

The Charter provides for rights and duties of the individual and state.56 Under Article 6,

every individual has the right to liberty and security, and thus sanctions the deprivation of

freedom on unlawful grounds, specifically prohibiting arbitrary arrest or detention. The right to

be presumption of innocence under Article 7 caps the Charter’s protection of the right to bail. At

the continental level it establishes measures of safeguard through bodies such as the African

Commission on Human and Peoples Rights,57 which is mandated

58 to promote and ensure

protection of human and peoples’ rights against violations by state agencies. The Principles and

Guidelines on the Right to a Fair Trial and Legal Assistance in Africa59 provide for release on

bail unless there is sufficient evidence for necessity to prevent flight, interference of witnesses or

or serious risk to others, with release being subject to certain conditions like payment of bail.60

The African Court on People’s Human and Rights61 complements the Commission and its

decisions are final and binding on human rights violations.62

53 The ICCPR, Adopted by the U.N General Assembly in December 1966. 54 Article 28-45, Part IV 55 Adopted by the eighteenth Assembly of Heads of State and Government, June 1981 56 Chapter 1 of the ACHPR 57 Part 2, Chapter 1 58 Article 45, ibid. 59 Adopted in 1999 60 Principle M (1)(e), The African Commission On Human And Peoples’ Rights - Principles And Guidelines On The Right To A

Fair Trial And Legal Assistance In Africa, 1999. 61 Established on January 25, 2004 62 African Court on People’s Human and Rights www.african-court.org/en/court/mandate/general-information/


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2.2 INTERNATIONAL CRIMINAL LAW.

Since the inception of international criminal law, defendants before the Nuremberg and

Tokyo tribunals63 were automatically detained and could not seek release. However, the

subsequent Yugoslavia and Rwanda64 tribunals, and the International Criminal Court, provide for

provisional release. The rights of prisoners have been affirmed not only by international human

rights instruments, but also by the creation of international criminal tribunals with jurisdiction to

grant or refuse bail or provisional release.65 The mechanism of provisional release

66 requires the

balancing of the interests of the prosecution as to a continued detention on remand of the accused

and the personal interests of the latter to await his or her trail to freedom. This balancing

operation is complimented by the fundamental notion that a person is presumed innocent until

proven guilty, a principle that affects the length of detention on remand. On the other hand, the

interests of justice in terms of preventing an accused from absconding, interfering with witnesses

or committing further offences is taken into consideration.67

2.2.0 The Statute of the International Criminal Tribunal for the former Yugoslavia.

(ICTY) 68

The statute has made progress but has fallen short in serving as a model in the area of bail

or provisional release; noting the lengthy trials, excessive judicial discretion and an unwritten

rule that all defendants, whether or not they pose a risk of flight or danger to the community,

should be detained. The trial chambers should ensure fair and expeditious trial, the adherence to

the rules of procedure and evidence in proceedings, the full respect for the rights of the accused

and due regard for the protection of victims and witnesses.69 As regards accused person’s rights,

article 21 insists on equality of all persons before the tribunal, entitlement to fair and public

hearing - subject to the protection of victims and witnesses, right to be presumed innocent until

proved guilty, and to be tried without undue delay.

63

Charters of the International Military Tribunals of Nuremberg,1945 and Tokyo, 1946. 64 In the International Criminal Tribunal for Rwanda (ICTR), provisional release lags behind because no defendants have been

released pending trial to date. 65 Rotman, E., The influence of international criminal law on the advancement of prisoners’ rights. Retrieved from

http://fondationinternationalepenaleetpenitentiaire.org/Site/documents/Stavern/09_Stavern_Contribution%20Rotman.pdf on

30/6/2011 13:27 66 Under under ICTY, ICTR, and ICC Statutes. 67 Batra, A., Provisional Release under International Criminal law, http://www.findpdf.net/ebooks/books-about-Prov 68 Adopted by Resolution 827 of 25 May 1993 69 Article 20, ICTY Statute.


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The ICTY Rules of Procedure and Evidence70 provide for provisional detention of a

suspect for a period of thirty days - subject to extension71 but not in any case more than ninety

days - at the end of which the suspect shall be released. Under rule 65, an accused may not be

released except where the chamber so orders. Rule 65(B) places a presumption on pre-trial

detention (not release) and a burden on the accused to satisfy the court that he ‘will appear for

trial and, if released, will not pose a danger to any victim, witness or other person’.72 This is only

after the host country and the state to which the accused seeks to be released are heard and the

court is satisfied that the accused will appear for trial and, will not pose a danger to any victim,

witness or other person. The chamber may impose appropriate conditions of such as execution of

a bail bond and the observance of such conditions to ensure appearance for trial and the

protection of others.

A decision to grant or refuse release is subject to appeal by the defence within seven days

– of notice - of the impugned decision. However, the prosecutor may apply for stay of a decision

to release an accused on the basis of prosecutor’s intention to appeal which should be within one

day from the rendering of release decision. The chamber’s orders of stay of release decision, is

not released until the expiry of time-limit, dismissal of the appeal or the appeals chamber

otherwise orders. The appeals chamber may grant provisional release pending appeal if it is

satisfied with the appellant’s prospect to appear at the hearing or surrender into detention; or

his/her non-dangerousness to victims, witnesses; or special circumstances warrant the release.

The above provision has been problematic and has seen the court hold that, ‘a hypothetical

possibility that a suspect might abscond is insufficient to justify such a draconian measure as pre-

trial detention since a hypothetical possibility, by its very nature, can never be discounted.’73

70 Adopted On 11 February 1994 71 Rule 40 72 Boas G., The Milosevic Trial: Lessons for the Conduct of Complex International Criminal Proceedings. Retrieved from

http://www.ohlj.ca/documents/695ScottBN.PDF on 12/10/2011 at 12:00 73 Prosecutor v. Hadzihasanovic;,19 December 2001 where the International Criminal Tribunal for the Former Yugoslavia

recognized that "there will never be a total guarantee that an accused will appear for trial and, if released, will not pose a danger

to sources of evidence".


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2.2.1 The Statute of the International Criminal Tribunal for Rwanda. (ICTR) 74

This is the statute establishing the ICTR and is strikingly similar to the preceding statute

of the ICTY. Article 19 obliges the tribunal’s trial chamber to ensure fair and expeditious trial,

the adherence to the rules of procedure and evidence in proceedings, the full respect for the

rights of the accused and due regard for the protection of victims and witnesses. Rights to

equality before the tribunal, a fair and public hearing subject to safety of victims and witnesses

are guaranteed under this Statute.75 One of the quoins of criminal justice is upheld under Article

21, that is right to be presumed innocent until proven guilty, with among others the minimum

guarantee to be tried without undue delay.

The Rules of procedure and evidence76 provide for detention of a suspect for a period of

not more than ninety days to prevent the escape, physical or mental injury to or intimidation of a

victim or witness or the destruction of evidence, or to be otherwise necessary for the conduct of

the investigation. Under rule 65, an accused may not be release can only be after the host country

and the state to which the accused seeks to be released are heard and the court is satisfied that the

accused will appear for trial and, will not pose a danger to any victim, witness or other person.

The chamber may impose appropriate conditions of such as execution of a bail bond and the

observance of such conditions to ensure appearance for trial and the protection of others.

