Bail and bond policy guidelines are here, but are we out of the woods?



The administration of bail and bond by courts and police officers is a crucial procedure in the Kenyan criminal justice system. At the fulcrum of bail and bond administration is the need to balance adherence to the Constitutional right of an  arrested or accused person to bail, the rights of the victims of crimes and the public interest for safety by keeping away persons deemed to be a threat to safety via denying them bail.

But attaining a balance of these rights and interests has been challenging when one considers the general administration of bail and bond. According to research conducted by the Legal Resources Foundation on Kenya’s criminal justice system in 2011-2012, the administration of bail and bond is characterised by including the following: unreasonable bail terms that are often beyond the means of arrested and accused persons; arbitrariness in granting or denying bail to arrested persons especially in traffic offences; absence of standard procedures on how to make bail application in courts, particularly at the magistrate’s courts; absence of uniform procedures in processing and releasing accused person who have posted bail; and that views of victims are seldom considered during bail application.

Observations and conversations by legal practitioners point to consensus that the administration of bail and bond is compounded by lack of awareness and inadequate information among members of the public on the substantive and procedural laws on bail and bond laws and procedures, and common tendencies of accused persons to abscond on bail. These characterisations have, in turn, fuelled unfavourable perceptions towards the courts, and competence of the police in administering bail and bond – under the old Constitutional dispensation and the “new” one. For example, it will be noted that in the wake of increased cases of terrorism, a section of Kenyan politicians “strongly urged”, by way of roadside declarations, the Kenyan Judiciary not grant bail to persons charged with offences under the Prevention of Terrorism Act, 2012 in toto. These declarations, which obviously appealed to vox populi, were oblivious of the general overarching legal architecture on bail and bond, particularly the Constitution of Kenya, 2010.  The declarations were reminiscent of the proclivity to silo-perception which veils the fact that granting of bail and bond involves various stake holders such as the police, probation officers, legal practitioners and the public.

Article 49(1) (h) of the Constitution guarantees that “An arrested person has the right … to be released on bail and bond, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.” Further, Article 49(2) provides that ‘A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.” Albeit these Constitutional guarantees, it is not uncommon for suspects of minor of offences to be remanded, for arrested persons not to be released on reasonable conditions, and for accused persons charged with same offences under similar circumstances being granted bail on different terms, or an accused person being granted bail and his or her co-accused being denied bail.

Generally, there is consensus among legal practitioners, members of the public and particularly judicial officers that absence of guidelines for which courts and police should refer to while exercising their discretion in making decision on whether to grant bail to arrested and accused person is rather challenging and generally impacts on the criminal justice system. For example, because of unreasonable bail terms and the failure to grant bail to persons that fall under the ambit of Article 49(2) of the Constitution, the result is chronic congestion in remands and prisons.

There is also general consensus on the need to have policy and guidelines to guide agencies in the criminal justice sector to coordinate in bail and bond administration, for example, on how the bail information reports are to be used by the courts, and how to address congestions in remands and prisons. According the Kenya Prisons Services, the Government of Kenya’s 120 prisons has a capacity of 26,000 prisoners yet two thirds of this population are remandees, which significantly overstretches prisons’ resources, not to mention that taxpayers end up providing meals, accommodation and other expenses for persons in remand – persons about whom taxpayers would ordinarily repulse the suggestion that they should sustain them in ordinary sense.

This article takes a narrative stance to highlight the current effort aimed at addressing the challenges in the administration of bail and bond, and therefore stays clear from sparring on the disparate cases laws in respect of bail and bond, and by extension the practices by the police in bail and bond administration.

Against the aforementioned background, on challenges on bail and bond administration, Chief Justice Dr Willy Mutunga appointed the Task Force on the Development of Bail and Bond Policy Guidelines on 30th May 2014. The Task Force included representatives from the Judiciary, Kenya Prisons Service, Probation and Aftercare Services, National Police Service, Law Society of Kenya, Directorate of Public Prosecution, and Legal Resources Foundation. Under the guidance of the Deputy Chief Justice Kalpana Rawal and leadership of its chairperson, Lady Justice Lydia Achode, the task force formulated bail and bond policy guidelines and an implementation strategy on the bail and bond policy guidelines that were launched on 20th March 2015 that heralds efficacious administration of bail and bond.

