The question of anticipatory bail

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By Newton Arori

Bail pending arrest, also called anticipatory bail, is a peculiar form of bail for it is issued even before one is arrested. One typically applies for anticipatory bail if he/she apprehends that there is a move to have them arrested on false charges, or that a false case is likely to be built up against them.

In Kenya, anticipatory bail is not expressly provided for in the Constitution or in statute, thus one has to look to rely on case law. In this regard, the High Court in W’Njuguna v. Republic (2004) eKLR stated, “While the right to anticipatory bail or bail pending arrest is not specifically provided for by statute, the same right is envisaged by the Constitution…the right to anticipatory bail has to be called out when there are circumstances of serious breaches of a citizen’s rights by an organ of the state which is supposed to protect them… judges of the High Court cannot become toothless watchdogs of the Constitution which they have sworn to defend…the Constitution itself has granted wide discretion to the High Court presumably to fill the gaps which the statute left out…”

While anticipatory bail is not express in written law, the court has inherent power and a duty to give orders which enforce and secure the fundamental rights of an individual. Anticipatory bail finds support in, among other constitutional provisions, Article 244(c) which requires the National Police Service to comply with constitutional standards of human rights and fundamental freedoms, and Article 159(c) which demands of the court to at all times apply the law in a way that does not contravene the Bill of Rights.

When can a court grant anticipatory bail?

To start with, which court has jurisdiction to hear and determine such cases? This question had been a source of controversy, with some magistrates’ courts declining to issue orders for anticipatory bail citing lack of jurisdiction. However, in 2016 the High Court settled the debate when it held, “Every court in Kenya is founded upon the Constitution of Kenya…A magistrates court has inherent power to protect fundamental rights…A magistrates court should not decline jurisdiction to hear and determine an application for anticipatory bail…”

Any court may therefore issue an order for anticipatory bail.

Even so, a number of applications for this order have been dismissed for falling short of the standard required for anticipatory bail to issue.

In Richard Makhanu v. Republic (2014)eKLR, Makhanu (the applicant) moved to court seeking orders that he be admitted to bail pending arrest and that the OCS Bungoma Police Station or any officer be restrained from arresting, detaining or otherwise interfering with the applicant’s freedom till further orders.

The application was premised on grounds that the applicant was apprehensive of an intended arrest based on what he claimed were false allegations – that he had caused grievous bodily harm on his wife. The claims were meant to have him incarcerated to prevent him from conducting another case, the applicant contended.

The court found that the applicant had not shown why he should avoid the investigations, a fundamental step in the justice chain. Further, while the applicant had alleged that his rights would be violated, he had not specified which rights would be violated and how. Neither had he demonstrated the likelihood of any serious breach of his rights by the police to warrant anticipatory bail. The judge held, “to my mind, a threat of investigation is no reason enough to grant (anticipatory) bail.’  The application was dismissed for lacking merit.

In the case of Mandiki Luyeye v. Republic (2015) eKLR, the applicant (Luyeye) sought orders that he be granted anticipatory bail before arrest. This was on the basis that the police were being used to intimidate and oppress him, and that he was entitled to freedom of movement. According to the applicant, the intended arrest and/or prosecution was an abuse of the law and was oppressive.

The facts around the case were as follows: Sometime in 2015, Luyeye was introduced to one Mohammed, a businessman dealing in precious stones. Later, a person associated with Mohammed was arrested on allegations that he and others had defrauded the businessman of some money. Subsequently, the police began visiting Luyeye’s premises to inquire about the persons involved in the fraudulent scheme. According to Luyeye, he did not know those persons, and so the police were harassing him and breaching his constitutional right to freedom. Luyeye sought anticipatory bail pending arrest in case the police intended to charge him. He feared that if he was arrested, he would be held in solitary confinement.

It was the court’s finding that the applicant did not give the identity of the police officers he alleged had the intent of arresting him. This made it difficult or the court to ascertain whether they were indeed police officers. Neither could the court ascertain the alleged harassment. The applicant had even failed to prove that the police wanted to arrest him for no apparent reason.

In sum, the court concluded that the applicant’s claim was based on unsubstantiated fears which did not amount to an infringement of rights.  The court further observed that even in the event that of the applicant’s arrest, the Constitution has provided safeguards against arbitrary incarceration beyond 24 hours. The application for bail was dismissed.

In some cases however, applicants have successfully applied for anticipatory bail. The case of Susan Mbinya Musyoka v. Inspector General of Police & Another (2016) eKLR is one example. Here, the applicant was a member of parliament, the women representative of Machakos County.

Her case was that she had received a call from the Machakos County Police Commandant who summoned her to appear without disclosing the reasons for the appearance. Due to official engagements, Hon. Musyoka could not attend. Further summons were issued. Even so, she was still not informed of any offence she might have committed.

A day prior to Hon. Musyoka being first summoned, a local newspaper had had carried a story attributed to her calling upon the President to end corruption. According to Hon. Musyoka, the police were seeking to arrest her on fabricated charges with the aim of threatening her and limiting her participation in the country’s current affairs.

She cited a plethora of authorities in support of her case, including Article 47(2) of the Constitution which states, “If a right or fundamental freedom of a person has been or is likely to be adversely affected by an administrative action, the person has the right to be given reasons for that action.”

The court ruled in favour of the applicant and issued an order for anticipatory bail. It found that the applicant’s fundamental rights of expression, conscience thought and freedom of movement were being threatened.  Justice Ogola held, “…in the upshot, this court is satisfied that the applicant has established a case for anticipatory bail pending arrest.”

In the instant case, it can be seen that the circumstances – from the conduct of the police, to the occupation of the applicant as a politician – strongly suggested an imminent infringement of rights. The case was helped further by the fact that the applicant tabled sufficient evidence in support of the application.

In conclusion, to succeed in an application for anticipatory bail, you must clearly show – by disclosing special facts and events – an anticipated breach of fundamental constitutional rights. The fear of breach to rights must be real and demonstrable. Anticipatory bail will not issue where an applicant labours under apprehension founded on rumours and unsubstantiated claims. ^

Writer is a lawyer at Ongoya &Wambola Advocates

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