A decision to grant or refuse release is subject to appeal by the defence within seven days

– of notice - of the impugned decision. However, the prosecutor may apply for stay of a decision

to release an accused on the basis of prosecutor’s intention to appeal which should be within one

day from the rendering of release decision. The chamber’s orders of stay of release decision, is

not released until the expiry of time-limit, dismissal of the appeal or the appeals chamber

otherwise orders. The chamber may issue a warrant of arrest to secure the presence of a released

person where necessary. The appeals chamber may grant provisional release pending appeal if it

is satisfied with the appellant’s prospect to appear at the hearing or surrender into detention; or

his/her non-dangerousness to victims, witnesses; or special circumstances warrant the release.

74 Resolution 955 on 8 November 1994. 75

Article 20 76

Adopted on 29 June 1995.


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2.2.2 The Rome Statute of the International Criminal Court(ICC).77

The Court is obligated to apply the Rome Statute in a manner which is consistent with

internationally recognized human rights law.78 The Statute sets out a high test for release to the

effect that the competent authority in the custodial State should consider whether, given the

gravity of the crimes, there are urgent and exceptional circumstances to justify interim release

and whether necessary safeguards exist to ensure the surrender of the person to the Court.

Accordingly, the pre-trial chamber’s predictive assessment as to the risk of flight should be

founded on relevant and specific information and not on speculation.79

An arrested person has right to apply for interim release pending trial80 and the pre-trial

chamber can continue the detention if satisfied of necessity to ensure the person's appearance at

trial, prevention of the person from obstructing or endangering the investigation or the court

proceedings; or may release the person with or without conditions. The release or detention

decision is subject to review – which may modify the detention, release or conditions of release -

at any time on the request of the prosecutor or defendant. It is the pre-trial chamber’s obligation

to protect persons from detention for unreasonable periods prior to trial due to inexcusable delay

by the prosecutor through release with or without conditions but may issue a warrant of arrest to

secure the presence of a person who has been released if necessary. 81

Under the ICC Rules of Procedure and Evidence,82 an arrested person may request for

interim release from the authorities of the custodial state which should seek recommendations

from the pre-trial chamber on conditions of reports on the status of the interim release.

Application for release upon surrendered to the Court should be considered without delay after

seeking the views of the prosecutor. 83 Rule 119 empowers the court to set one or more

conditions restricting liberty. Some conditions include: travel limits set by the court; curfews or

non-association with certain persons; not to contact victims or witnesses directly or indirectly;

not to engage in certain professional activities; living at a specific residence; reporting to the

77 Adopted July 1998, Entry into force: July 2002 78 Article 21, Rome Statute 79

Article 59(4) and 60(2), Ibid. 80 Article 59(3), Ibid. 81 Article 60( 2)-(5), Ibid. 82 Adopted by the Assembly of States Parties, September 2002 83 Rules 117 and 118


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authority or qualified person designated by the court; posting bond, provision of security or

surety; and surrender of identity documents, specifically the passport. The court has previously

ruled that the prosecution bears the burden of submitting sufficient information to establish that

the existence of such international contacts renders it “more likely” (not just theoretically

possible) that a suspect would abscond.84

2.3 DOMESTIC LAWS ON BAIL: THE UNITED KINGDOM.

The Bail Act, 1976 is the main statute providing the framework and principles upon

which bail may be granted or refused in the United Kingdom. The Magistrates Court Act (1980)

confers powers on magistrates to grant or refuse bail. Further, the Police and Justice Act (2006)

imposes bail conditions under the Police and Criminal Evidence Act (1984), that is, on bail

granted elsewhere than at a police station ("street bail"). However, conditional bail before charge

is not permitted when a person is bailed pending further investigation. Section 4 and Schedule 1

of the Bail Act, provides for a general right to bail, often termed a presumption in favour of bail,

which requires the court to release a person on bail unless certain conditions are met. The right to

bail subsists throughout the proceedings. Any decision to refuse bail should only be taken where

it can be justified under the Bail Act, other legislations and the European Convention on Human

Rights(1950) through compatibility with the Human Rights Act 1998.85

Courts may only refuse bail if defined exceptions apply, and must take into account

information that is available to it, including the offence, background of accused person and

previous bail history. The defendant need not be granted bail if the court is satisfied that there are

substantial grounds for believing that defendant may fail to surrender to custody, or commit

further offence, or interfere with the witnesses or otherwise obstruct the course of justice if

released on bail. 86 Section 56 of Crime and Disorder Act 1998 allows bail to be granted in

serious offences like murder, manslaughter, rape, attempted murder and attempted rape only on

exceptional circumstances, and one can make only two bail applications.87

84 Thomas Lubanga Dyilo v Prosecutor ICC-01/04-01/06-824, 2007. 85 The Law Commission, Bail And The Human Rights Act 1998, (LAW COM No 269 of 20 June 2001) 86 Schedule 1 Part1, para 2-7, Bail Act 1976 87 Section 154(3) Criminal Justice Act 1988


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Conditions of release under the Act may be: surety or sureties as a condition to release on

bail, or security, or compliance with requirements imposed by the court. 88 The commonly

applied bail conditions include: reporting to police station as a means of monitoring the accused

person’s whereabouts or supervision; curfews with electronic monitoring of conditions;89

exclusion from zones or certain areas; non-association with some individuals; cooperation with

the preparation of reports;90 or residential conditions like under a particular address, or as

directed by the local authority, or in a bail hostel.91

The prosecution can apply to a court to have a court decision to grant bail reconsidered,92

for conditions to be imposed on unconditional bail, to vary conditions already imposed or to

withhold bail. The Bail (Amendment) Act 1993 provides for prosecution’s right of appeal in

cases where magistrates have granted bail. Conditions imposed by police officer may also be

varied by the Magistrates' Court on application by the suspect.93 Upon refusal of bail, imposition

or variation of bail conditions, the court or police officer must give a copy of the written record

of the reason their decision and give the young person. Courts are also required to give their

reasons for granting bail where the prosecution objects to bail. These reasons must be recorded

and provided in writing to the prosecutor if requested.94

Any person granted bail is under a duty to surrender to the custody of the court failure to

which is a criminal offence.95 The court can issue a warrant of arrest or charge with either of two

criminal offences of absconding.96 However, a breach of bail conditions is not a criminal

offence, but an accused person can be arrested97 without warrant if the police have reasonable

grounds for believing a likely break of any conditions of bail or if they suspect that they have

already broken a condition of bail. In these circumstances the court need not grant bail, or can

grant it on the same or different grounds.98

88 Sections 3(4), (6), (7) and (5) of the Bail Act 1976 as amended by section 54(1) of the Crime and Disorder Act 1998 89 Sections 130 of the Criminal Justice and Police Act 2001. 90 Section 3(6A)Bail Act 1976 91 Home Office Circular (34/1998) New Bail Measures; Sections 54,55 and 56 of the Crime and Disorder Act 1998. 92 Section 5b Bail Act 1976 amended by section 30 of the Criminal Justice and Public Order Act 1994 93 section 47(1E) Police and Criminal Evidence Act 94 Section 129(1) of the Criminal Justice and Police Act 2001 95 Section 3(1) Bail Act 96 Sections 6(1), (2) and 7(1) Bail Act 97 Criminal Justice Act 2003 para 5 of Schedule 2 which inserts (1A) into s 46A 98 Section 7(3)(b); Sch 1, Part 1, para 6; and Part 11, para 5 Bail Act 1976.


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There is a mandatory requirement for all establishments that hold remand prisoners to

have a comprehensive bail information scheme in place. The standard is that all eligible

prisoners will be provided with the facilities necessary to assist in their applications for legal aid

and bail, and arrangements for release when applicable. There is no statutory requirement for bail

information schemes and it has, until recently, been Prison Service policy to encourage rather

than require all local prisons and remand centres to have comprehensive bail information

schemes in place. Schemes must cover all remand prisoners and match the National Standards

set by the ACOP Bail Practice Committee.99 Prison-based bail information schemes target

defendants who have failed to secure bail at their first court appearance and could benefit from

assistance in applying for bail at their second or subsequent appearances. Court-based bail

information schemes, which have the main aim of securing bail at a defendant’s first appearance,

are operated by the Probation Service.

