By David Omondi
Recently, a friend (an actuary) asked what the difference between bail and bond is. This made me wonder: if this well-educated person (he is comparatively advanced in his field) had no clue what it is, then surely many people, particularly the uneducated do not know what it is.
Various initiatives, such as Law Clinics, make people aware of such rights in slum areas, however, the reach of these initiatives may not be sufficiently robust. Taking note of how poverty in this country has been criminalised, I think that a case could be made that indigent groups are in great need of further education on this matter; especially as there is a higher chance they will come into contact with the justice system and a system of law enforcement which seeks to extort them.
Recent happenings in Tanzania around the issue (with the country’s apex court having a somewhat surprising disposition) may also warrant a brief recollection of the state of affairs in Kenya.
Definition of terms
So, what is bail? Bail is an agreement often between three parties; (i) the accused person, (ii) the person who promises to ensure that the accused will appear in court and abide by the bail conditions (a surety), and (iii) the court. A certain amount of money is deposited and if the accused person fails to abide by the agreed terms the amount is lost, otherwise it is refundable.
Bond on the other hand, is a promise that does not necessarily need a surety and entails the accused following the conditions set out in the promise. Failure to do so would lead to the accused paying the sum agreed to in the bond. Basically, a bond is a promise that one will appear, with or without a deposit of funds.
There remains no statutory definition of either of these terms in Kenyan law.
Issues arising: Discretion & Corruption
Bearing this in mind, a few critical issues arise; which offences can be considered bailable and which offences cannot? How is this determined? Should suspects of corruption and theft of public funds be held to the same standard?
The position on this matter was once clear under Section 72(5) of the repealed Constitution of Kenya read together with Section 123(1) of the Criminal Procedure Code. If one was suspected to have committed an offence punishable by death, then a refusal by the court to grant bail was certain. This position was heavily criticised by scholars such as Michael Zander who at the time of his research found that 36.5% of those in detention in Britain in 1967 were awaiting trial; and 20% of those actually convicted received non-jail sentences (meaning that they, and those not convicted, should never have been in custody that long). I shudder to imagine what the situation was in Kenya.
This threshold may not seem very high to the average person, but the time spent in detention is highly detrimental to an innocent individual and to persons undeserving of incarceration. This was especially so in view of long periods between arrest and trial. Further, there was no provision for compensation for this unfair treatment and remand centres were always extremely overcrowded.
As of 2010, new “challenges” emerged because Article 49(1)(h) of the new Constitution stated that an arrested person has the right to be released on bond or bail on reasonable terms pending a charge or trial unless there are compelling reasons not to be released. Moreover, it prohibits the remanding in custody of arrested persons for offences punishable by a fine only or by imprisonment for more than six months. It Is crucial to emphasise that this does not mean that everyone who falls under this category is entitled to bail or bond. An assessment of the offenders must be carried out on a case-by-case basis, as they may never return once they are set free.
Due to the provisions above, there was a surge in the number of people seeking bail. Some of these people had committed capital offences. Secondly, the Criminal Procedure Code at Section 123(1) now appears inconsistent with the given constitutional provisions as it lists some offences as un-bailable, an issue that Patrick Kiage argues defence lawyers are likely to have been, and to continue to be, intrigued by.
This state of things may raise some concern in society… you, the reader, may be shifting uncomfortably in your seat at the thought that a suspected murderer is walking around freely in your community. Public safety would be your biggest worry. Numerous judges have, since the promulgation, tried to adjudicate on this matter as we shall now see. We may at this point remember that the Constitution is the supreme law of the land.
A few cases where this came up and the answers given by courts
I will now endeavour to summarise the opinions and reasons given by judges in some cases that have stood out when it comes to the issue of bail and whether it really is open to all.
In the Kitende Muinya case, the accused was charged with murder and requested release on bail. The High Court agreed with the accused that there was no provision for non-bailable offences in the new Constitution, however, it stated that the granting of bail is not an absolute right and must be looked at on a case-by-case basis. In this case, the accused had run away from home for two months. Such behaviour showed that if given the chance he would attempt to escape and would not attend his trial. The position taken by the judges here is one that seems agreeable to me. Reading the Constitutional provisions regarding this matter, it appears clear that judges indeed have the power to carry out such an analysis and give reasons as to why bail should not be granted.
The case of Danson Mgunya, serves to expound on this point. Here, the accused people were well known public servants in the community and most things about how they lived their lives were known to the residents of the area. They made no effort to abscond prior to their arrests for allegedly committing murder. They were elderly members of society, and no reasons could be found to continue holding them by the judges. It was unlikely that the accused persons would undermine the integrity of the criminal justice system by interfering with evidence or intimidating witnesses.
This is key, what we see above is the ability of judges to reason and make decisions within the laws of the country taking into account extra legal considerations but maintaining the system’s values (an area discussed by Karl Klare in his paper entitled Legal Culture and Transformative Constitutionalism).
Lastly, some attention must be given to corruption cases as this has always been a big challenge in this country. I write this with an inkling that most Kenyans, with good reason, believe that such suspects should not be set free on bail. In fact, the effect of such crimes was discussed at length by the Supreme Court of India in Nimmagadda Prasad v Central Bureau of Investigation where it was stated that; these offences should be taken to be grave as they affect the economy of the country and pose a serious threat to the citizenry. Despite the clamour for judicial officers to be extremely weary in granting bail to such suspects; this is rarely done and most prominent individuals tend to go free.
Our varied moral opinions on the issue of corruption notwithstanding, the fact remains that Anti-Corruption Courts must ensure that litigants receive a fair hearing and must assess each corruption case individually in order to ensure that bail terms are not unreasonably denied or when given, not exorbitant.
Courts aside: Our takeaway from this piece
It may now be appreciated that the right to bail is not absolute, but the following statement gives another perspective on this matter that I found rather profound and felt the need to add here, the right to bail is automatic, not absolute. In his paper, The Right to Bail in Kenya, Victor Owiti expounds on this opinion by saying that bail should be granted as a matter of right if the prosecution has no problem with it and, even when the accused is unrepresented, bail should be granted automatically where there is no opposition to it.
So, let us get it clear, the right to bail (by virtue of its non-absoluteness) can be limited by law if there is a compelling reason, but it is open to all generally. At this point, I would hope that you the reader, have a bit more clarity on what the position in Kenya is as regards bail.
David Omondi is a 3rd Year Student at SLS. He works at the Strathmore Law Clinic in the Criminal Justice unit.
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