Generally, the policy guidelines set out the principles to govern bail and bond administration that are drawn from both from the Kenya Constitution and international best practices. Such principles include: the right of the accused person to be presumed innocent; the accused person’s right to reasonable bail terms; the accused person’s right to liberty; the requirement for bail determination to balance the rights of accused persons and interest of justice; and consideration for the rights of victims during bail determination.
The policy guidelines illuminate the situational analysis encountered by the Task Force in the course of carrying out its mandate with respect to administration of bail and bond by the police and courts, including challenges faced by them. The challenges include absconding by accused persons on bail because of absence of a bail supervision system, and complications encountered by the police in complying with the Constitutional obligation to arraign arrested persons in court within 24 hours of arrest.

The policy guidelines also illuminate how agencies such as the Probation and Aftercare Service and the prosecution impact on the bail decision making by the courts. For example, the courts’ utilisation of probation bail information reports in bail decision making and the challenges surrounding those reports such as integrity of the reports; and the onus of the prosecution to establish compelling reasons to the court for denial of bail to accused persons, particularly how the prosecution presents evidence that constitutes compelling reasons and determination of whether particular evidence is cogent to amount to compelling reasons.

It is worth mentioning that, generally, bail and bond administration has been compounded by that fact there is no coherent jurisprudence to guide the prosecution on what may constitute compelling reasons, and invariably persuade courts of what the compelling reasons are. Rather, the prosecution has often relied on case law to persuade courts on what compelling reason is, until in 2014 when Parliament amended section 123 of the Criminal Procedure Code through the Statute Miscellaneous (Amendment) Act 2014 to include Section 123A that stipulates circumstances to be taken into account by the courts while making decision on bail and bond. The circumstances include: nature or seriousness of the offence; the accused person’s antecedent; and the safety of the suspect or accused person. The policy guidelines take into account this provisions and the prevailing situational analysis that includes the research findings, such as the aforementioned one by the Legal Resources Foundation.

The policy guidelines shed light on the state of the detention facilities. They are few in number and, often, women and men, and in some cases children, are held in the same detention facilities. The absence of a policy on who should be responsible for transporting remandees often results in some detainees missing their court appointments. This has exacerbated the existing challenges within the Kenyan criminal justice system.

In recognition of the fact that bail and bond administration involves various agencies – Judiciary, Kenya Prisons Service, Probation and Aftercare Services, National Police Service, and the Directorate of Public Prosecution – the policy guidelines provide policy directions to these agencies. Notable directions include: the police to inform arrested persons of their right to bail; victims of offences to be informed when decisions about bail are being made; persons whose rights have been violated by the police in respect of bail decision making having an option to complain and appeal to the Independent Police Oversight Authority; the right of accused person to disclosure of information to be used by the prosecution to object bail; probation officers to provide reports within two weeks upon request by the courts; the courts to give an opportunity to accused persons to rebut assertions by the prosecution and the victim of crimes; as well as the bail conditions that may be imposed by the courts upon the accused persons, such as requirement for accused persons to vacate their residences during duration of trial. Further directions include accused persons on bail being placed under the supervision of Probation and After Care Services. These directions aim at ensuring inter-agency coordination to ensure efficacious administration of bail and bond.

In the course of developing the policy guidelines, the task force involved members of the public and key stake holders in its development by collecting their views thus adhering to the Article 10 of the Constitution’s national value on public participation. For example, the Task Force invited the members of the public to submit their views, experiences and recommendations on bail and bond, through its advertisements in the local dailies on 13th and 20th August 2014. Further the task force held countrywide consultations with various court user committees; held stake holders’ meetings with judicial officers, police officers, legal practitioners and civil society organisations that offer legal aid; and conducted visits to correctional facilities and police stations where it held consultative meetings with remandees, prisons authorities and police officers to secure their input into the policy guidelines.

The task force’s involvement of the members of public and the aforementioned stake holders while developing the policy guidelines is a step in right direction and will contribute towards securing public ownership of the policy guidelines. But the true test comes at the implementation of the policy guidelines as to whether it will address the general challenges and alleviate the forlorn situation in respect of bail administration. Of significant importance is how agencies within the criminal justice system – Kenya Prisons Service, Probation and Aftercare Service, National Police Service, and the Directorate of Public Prosecution in conjunction with the Judiciary – will carry out inter-agency coordination. Fortunately, these agencies will be not starting from tabula rasa as the task force documented recommendations in its report on how effective interagency coordination can be attained, and also generated an implementation strategy that highlights what needs to be done by these agencies among others and the timelines for carrying out those actions.



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