Bail accommodation and support services100 in the United Kingdom are provided by

Stonham101 which facilitates the greater use of bail by the courts. It is aimed at defendants who

are not likely to require the levels of supervision available in Approved Premises and is also

available for home detention curfew. The defendant will be allowed to remain at the

accommodation for up to 7 days following completion of the bail period unless otherwise

recalled or the service is terminated. The support service assists in keeping appointments

including among others, attendance at court.

2.4 CONCLUSION

Based on the research done so far the rule appears to be that accused individuals should

be given a hearing to determine their rights and determine the conditions of release before. Such

release can be denied with some proof by the government that the individual is a risk of flight

and will not return for trial or that the individual poses a risk to the community. The basic right

to due process entails a fair hearing that allows arguments to be heard from both the State and the

defendant so that the grounds and conditions or denial of bail. Release on condition is not an

absolute right of the accused facing allegations of serious crimes against others or the State.

99 Dhami M., ‘Do Bail Information Schemes Really Affect Bail Decisions?’, The Howard Journal, Vol 41, No 3 (July 2002), p

245; Her Majesty’s Prison Service, Prison Service Order 6101, ‘Bail Information Scheme’ Ref. No. 6101 Issued 02/09/1999.

Retrieved from http://www.pso.hmprisonservice.gov.uk/PSO_6101 100 PSI 34-2010/PI 09-2010 Issue date 14/06/10 101 Stonham Bail Accommodation and Support Services. http://www.stonham-bass.org.uk/


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CHAPTER THREE.

BAIL IN THE KENYAN CRIMINAL JUSTICE PROCESS.

3.0 INTRODUCTION.

This chapter seeks to find the rules, procedures, policies and standards that regulate the

practice of bail in the criminal justice process. It highlights the aspects of bail in practice, the

institutional and legal framework, and the areas of bail reform in Kenya. With the practice of bail

in Kenya being centered on public safety, a major concern of the criminal justice system on the

other hand is to process people accused of criminal acts, the objective being to administer justice

by protecting individual freedoms and maintaining public order. The institutions of the criminal

justice system have to operate under a consensus model of criminal justice, hence the need for

inter-agency collaboration. In its original form, the Criminal Procedure Code (Cap 75, Laws of

Kenya)102 prescribed a presumption in favour of bail for all offences, without regard to their

seriousness. However, series of legislative amendments made murder, treason,103 robbery with

violence and attempted robbery with violence;104 which carry a mandatory death sentence, non-

bailable offences. Further enactment105 adopting absoluteness of right to bail was reversed by

subsequent limit to this absoluteness.106 Sporadic criminal legislations and policies have led to a

paradigm shift in the considerations for bail or remand decisions. 107

3.1 THE ASPECTS OF BAIL PRACTICE.

3.1.0 The Right to Bail.

The Constitution (2010) under article 49 1(h) expressly provides for a right to be released

on bond or bail on reasonable conditions pending a charge or trial unless there are compelling

reasons not to be released. The Criminal Procedure Code under section 123(1) provides for the

release by court or police on bail except in capital and related offences. The amount of bail shall

be fixed with due regard to the circumstances of the case and shall not be excessive, hence the

right to reasonable bail. Anticipatory bail or rather bail pending arrest is not expressly provided

102 Ibid. 103 Amendments to the Criminal Procedure Code, section 123(1), vide Act No. 13 of 1978. 104 Act No. 19 of 1984 105 Act No. 19 of 1985 106 Act No. 20 of 1987 107 On emerging criminal trends like terrorism,cyber crime, and police detentions.


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for under the Constitution or by statute, but, the courts108 have held that it is envisaged under the

Constitution109, which provides for the right to institute court proceedings where a right or a

fundamental freedom has been denied, violated, or infringed, or is threatened. Courts have

affirmed that a person who is constantly subjected to harassment or is in fear of being

unjustifiably arrested has a right to be protected by the Constitution through the courts. Further,

the right has to be called out when there are circumstances of (likely) serious breaches of

citizen’s rights by an organ of the state that is supposed to protect the same.110

3.1.1 The exceptions to the right to bail.

The constitutional right to bail is to be enjoyed subject to the rights and freedoms of the

public,111 and this exception, that is, unless there are compelling reasons not to be released,

requires judicious exercise of discretion.112 The Criminal Procedure Code under section 123(1)

provides for the release by court or police on bail except in capital and related offences. Under

the Constitution113, an accused person enjoys the right to be presumed innocent until the contrary

is proved; which presumption is the main hinge for granting bail. This gives rise to a

presumption in favour of bail, which is implied from the right to bail. The effect is to place upon

the prosecution the burden to prove or at least demonstrate, to the satisfaction of the court, why

the accused should not be released on bail.114 However, this is rebutted in applications for bail

pending appeal and the burden shifts to the accused to justify his release on bail pending the

hearing of an appeal because the constitutional presumption of innocence is effectively removed

by the conviction and order of imprisonment.115

3.1.2 The Bail Hearing.

The court has unfettered discretion to grant or refuse bail.116 Upon application, it is the

duty of the court duty to inform the accused person of his/her right to bail, to release them on

reasonable terms unless the court is satisfied that there is just cause for continued detention. The

108 W’Njuguna vs R, Miscellaneous Criminal Case No. 710 of 2002 KLR. 109 Article 22 110 Githinji, D.,2010. Anticipatory bail and the discourse of human rights. Published in the Nairobi Law Monthly on 08/01/2011

Retrieved from http://nairobilawmonthly.com/index/content.asp?contentId=53 on 23 may 2011. 111 Bwonwong’a, 1994. p.114 112 Mosotah, ibid. 113 Article 50 (2)(a) 114 M. Lunguzi vs. Republic Msca Appeal No. 1 of 1995 (unreported) 115 Bwonwong’a, Ibid. pp. 113-114 116 Ibid.; Re Abdulla bin Mohamed(1914-15) EALR 166


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prosecution is obliged to adduce and prove as to why the accused should not be released on bail,

which reasons are purely circumstantial and factual and must be sufficiently compelling on their

face without unnecessary speculation. The judge examines the reasons considering the

constitutional threshold of interpretation and construction, and then considers both arguments

and submissions in support and in opposition to the application of bail together with authorities

adduced before making a decision. The practice should rather be to require the state to prove to

the satisfaction of the court that in the circumstances of the case, the interest of justice requires

the accused be deprived of his right to release from detention. Like the courts, the police also

have power to release suspects who are being investigated on bail.117

3.1.3 Factors To Consider When Granting Bail.

In deciding whether or not to grant bail, the basic factor or denominator is to secure the

attendance of the accused person to answer the charges brought against him; with others like

whether the release of the individual will endanger public security, safety and the overall interest

of the wider criminal justice system.118 Though the statutory provisions are not thorough on

consideration of factors relevant to assessing bail, the courts have adopted a criteria, which is

considered in the exercise of its judicial discretion to arrive at a decision.119 These include: the

nature of the offence and the seriousness of the punishment to be awarded in the event of

punishment; the character and antecedents of the accused; the strength of the prosecution case;

the failure of the accused to surrender to bail on a previous occasion; the likelihood of

interference with the prosecution witnesses or may suppress any evidence that may incriminate

him;120 the previous criminal record of the accused if any; the likelihood of further charges being

brought against the accused; the probability of guilty verdict; detention for the protection of the

accused; and the necessity to procure medical or social report pending final disposal of the case,

among others.121

117 Section 123(1), Criminal Procedure Code 118 Warsame, J., in Republic Vs Muneer Harron Ismail & 4 Others, H.C. Criminal Revision No. 51 Of 2009 119 Alhaji Mujahid Dukubo Asari v Federal Republic Of Nigeria S.C. 20a/2006; upheld in Kenyan courts by Ibrahim, J. in the

case of Republic v Danson Mgunya & another [2010] eKLR 120 Bwonwong’a(1994)..pp.114-119 121 The said court stated that the criteria was not exhaustive. Other factors not mentioned my relevant to the determination of

grant or refusal of bail to an accused person.


