Bail/bond in Kenya: The need for reforms has never been more urgent

By Ivan Kivumbi

The right to bail/bond is anchored in the Constitution of Kenya 2010. Article 49(1) h States that an arrested person has the 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. Article 49(2) further States that person shall not be remanded in custody if the offence is punishable by a fine only or by imprisonment for not more than six months.

Our criminal justice system, whose practice and procedure is anchored in the Criminal Procedure Code, underlines the provisions for bail/bond under Sections 123, 124, 125 and 126. These include release of a person on his or her own recognisance with or without sureties, and by depositing a certain sum of money set by court or police officer with or without sureties.

Different reality

Based on the preceding paragraphs, it is clear that the intention of the drafters of the Constitution intended for the equal enjoyment of the right to bail and bond by all arrested within the jurisdiction of Kenya. This is irrespective of their social, economic, political status etc.

This however, is not so. In reality, where an accused has the money to afford bail, it is not a big deal. However, when an accused does not have set bail money, it becomes an unfair discriminatory provision, with dire consequences to the accused. That is, they most likely will be remanded for the entire time their case is being tried, will lose their job for being absent from work, and if the accused is acquitted, there will be no compensation for them.

My assertions are premised on my experience as an advocate practising criminal law, and representing a number of clients from low-income background. These are the impoverished, “very shallow if not empty pockets”, majority of whom find themselves trapped in the hallways of the criminal justice system for various reasons which may range from misdemeanour offences like petty theft. These are the very ones that cannot afford to bail themselves out; neither can they afford an advocate. They therefore find themselves at the mercy and whims of a dilatory prosecutor whose only vigorous if not rehearsed submission is “am not ready to proceed, I humbly request for another mention date.”

Half-hearted reprimand

On the other hand, a well to do accused person will hire a lawyer who will pace up and down the court corridors to ensure that his or her client does not even spend an hour in a jail cell by getting them released on bail/bond. Depending on the nature of the crime, where they can afford to lose the money set down for bail, they would most likely abscond court.

Now contrast the same with my recent observation at the Chief Magistrate’s Court in Kibera. The Prosecution was not ready to proceed in at least 10 cases for whatever reason and therefore requested for an adjournment. There was expectedly no protestation from the accused, and after a perfunctory reprimand of the Prosecutor by the court, the accused persons where remanded in custody.

One wonders if the prosecutors live on the very earth the rest of us do, breathe the same air like all of us do, and whether they ever do picture trading places with these accused persons. If this were so, a “revolutionary judicial officer”, in touch with reality, would admit the accused to bail/bond on his or her own recognisance.

This is the asinine part of it all where we are faced with these youthful Kenyans with no legal representation and maybe, with a pinch of salt are told of their right to bail/bond. They, however, cannot raise the money and are incarcerated for months. This young Kenyan may be a casual labourer and, if he cannot make it to the construction site by 6 a.m. any day, will not earn his family’s daily bread.

Put plainly, in my practice, I have seen countless accused persons who cannot even afford a fine of Sh500 to enable them be released, especially at City Court. On occasions they are at least given the alternative – “kutafagia mazingira” (social service to society).

The State shall always put up a spirited fight against the release of indigent defendants on their own recognisance, arguing the fear of absconding from court attendance. Amazingly, any reasonable man on the test of “a man who wakes in the morning catches a bus to work and back home” will rightfully wonder as to who is most likely not to abscond court or jump bail between a well off accused who is capable of even leaving the country or this impoverished accused who only knows his “mtaa” (small urban dwelling) in Kibera, or “ushago” in Ruaka.

The State may be against a system of unsecured recognisance for its risks of greatly reducing the incentive for accused persons to appear, and also affronting the principle that persons should not be relieved of the requirement to make bail merely upon a claim of indigent status.

Pretentious

I must, however, say that this argument is not only pretentious but also unfathomable. Our Criminal justice system has come such a long way, especially through digitisation and digitalisation for us not to utilise it to its full potential. We should now be looking at pre-trial service for the indigent, such as ankle monitors, frequent drug testing and phone tracking, among others. Besides, if the State can accept a bank guarantee of a whopping Sh140 million to post bail for an accused person, then I believe it can counter its fear of unsecured recognisance.

If indeed, the State accepts the ingenuity of defence lawyers to think outside the box in representation of their clients in posting bail, then the its failure to extend the said leeway to the impoverished and find them alternatives outside the conventional practice breeds discrimination by the system itself.

The principle of “innocent until proven guilty” is given credence by principles such as “bail/bond”, and “a fast and speedy trial”. In reality, however, this seems to have been put up for sale by the system to those who can afford it, thereby leaving the indigent to crowd our cells.

Money bail contributes to unnecessary detention of many low-risk pre-trial accused persons, inappropriate release of high-risk accused persons who have financial means, and unwarranted financial burdens on low-income constituencies. This is hard-boiled lunacy, that of putting one class above other, and it is disgustingly discriminatory in every sense.

It is consummately unconstitutional to hold an accused person in custody based solely on their inability to pay for bond/bail or based on the prosecution’s unfounded fear of non-appearance of unsecured recognisance. These actions definitively violate the Constitution of the Republic of Kenya 2010, particularly Article 10, which underpins the State to uphold national values and principles of governance to include, among others non-discrimination and protection of the marginalised; Article 27, which underpins equality before the law, equal protection and benefit under the law and non-discrimination; and Article 49, which provides for the right to bail.

The provisions fixed for bail dissertated under our Criminal Procedure Code, Sections 123, 124, 124 and 126, pay no particular regard to the inability to pay, which undoubtedly engineers discrimination based on indigence. The said provisions give no alternatives, which in essence denies equal protection to one class of people in our society and the courts have themselves not helped the situation.

In the administration of justice, the courts have a duty to ensure justice is served equitably to all regardless of status. All misdemeanour offenders that cannot afford to post the monetary requirement for bail ought to be released on their own recognisance, and the courts should be at the forefront of advocating for this, especially where the accused has no legal representation. I believe this will jolt the prosecution into working to help decongest our prisons and police cells as most of the occupants have not been convicted of any crime.

Bail reforms

There is a continued reliance on money bail as the mechanism in various jurisdictions for release and detention; however, quite a number of jurisdictions have endeared themselves to bail reforms.

In denouement, the Constitution under Articles 10, 27 and 49, reveals a clear link between non-discrimination and the right to bail. How can we expect our Supreme law to be regarded highly if we attach so little importance to its provisions by allowing this effrontery to persist? By allowing ourselves to be this oblivious and impervious to the plight of the impoverished, we perpetuate an unforgivable effrontery against the letter and spirit of our supreme law of the land.

Writer is Advocate of the High Court