Excessive Bails Imposed by Kenya Judiciary Are Detention Without Trial in Another Form

By Ndungu Wainaina

Kenya judiciary trend of imposing excessive bail even on non-serious crimes is deeply disturbing. Bail is never an instrument of oppression. Imposing tougher bail conditions is never panacea for the crime wave, which has swept the country.

What is required is that there ought to be a balance between the interests of society and that of the individual suspects. As much as the State has a duty to tackle crime, it also has a duty to ensure that the law is just and reasonable. It is dangerous to limit the exercise of judicial discretion and leave the bail matter in the hands of the police officers who are preparing the reports to Court.

The answer to the crime wave is certainly not to lock all Suspects for the longest possible time. The answer lies in better criminal investigation; the eradication of corruption and malpractice in the police and other law enforcement agencies; expeditious conclusion of criminal trials according to law and perhaps even stringent punishments on those found guilty.

Bail is very important justice feature expressing fundamental human right& right to liberty. Imposing tougher bail conditions trash rule of law and is an assault to fundamental human rights. Tougher bails keep behind bars many innocent people pending trial, causing grave travesty of justice if wrongfully accused of committing crimes.

A court is not supposed to impose bail merely in order to punish the accused or to demonstrate disapproval of alleged crime committed by the bail applicant. To do so would amount to a form of detention without trial. Constitution ensure that every person arrested for allegedly committing a crime has the right to be brought to court and to be released from detention if the interests of justice permit.

The question of whether it would be in the interest of justice to grant bail will focus primarily on securing the attendance of the accused at trial and on preventing the accused from interfering with the proper investigation and prosecution of the case.

In South Africa Constitutional Court 1999 case of S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat, Court said, “The broad policy considerations contemplated by the “interests of justice” test … can legitimately include the risk that the detainee will endanger a particular individual or the public at large. Less obviously, but nonetheless constitutionally acceptably, a risk that the detainee will commit a fairly serious offence can be taken into account. The important proviso throughout is that there has to be a likelihood, i.e. a probability, that such risk will materialise. A possibility or suspicion will not suffice. At the same time, a finding that there is indeed such a likelihood is no more than a factor, to be weighed with all others, in deciding what the interests of justice are”.

While imposing bail, there need to thoroughly conduct enquiry not primarily concerned with the question of the guilt of the accused. The focus at the bail stage is to decide whether the interest of justice permits the release of the accused pending trial. Bail will usually be denied to protect the investigation and prosecution of the case and to protect society against the possible future life threatening criminal acts of an accused.

The bail question must be interpreted and applied with reference to human rights based policy considerations. It is not clear that Kenya courts make decisions on bail within the framework of human rights centred policy considerations, especially in cases where an accused is poor or does not have legal representation or is suspected of very mundane offence.