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The factors are subject to the requirement that the relevant facts justifying such a course

be placed before the court. Of importance is the likelihood, or probability that a risk in the

factors will materialize. A possibility or suspicion will not suffice and a finding that there is

indeed such a likelihood is no more than a factor to be weighed with all others in deciding. The

court should not be guided by irrelevant considerations122 when determining the compelling

reasons not to be released, and if so, the ordinary appeal and review mechanisms can remedy any

undue deference that may have been afforded to public sentiment. If a proper basis for the

original arrest is absent, it will be set aside.123

3.1.4 Conditions and Breach of Bail.

Under article 49 1(h) of the Constitution, an arrested person has the right to be released

on bond or bail on reasonable conditions pending a charge or trial. If bail is granted, by court or

police, the accused may have to execute a bond with or without sureties or may be required to

deposit a sum of money as cash bail instead of executing a bond.124 Under Criminal Procedure

Code under, section 124 the court may specify conditions of release: which include; releasing an

accused person on his own recognizance, that is, a promise to return to court when necessary and

to comply with any other conditions set; or cash bond to appear or forfeit a sum of money which

has to be deposited with the court before release; or by way of surety, another person undertakes

to return the defendant to court when necessary and assures compliance with any other

conditions set or be liable for a money judgment in the amount of the bond.

An accused person who has been released on bail on certain conditions is duty bound to

observe the conditions failure to which bail may be cancelled and be ordered to forfeit or pay the

sums of money in the bond into court. Before a court orders forfeiture, there has to be sufficient

proof, by way of evidence on oath. Failure to attend court on the due date prompts forfeiture.

Much depends on the seriousness of the offence, likelihood to abscond or witness interference or

commission of further offences whilst on bail.125 Proof of absconding leads to arrest and

imprisonment until the trial ends or the court considers further readmission on recognizance.126

122 R. v. Hall, [2002] 3 S.C.R. 309, 2002 SCC 64 123 Republic v Danson Mgunya & another [2010] eKLR 124 Section 126, Criminal Procedure Code 125 Jackson, 2005, pp. 353-4 126 Bwonwong’a, Ibid


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3.1.5 Appeal and Review.

Under the Criminal Procedure Code, the trial court is empowered to suspend its sentence

by grant of bail pending the entering of an appeal.127 Similarly, the appellate court has similar

powers to grant bail after the entering of the appeal. For bail pending appeal to be granted either

by trial or appellate court, certain rules have to be considered. There must be overwhelming

chances of success of the appeal succeeding or that there are exceptional or unusual

circumstances warranting the grant of bail.128. However, the burden of proof shifts to the

applicant to justify his/her release on bail pending appeal because the constitutional presumption

of innocence is effectively removed by the conviction and consequential order of imprisonment.

In the High Court, an applicant in such can show successful chances of his/her appeal on either

conviction or sentence whereas in the Court of Appeal, in cases of second appeals, showing that

the appeals likely to succeed is limited to conviction only.129 Forfeiture orders passed in

magistrates’ courts are subject to appeal and revision by the High Court. The latter may direct

the former to reduce or add to enhance attendance.130

127 Section 356, Cap 75, 128 Somo v. Republic (1972) E.A 476 (HCK) 129 Bwonwong’a,1994. ibid pp.280-282 130 Sections 132 &133, Cap 75


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3.2 THE LEGAL FRAMEWORK OF BAIL.

3.2.0 The Constitution.131

The Constitution is the supreme law of the Republic and binds all persons and all State

organs at both levels of government. Any law that is inconsistent with this Constitution is void to

the extent of the inconsistency, and any act or omission in contravention of this Constitution is

invalid.132 It guarantees the right to liberty of individuals with Article 20(1) stipulating that the

Bill of Rights shall apply to all and binds all State organs and all persons. Article 49 1 (h) states

that, “An arrested person has a right to be released on bond or bail, on reasonable conditions,

pending a charge or trial, unless there are compelling reasons not to be released.” This falls under

the class of fair trial, which is among the fundamental rights and freedoms that may not be

limited under the Constitution. The absence of express provisions on bail pending arrest the

courts an exercise of supervisory jurisdiction to prevent the appropriation of the powers granted

to the executive to the detriment of the individual. Article 22(1) provides that every person has

the right to institute court proceedings claiming that a right or a fundamental freedom in the Bill

of Rights has been denied, violated, or infringed, or is threatened. Articles 23(1) and 165(3)(b)

clothe the High Court with jurisdiction to hear and determine applications for denial, violation or

infringement of, or threat to, a right or fundamental freedom in the Bill of rights. Article 29 of

the Constitution 2010 guarantees the freedom and security of the person. Clause (a) particularly

provides the right not to be deprived of freedom arbitrarily or without just cause.

3.2.1 The Criminal Procedure Code.133

The provisions as to bail are stipulated in this statute under Sections 123 to 133, and this

contains both procedural and substantive aspects of bail. It classifies offences into bailable and

non-bailable, thus grants bail to accused persons other than those charged with murder, treason,

robbery with violence, attempted robbery with violence and any related offence. Further, it

outlines the key players involved in bail administration, as well as their functions, powers,

jurisdiction and burden of proof. Moreover, it enshrines the amount of bail; conditions such as

recognizance, cash bonds and sureties; obligations of released persons as well as those bound by

131 The Constitution of Kenya, 2010. 132 Article 2(1) and (4), ibid 133 Cap 75, Laws of Kenya.


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recognizance or sureties; non compliance with bail and remedies to breach of bail; and (bail

pending) appeals and revision of bail decisions.134

3.2.2 The Prisons Act.135

Under the Act, section 2 defines an unconvicted person as a person on remand, awaiting

trial or detained for safe custody who has not been convicted by any court, as opposed to a

convicted criminal prisoner, i.e., one serving a court sentence. Further, every person charged

with any crime or offence remanded to any prison by any court or other competent authority can

only be detained according to the terms and is entitled to be delivered in court or be

discharged.136 The Prison Rules

137 provide for the classification into young, star, ordinary and

unconvicted prisoners at all times, with regard to age, character and previous history so as to

minimize the danger of contamination.

3.2.3 The Children’s Act.138

The core objectives of the Act include the protection of children, to make provision for

administration of children’s institutions and to give effect to the principles of the Convention on

the Rights of the Child and the African Charter on the Rights and Welfare of the Child among

others.139 The court may release the child on bail on terms it may deem appropriate and if bail is

not granted, the court shall record the reasons for refusal, inform the child of his right to apply

for bail to a higher court and may order custody in a children’s remand home.140 However, the

promulgation of the rules of practice and procedure in respect of the enforcement of the said

children’s rights is left to the discretion of the chief justice.141

134

Sections 123-133, ibid. 135 Cap 90 Laws of Kenya 136 Section 31, Ibid. 137

Rule 4 and 5 138 Act No. 8 of 2001 139 Preamble to the Children’s Act, 2001. 140 Sections 9 and 10, Ibid 141 Ongoya Z., 2007,The Emerging Jurisprudence on the Provisions of Act No. 8 of 2001, Laws Of Kenya – The Children Act, p.

