Kenyans took to social media to protest a court decision to release on bail Embakasi East MP Babu Owino.
Milimani chief magistrate Francis Andayi granted Owino Sh10 million cash bail. He is charged with the attempted murder of Felix Orinda alias DJ Evolve.
The ruling sparked sharp reactions in the court of public opinion.
Bail and bond provide guarantees that accused persons will attend trial. They are securities to procure the release of an accused person from legal custody on the undertaking that he or she will appear for trial.
The Constitution gives every accused person the right to liberty, except where the law allows for their detention.
“Every accused person shall be presumed innocent,” Article 50(2) of the Constitution stipulates. The presumption of innocence means accused persons should be released on bail or bond whenever possible.
Bail and bond guidelines affirm that pretrial detention should be a measure of last resort. Criminal justice institutions should make every reasonable effort to avoid it.
The Constitution demands that an arrested person has the right to be released on bail or bond.
The presumption of innocence means pretrial detention should not constitute punishment. Accused persons are not convicts and this fact of law should be reflected in their treatment and management.
The International Covenant on Civil and Political Rights, to which Kenya is a signatory, provides that “accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.”
The law requires that bail or bond money and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial.
“Accordingly, bail or bond amounts should not be excessive nor so low that the accused person would be enticed into forfeiting the amount and fleeing,” the guidelines state.
Bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person.
At the same time, the state has a duty to ensure public safety between the time of arrest and trial of accused persons, and a duty to protect the integrity of the criminal justice system.
This means that where there is convincing evidence that an accused person may undermine the integrity of the criminal justice system, then a need arises to either deny such a person bail or bond, or set stringent bail or bond terms.
“The interests of justice therefore demand the protection of the investigation and prosecution process against probable hindrance by accused persons,” the guidelines say.
In appreciating the need to balance the rights of accused persons with the interests of justice, the Constitution states that an accused person can only be denied bail or bond where the court establishes that there are compelling reasons not to be released.
“In denying an accused person bail or bond, it must therefore be demonstrated with convincing evidence that the release will present risks that cannot be managed under any conditions”.
Police officers and judicial officers should consider the safety of victims and victims’ families in fixing the amount of bail and the release conditions for suspects.
The primary factor considered by the courts in bail decision-making is whether the accused person will appear for trial if granted bail.
The seriousness and penalty for the crime a person is charged with is the first consideration in giving bail, according to the guidelines.
Where the evidence against the accused person is strong, it may be justifiable to subject the person to pretrial detention.
Bail and Bond Policy Guidelines state that where the weight of the prosecution’s case is very strong, it is presumed that such a person has an incentive to abscond and should therefore be denied bail.
Coupled with other adverse factors, a person’s character can form a basis for denial of bail or bond.
Failure of the accused person to observe bail or bond terms on previous occasions is a good ground for denying bail or bond.
Where there is evidence of likelihood of the accused interfering with prosecution witnesses if released, he or she may be denied bail or bond. Bond can also be denied if the court cannot impose conditions to prevent such interference.
Defilement cases, for example, present a special challenge as the accused person and the victim might negotiate to settle the case out of court.
Some courts deny accused persons bail until witnesses, especially the victim, have testified in such cases. The courts have adopted the same approach in murder cases, particularly where the witnesses are closely related to the accused.
One can be denied bond where there is a need to protect the victims of the crime from the accused person.
The relationship between the accused person and potential witnesses can also be a reason for denial of bond.
Where the accused person is a minor, the denial of bail or bond is considered not to be in the best interest of the accused person.
An accused foreigner, one who does not have a fixed abode or a visitor from a country with which Kenya does not have an extradition treaty is considered a flight risk.
Pretrial detention may be necessary to preserve public order where it is demonstrated that the public response to an offence is such that the release of the accused person would likely to lead to a public disturbance.
An accused person may also be denied bond for his protection, especially when he faces risk of being lynched or hurting himself.
There is no uniformity in how the courts determine bail or bond.
However, what is the appropriate standard of proof? For example, where the prosecution alleges that an accused person will interfere with witnesses, should it prove this allegation on a balance of probabilities or beyond reasonable doubt in order to persuade the court? And what form of evidence should the prosecution present to persuade the courts of the existence of compelling reasons?