216


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3.2.4 The International Crimes Act.142

The accused person is not entitled to bail as of right and is not be permitted to go at large

without bail. Upon application for bail, the minister responsible for national security should seek

recommendations from the International Criminal Court and convey such to the High Court

releasing the person on bail which may impose any conditions of bail it thinks fit.The factors the

court may take into account in making a decision to grant bail include; the gravity of the alleged

crimes; whether there are urgent and exceptional circumstances that favour the grant of bail; and

whether necessary safeguards exist to ensure surrender the person.143 It should further consider

any recommendations from the ICC including measures to prevent the escape of the person. If

bail is granted, the minister should provide periodic reports on the person’s bail status to the ICC

upon request.144

3.3 THE INSTITUTIONAL FRAMEWORK OF BAIL.

3.3.0 The Judiciary.

The Constitution establishes the judiciary and vests judicial authority in the courts, which

are exercised in guidance of the principles that justice shall be done to all, not to be delayed and

shall be administered without undue regard to procedural technicalities145 and the use of suitable

technology.146 The court is the final arbiter on the question of whether bail is granted or not and

may not allow unsupported statement of either the prosecution or the police or both, to be

substituted for the courts discretion. Every criminal application for whatever remedy must be

brought by way of chamber summons in a miscellaneous criminal application to the subdivision.

The commonly filed application are: bail pending trial in the lower court; variations of bail terms

in a lower court; bail/bond pending hearing and determination of appeal.147 For juveniles, the

court shall inquire into the case and may release the child on bail on such terms as the court may

142 Entered into force in 1998. 143 Section 35, The International Crimes Act, 2008 144 Section 36, Ibid. 145 Article 159, Constitution. 146 Section 3B (1) (d), Appellate Jurisdiction Act, Cap 9, Laws of Kenya. 147Republic of Kenya: The Judiciary. Retrieved from

http://www.judiciary.go.ke/judiciary/index.php?option=com_content&view=article&id=314%3Acriminal-

proceedings&catid=139&Itemid=414 on 5 June 2011.


29

deem appropriate. Where bail is not granted the court shall record the reasons for such refusal

and shall inform the child of his right to apply for bail to the High Court. 148

The primary mechanism for oversight of pretrial detention is the right of anyone arrested

or detained to be brought promptly before a judicial authority. This prevents and uncovers

violations of the detainee’s fundamental rights, and allows release if the arrest or detention

violation.149 Judges should not engage in corrupt practices, and must be protected from outside

pressures, including restrictions, improper influences, inducements, pressures, threats, or

interferences, direct or indirect, from any quarter or for any reason.150 Judicial officers therefore

not only perform judicial, but also administrative functions, sometimes shifting the focus away

from their core judicial functions, leading to confusion because of blurred lines of authority,

responsibility and accountability.151

3.3.1 The Police.

Under the Constitution, national security should be pursued in compliance with law,

utmost respect for the rule of law, democracy, human rights and fundamental freedoms.152 The

police shall promote and practice transparency and accountability and prevent corruption and

shall comply with constitutional standards of human fights and fundamental freedoms.153 Every

person shall have the right to freedom and security and shall not be deprived of freedom

arbitrarily and without just cause,154 since an arrest amounts to a curtailment of a person’s

freedom, a lawful arrest is that which is founded on a justifiable cause. The police are

empowered, upon arrest to produce before a court or to admit any person to bail or upon

executing a bond without sureties for his appearance before a court.155 However, a person can

only be arrested on reasonable suspicion or for probable cause.156 Prompt production before a

148 The children’s Act No 8 of 2001 Laws of Kenya; Child Offender Rule 9. (1) & (2) 149 Para. M(3)(b), African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and

Legal Assistance in Africa. 150 Principle 2, United Nations Basic Principles on the Independence of the Judiciary. 151 Report of the Task Force On Judicial Reforms,(2010). Hon. Mr. Justice William Ouko. Govt Printer, pp. 63 152 Article 238 (2), Ibid 153 Article 244 (b) and (c), ibid 154 Article 29 (a) ibid 155 Section 123(1), Criminal Procedure Code, Cap 75 156 Principles M(1)(b), African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair

Trial and Legal Assistance in Africa,


30

court has been interpreted to require notification by the time of initial interrogation, and not

longer than 72 hours after arrest.157

3.3.2 The Prosecution.

The responsibility of prosecuting in subordinate courts has been delegated to qualified

members of the Kenya Police since 1972 due to the large increase of criminal cases in Kenya.158

Criminal prosecutions be detached from the Police and all prosecutors in the Police Department

redeployed to the office of the Director of Public Prosecutions following adequate training.159

Under Article 157, the director of public prosecutions exercises state powers of prosecution with

regard to the public interest, the interests of the administration of justice and the need to prevent

and avoid abuse of the legal process. Like judges, prosecutors should refrain from corrupt

practices and be able to perform their professional functions without intimidation, hindrance,

harassment, improper interference, or unjustified exposure to civil, penal, or other liability. The

office should be strictly separated from judicial functions, and prosecutors shall perform an

active role in criminal proceedings, including the investigation of crime, supervision over the

legality of investigations, supervision of the execution of court decisions and the exercise of

other functions as representatives of the public interest.160 The public prosecutor should play an

important role in guaranteeing the rights of people deprived of their liberty. Persons not yet

convicted of the crime of which they have been accused continue to be presumed innocent and

should be subject to separate custodial arrangements.161

3.3.3 The Legislature.

The Constitution establishes and vests legislative authority in the parliament.162 As a

general application of the basic principles of the law and international standards and norms

become binding on State parties either through the constitutional technique of legislative

incorporation or automatic incorporation. International and regional human rights standards

require that the circumstances and procedures under which a person can be lawfully detained be

157 Article 9(4), International Covenant of Civil and Political Rights. 158The State Law Office,2011. Retrieved from http://www.attorney-

general.go.ke/index.php?option=com_content&task=blogcategory&id=18&Itemid=56 on 25 May 2011 159 Report of the Task Force On Judicial Reforms,(2010). Ibid, p.xxxv 160 Principle 4, 10 and 11, United Nations Guidelines on the Role of Prosecutors,1990 161 Human Rights Manual for Prosecutors, IAP, at P. 60 162 Article 93 and 94


31

enshrined in domestic law. Legislative intervention in criminal procedure legislation is mainly

motivated by concerns of security and due process of the law. There has been a lot of lobbying

towards the establishment of a Bail Act to codify the laws on bail, rules of procedure, eligibility

to bail in relation to offences not only in the Penal Code163 but also under all statutes on public

order and security,164 as well as regarding criminal law and procedure.

165 Presently, the Criminal

Procedure Code is not exhaustive on process and practice of bail and leaves much to judicial and

prosecutorial discretion. Legislative reforms should seek to widen but regulate the scope of

discretion in bail.

3.3.4 Custodial Institutions.

Essentially, the role of these institutions is not only to provide correctional services and

rehabilitation but also to hold accused persons on remand, awaiting trial, for safe custody or for

want of sureties. They are established by the Prisons, Detention Camps and Borstal Institutions

Acts, 166 and are run under the aegis of the Ministry of Home Affairs. The Prisons Act under

section 72 and 73 provides for appointment of ex officio visiting judicial officers to regularly

inspect prisons.167 However, it has been argued that adjournments in courts and, due to

understaffing of the prosecution department have led to backlog and congestion of remand

homes.168 Part five of the Children’s Act recognizes the existence of remand homes among other

institutions whose role has not yet been established with regard to unconvicted prisoners.169

According to the United Nations170 there are ninety seven (97) prisons and remand

homes, two (2) Borstal Institutions and one (1) Youth Correction Centre in Kenya for both

female and male. The number of pre-trial detainees in the prisons as at 31st December 2009 was

at 19,8347 which is almost 40% the total Kenya inmate population. It is a fact that majority of

the pre-trial detainees held in Kenyan prisons are poor, illiterate, have limited or no legal

163 Cap 63, Laws of Kenya. 164 Cap 56 and 57, Ibid. 165 Cap 64, 65, 66, 67, 68, 70, 76 among other enactments; Ibid 166 Cap 90, 91 and 92, Laws of Kenya; respectively 167 (Cap 90 Laws of Kenya) 168 Kenya Government, Justice, Law and Order Sector Reform

Program….http://www.gjlos.go.ke/gjinner.asp?pcat2=agencies&pcat=statelawoff&cat=prosecutions 169 The Emerging Jurisprudence on the Provisions of Act No. 8 of 2001, Laws Of Kenya – The Children Act, Ongoya Z.

Elisha(2007). P 217 170 United Nations Conference On Criminal Justice In Salvador Brazil, The State Of Pre-Trial Detention In Kenya(April 2010).

Retrieved from http://www.lrf-kenya.org/index.php?option=com_content&view=article&id=20:un-conference-on-criminal-

justice-in-salvador-brazil&catid=13:news&Itemid=54 on 04/04/2011


32

knowledge on basic law, are young. They therefore cannot afford legal representation, bail or

bond to enable them manage their cases effectively outside the prison remand homes or

adequately self represent themselves.171

2.3.5 Other agencies and stakeholders.

a) Kenya National Commission on Human Rights (KNCHR).

This is a semi-autonomous government authority established by the Kenya National

Commission on Human Rights Act, 2002 No. 9 of 2002 for the better promotion and protection

of human rights. It is empowered to enlist the help of experts and establish such regional offices.

Among others functions, it should investigate violation of human rights upon complaint or on its

own initiative; assess and recommend on the conduct of human rights to the relevant authority;

create human rights, civic responsibilities and obligations awareness to the public; act as the

chief agent of the compliance with its obligations under international treaties and conventions on

human rights; and to cooperate with other institutions working in the field of human rights in

promoting and protecting human rights. The KNCHR, together with relevant stakeholders,

should strive to strengthen law enforcement systems, institutions and personnel, by encouraging

alternatives to pre-trial detention such as bail, surveillance reporting and non-cash guarantees.172

b) The Law Society of Kenya.

Established by the Law Society of Kenya Act 1992.173 Regarding bail practice and

administration, the objects of the society under section 4 include: to assist the government and

the courts in all matters affecting legislation and the administration and practice of the law; to

maintain and promote the rule of law through protection and assistance to the public in all

matters touching, ancillary or incidental to the law, and to do all such other things as are

incidental or conducive to the attainment of all or any of the foregoing objects. It is committed to

the promotion of the administration of justice and to access of justice for all. Under section 15,

the council may appoint and delegate its powers to a committee. The public interest and legal aid

committee is mandated to, among others, make recommendations for statutory and or

171 Ibid 172 The Nairobi Declaration,2008: Ninth International Conference of National Institutions for the Promotion and Protection of

Human Rights. Retrieved from http://www.ohchr.org/Documents/Countries/NairobiDeclarationEn.pdf on 12 august 2010. 173 Cap 18, Laws of Kenya.


33

constitutional changes necessary to facilitate legal aid, liase with other legal aid service providers

to enhance legal aid delivery and assist in the implementation of legal aid initiatives.174

c) Non-Governmental Organisations and Paralegal Institutions.

These non-governmental institutions train paralegals or non-lawyers in criminal law and

procedure, which skills enable the paralegals to teach legal literacy to unconvicted prisoners and

to help them to understand the law and how to use it to represent themselves; to provide those in

conflict with the law with appropriate legal advice and assistance; and to link up the criminal

justice system by improving communication, cooperation and coordination between the agencies.

The Kenya Prisons Paralegal Project (KPPP) works on prisons selected according to their

population of remandees. However, outside prison, paralegals have been instrumental in

developing access to justice.175 The Penal Reform International works with penal reform

activists, NGOs and governments, as well as inter-governmental organisations such as the United

Nations. It seeks to achieve penal reform by promoting development and implementation of

international human rights instruments in relation to law enforcement and prison conditions,

reduction of the use of imprisonment throughout the world and the use of constructive non-

custodial measures.

The Legal Resources Foundation Trust has been engaged in a number of advocacy

initiatives that are aimed at decongesting the prisons and enhancing access to justice for the poor,

vulnerable and marginalized. These initiatives include among others; the development of the pre-

bail assessment policies to assist the judiciary in determining bail/bond terms for accused

persons thus avoiding excessive or insensitive bail terms, reducing detention and remand prison

congestion. Involved in legal aid and assistance, thus facilitating realization of right to access to

justice.176

174Public Interest and Legal Aid Committee. Retrieved from

http://www.lsk.or.ke/index.php?option=com_content&view=article&id=138&Itemid=54 on 23 June 2011. 175 Paralegal Advisory Service http://dihr.org/legalaid/index.php?option=com_content&task=view&id=22&Itemid=32 176 Ibid.


34

CHAPTER FOUR.

CONCLUSIONS AND RECOMMENDATIONS.

4.0 INTRODUCTION.

This research was aimed at assessing the state of practice of bail in the criminal justice

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 the

rights of the victims.177 Bail is hostile to the poor and favorable only to the rich. The poor man

has not always a security to pledge.178 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. Many laws

177 Cogan J. K., International Criminal Courts and Fair Trials: Difficulties and Prospects, 27 YALE J. INT’L L. 111, 114

(2002). 178

Alexis de Tocqueville, Democracy in America, 1835.


35

establish a presumption or preference for nonfinancial conditions of release or unsecured bonds,

except United States, among others, which prohibits courts from imposing money bail that

defendants cannot meet and which therefore results in their pretrial detention.179 The reform of

pretrial detention; including the extent of its use, the manner and criteria governing its

application, and the conditions of detention, remains an important goal for many bail policy

makers and practitioners, as well as human rights lawyers and activists. 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.

Confusion has been noted especially with regard to the right to challenge lawfulness

undue delay and provisional release.180 Claims of adherence to the interpretation of human rights

by the human rights regimes, where its framework are clearly incompatible with their

requirements, has discredited the legitimate interpretation of human rights.181 The principles,

human rights instruments and jurisprudence are persuasive but not binding. So as to adhere to the

rights of accused persons, international criminal law applies in consideration to the context of its

underlying philosophy and the practical environment of operation. Failure has undermined the

aim and purpose, and led to loss of the political and therefore financial will of the international

community to support the development and sustainability of an international criminal justice

system.182

Correctly applying discretion, the international criminal courts should be able to mark

crucial aspects of the conduct of the trial within the overall requirement that the accused receive

a fair trial. However, the courts have relied extensively on the nebulous and indefinable concept

of interests of justice to the detriment of the more concrete principle of right to a fair trial, which

includes bail, and has a more detailed jurisprudential foundation. The standard of appellate

review of decisions can limit (pre-)trial exercise of discretion by overturning on challenge based

on among others unfair or unreasonable as to constitute an abuse or injudicious exercise of

discretion. The principle of proportionality when dealing with exercise of discretion on appeal is

179 Human Rights Watch, 2010. The Price of Freedom Bail and Pretrial Detention of Low Income Nonfelony Defendants in New

York City http://www.hrw.org/en/reports/2010/12/02/price-freedom on 09/07/2011 15:28 180 Prosecutor v. Krajisnik, ICTY Case No. IT-00-39 and 40-PT, 8 October 2001 181 Boas G., The Milosevic Trial: Lessons for the Conduct of Complex International Criminal Proceeding, pp. 75-76. Retrieved

from http://www.ohlj.ca/documents/695ScottBN.PDF on 12/10/2011 at 12:00 182 ibid., pp. 75-76


36

subject to application of broad principles of public international law. This leaves a lacuna in

exercise of a lower court’s discretion in criminal law matters.183

The 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.184

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.185

Although pretrial release is a fundamental right, it can be restricted by a compelling

government interest.186 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 some countries187 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 willfully misinterpreted or completely disregarded.188

The lack of a strong domestic lobby for bail or remand reform has been noted. Reformers

have been unable to win the cooperation of the main actors in the criminal justice system. The

183 ibid, pp. 219 184 The ICTY in Prosecutor v. Tadic, Case No. IT-94-1-T, 10 August 1995. 185 Hocking J., 2003, Australian Terror Laws: An Historical Critique..

http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/mdocs/88_JennyHocking.pdf on 09/07/2011 16:01 186 United States v. Salerno, 481 U.S. 739, 750-751 (1987) (while acknowledging the “fundamental nature” of the pretrial right to

liberty, “this right may, in circumstances where the government’s interest is sufficiently weighty, be subordinate to the greater

needs of society.”). 187 Guantanamo Bay detentions by the United States following attacks of September 11th 2001. 188 Chalk P., The Response to Terrorism as a Threat to Liberal Democracy. 1998.

http://www.wagner.edu/departments/gap/sites/wagner.edu.departments.gap/files/download/chalk.pdf on 09/07/2011 16:03


37

real problems with bail administration today, are not with the norms but with practices. For

investments in reform to make sense, practitioners need to globally evaluate relevant measures of

local justice as well as indicators that matter to the public as a whole. They need to compare

practices across countries and to measure detention in ways that have meaning for public

officials and citizens who are typically not concerned with jails and justice. Of course, the stable

of questions that matter to the public will vary by country and context, but there are those few

questions that capture common concerns.

Many countries have ratified international human rights instruments that allow the use of

pretrial detention only under carefully defined circumstances, yet a significant number of

criminal justice systems routinely contravene international instruments and their own domestic

pretrial detention laws and regulations. On the flipside, in criminal justice systems where

corruption is pervasive, defendants are likely to be released awaiting trial only if they have

politically powerful allies or the means to bribe the arresting officer, the prosecutor, or the

judicial officer dealing with their application for pretrial release. Detention abets corruption as

arrested persons seek to bribe the poorly paid police officers and prosecutors not to request their

detention at the first court hearing after their arrest. On most occasions, once a magistrate

remands an accused person to detention, the police fail to complete the investigation and the

filing of a charge in a timely manner, often failing to act until induced or bribed by the accused

or his/her relatives. Some corrupt police officers indiscriminately arrest persons and detain them

in police cells only to invent unsubstantiated charges for such persons if they fail to offer bribes

or other material inducements.

The paralegal projects in promoting bail or remand reforms face a number of challenges

such as recalcitrant judiciary which is uncomfortable with the added responsibility of issuing a

pretrial ruling for all detained defendants, irrespective of the seriousness of the charge leveled

against them. Further, policymakers have provided little time and limited resources for training

the judges, prosecutors, police officers, and defense lawyers responsible for making the new

system work effectively.

The fact that an offender fails to appear does not necessarily mean he or she deliberately

disobeyed the requirement to attend. An offender may not appear for a number of other reasons,

including forgetting the court attendance date (not an unlikely scenario for many offenders who


38

find their lifestyles characterised by disorganisation) or lateness. While any system might be

ideal if it worked on, many jurisdictions provide no meaningful supervision for defendants

awaiting trial, thus efforts to meet the expected results are likely to be ineffective if the resources

to enforce them are not provided.

The system of legal aid is weak and poorly funded. This has significantly led to the effect

of hindering access to justice. Legal aid and related legal empowerment efforts constitute the

most important part of legal reform because they are necessary for making rights a reality in the

lives of the poor. The current emphases on judicial and law reform, burdened by an excessive

faith in their capacities to benefit the poor, unintentionally undermine support for comprehensive

legal aid. This is evident in the fact that such programs receive little funding despite being the

key to knowledge and awareness of individual rights. There is thus much work to be done not

only in reforming legal and institutional frameworks but in achieving effective implementation

of those laws already in place and the informal aspects which have been neglected. If the impetus

for larger criminal justice system reform abates or is stalled, it negatively affects the reform of

bail practices. Given the inevitability of political shifts, the acid test of reform should not be what

can be attained, but what can be sustained.

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.

4.2.0 Cooperation and coordination.

Focus should be on practices instead of norms, the emerging art of collaboration and

cooperation, and the insistence on sound systems. There ought to be implementation of project

for reform of pretrial detention and legal aid service delivery focusing on the improved

management of the pretrial process through better information management, improved


39

communication and coordination between the criminal justice agencies, effective legal

representation for arrested suspects and detained defendants, and legislative reform.

4.2.1 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.

4.2.2 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 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.

4.2.3 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 reforms can change the way

in which pretrial detention decisions are made and administered. As a result, all defendants,


40

including those charged with a serious offense, are eligible for pretrial release as they await the

their trials provided there are sufficient alternatives.

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 persons.

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.

h) Appropriate guidance and training on making and recording decisions on bail, and that

magistrates’ courts should use forms which encourage rather than discourage compliant

decision making and recording.

i) Creation of initiatives such as pretrial services agencies should be entrenched to secure

defendants’ appearance in court. Systems that employ court date notification and pretrial

monitoring and supervision, graded in intensity as warranted by the circumstances, all

promote a defendant’s return to court while respecting the right to liberty and the

presumption of innocence. pretrial supervision would not only honor the presumption of

innocence, but would save the city tens of millions of dollars in jail costs.

j) Access to justice should be considered in its broad sense to encompass: access to a fair

and equitable set of laws; access to popular education about laws and legal procedure; as

well as access to formal courts and, if preferred in any particular case, a dispute

resolution forum based on restorative justice.


41

The decision to grant or refuse bail is made by the police, the prosecutor or the judge.

However, some of them think it is favorable for the investigation if the accused is detained. Risk

assessment is a controversial issue and the accuracy of predictions is subject to debate. Further,

failure to appear does not necessarily mean deliberate disobedience of the requirement to appear

in court since one may fail to appear for a number of reasons. Bail decision makers examine the

application for release before trial on the basis of only the written file with complicated

procedures if the application is denied.

The system of legal aid for the poor is still unsatisfactory despite it being a constitutional

entitlement and most accused persons are unaware of their right to bail. Even after revision of

the law, no statutory criteria and measures regarding bail. There is lack of a bail policy that

would give guidelines and define roles of bail practitioners.189 Sporadic criminal legislations

have been a result of political imperatives or moral outrage over particularly new crimes impose

provisions of automatic denial of bail. With unregulated discretion, courts have required

disproportionately excessive bond terms, leading to applications for review, backlog in the

criminal justice system and overcrowding in prison facilities.190 The granting of bail is heavily

dependent on an accused's financial means, and therefore the poor end up in the unconvicted

prison population. Lack of a common database hampers the utilization of bail information

schemes regarding offenders as they are processed through the criminal justice system and

hinders effective release on bail.191

Inherent is the inadequate coordination amongst the partners in the criminal justice

system and each agency tends to work independently or within its legal mandate and role.

Further there are no structures for collaboration and co-operation with private or public partners.

Even though the provisions to avoid unnecessary detention of unconvicted prisoners have been

in existence, they are not implemented, resulting in a large number of unconvicted population

within prisons. A multi-agency approach strategy is imperative to build the capacity and

capability of bail and criminal justice agencies to offer effective bail system that will enhance

effective protection of the offender’s rights and public security. The government should establish

a statutory and regulatory system that articulates the role of each partner and levels of co-

189 Achieng’ O., Effective Resettlement Of Offenders By Strengthening ‘Community Reintegration Factors’: Kenya’s

Experience. Retreived from http://www.unafei.or.jp/english/pdf/RS_No2 on 22/4/2011 190 Report of the Task Force On Judicial Reforms,(2010). Ibid. 191 Achieng’ O., Ibid.


42

operation within and without the bail system. There is need for legislative reform to remedy the

inequities underpinning the bail law and system. The concept of risk is one of the fundamental

assumptions underlying the most recent amendments to the bail legislation


43

BIBLIOGRAPHY.

BOOKS AND ARTICLES.

Bwong’wong’a, M., (1994). Procedures in Criminal Law in Kenya, Nairobi: EAEP. 3rded.

Corre, N.,&Wolchover, D., (2004). Bail in Criminal Proceedings, Oxford University Press. 3rded

Cogan J. K., International Criminal Courts and Fair Trials: Difficulties and Prospects, 27

YALE J. INT’L L. 111, 114 (2002).

Final Report of the Task Force on Judicial Reforms, Hon. Mr. Justice William Ouko, July, 2010,

The Government Printer, Nairobi.

Jackson, T., (2005), The Law of Kenya, Kenya Literature Bureau. 3rded

Langbein J. H., (2003). The origins of Adversary Criminal Trial, Oxford University Press. 1st ed.

Mountford, L., & Hannibal, M., (2006).Criminal Litigation Handbook, Oxford University Press.

The Human Rights Watch, The Price of Freedom Bail and Pretrial Detention of Low Income

Nonfelony Defendants in New York City (Human Rights Watch, 2010)


44

INTERNET RESOURCES.

Achieng’ O., Effective Resettlement Of Offenders By Strengthening ‘Community Reintegration

Factors’: Kenya’s Experience. Retreived from http://www.unafei.or.jp/english/pdf/RS_No2 on

22/4/2011

Bureau of Democracy, Human Rights, and Labor (2009) Country Reports on Human Rights

Practices. Retrieved from http://www.state.gov/g/drl/rls/hrrpt/2009/af/135959.htm on 3 August

2010.

Boas G., The Milosevic Trial: Lessons for the Conduct of Complex International Criminal

Proceeding, pp. 75-76. Retrieved from http://www.ohlj.ca/documents/695ScottBN.PDF on

12/10/2011 at 12:00

National Association of Pretrial Service Agencies (2004). NAPSA Standards on Pretrial

Release, 3rd ed. Retrieved from http://www.vccja.org/2004-NAPSA-stndrds on 23 August 2010

Pretrial Justice Institute.(2009). Pretrial Services Program Implementation: A Starter Kit,

Retrieved from http://www.pretrial.org/featuredresources on 23 August 2010

Penal Reform International(2007) Access To Justice In Africa And Beyond: Making the Rule of

Law a Reality. Retrieved from http://www.penalreform.org/publications/access-justice-africa-

and-beyond-0 on 3 august 2010

Penal Reform International(2007) Access To Justice In Africa And Beyond: Making the Rule of

Law a Reality. Retrieved from http://www.penalreform.org/publications/access-justice-africa-

and-beyond-0 on 3 august 2010

Schonteich M, Pre-trial Detention in Africa (2006). Available at

http://www.communitylawcentre.org.za_clc-projects_civil-society-prison-reform-

initiative_newsletters_newsletter_newsletter15 on 10 august 2010

The Commonwealth Human Rights Initiative (CHRI) & African Policing Civilian Oversight

Forum(APCOF) (2010) Common Standards For Policing In East Africa. Retrieved from

http://www.humanrightsinitiative.org/publications on 21/02/2011


45

INTERNATIONAL INSTRUMENTS.

African Charter on Human and Peoples’ Rights. Adopted on 27th June 1981 by 18

th Assembly of

Heads of States of the Organisation of African Unity. Entered into force on 21st October 1986.

European Convention on Human Rights (1950)

International Covenant on Civil and Political Rights (1966). Adopted by United Nations General

Assembly Resolution 2200A(XXI) of 16th December 1966. Entered into force on 23

rd March

1976.

The Statute of the International Criminal Tribunal for the former Yugoslavia. Adopted by

Resolution 827 of 25 May 1993

The Statute of the International Criminal Tribunal for Rwanda. Adopted by Resolution 955 on 8

November 1994.

The Rome Statute of the International Criminal Court(ICC). Adopted July 1998, Entry into force:

July 2002

Universal Declaration of Human Rights(1948). Adopted by United Nations General Assembly

through Resolution 217A(III) of 10th December 1948.

NATIONAL LAWS, BILLS AND ACTS OF PARLIAMENT.

The Constitution of Kenya(2010)

The Criminal Procedure Code, Cap 75 Laws of Kenya, Revised Edition 2010 (2008)

The International Crimes Act, 2008, Laws of Kenya

The Appellate Jurisdiction Act, Cap 9, Laws of Kenya.

The children’s Act No 8 of 2001 Laws of Kenya

The Law Society of Kenya Act 1992, Cap 18, Laws of Kenya.

The Kenya National Commission on Human Rights Act, 2002 No. 9 of 2002

The Prisons Act, Cap 90 Laws of Kenya

The Bail Act (1976) of the United Kingdom.


46

LIST OF CASES.

Alhaji Mujahid Dukubo Asari v Federal Republic Of Nigeria S.C. 20a/2006

Margaret Magiri Ngui v. Republic Criminal Application No. 59 of 1985, High Court, Nairobi,

Unreported

M. Lunguzi vs. Republic Msca Appeal No. 1 of 1995 (unreported)

Prosecutor v. Hadzihasanovic;,19 December 2001

Prosecutor v. Krajisnik, ICTY Case No. IT-00-39 and 40-PT, 8 October 2001

Prosecutor v. Tadic, Case No. IT-94-1-T, 10 August 1995

Re Abdulla bin Mohamed(1914-15) EALR 166

Republic Vs Muneer Harron Ismail & 4 Others, H.C. Criminal Revision No. 51 Of 2009

Republic v Danson Mgunya & another [2010] eKLR

Republic vs. Susan Akoth Opiyo H.C.Cr.C No. 236 of 2003,

R. v. Hall, [2002] 3 S.C.R. 309, 2002 SCC 64

Republic v. Victor Odeougu & Another(Unreported)

Somo v. Republic (1972) E.A 476 (HCK)

Smith v Attorney-General,Bophuthatswana 1984 (1)SA 182,

Thomas Lubanga Dyilo v Prosecutor ICC-01/04-01/06-824, 2007.

United States v. Salerno, 481 U.S. 739, 750-751 (1987)

W’Njuguna vs R, Miscellaneous Criminal Case No. 710 of 2002 KLR