In the recent past, there has been discussion on both print and social media platforms on the issue of the right to bail.
Article 49(1)(h) of the Constitution, where the right to bail flows from provides; “(1) An arrested person has the right— (h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”
Based on Article 49(1)(h), all arrested person produced before courts of law are entitled to seek their release on bond or bail, pending charge or trial.
The reason why the provision on bail is provided for under the constitution is mainly because of the presumption of innocence as provided under Article 50(2)(a).
The rationale in granting bail is that instead of keeping a suspect/accused under the harsh conditions of remand who might in the end be found innocent, he should not be incarcerated if the court is satisfied that he will turn up to answer charges.
The freedom of an accused person during criminal process is regarded as desirable because of the value society places on individual freedom, especially where the trial takes a considerable long time and considering the constitution guarantee of presumption of innocence.
It is important to note that in the previous constitution, right to bail was previously restricted and was not available to offences attracting maximum sentence of death. Unlike in like in the past when an accused person had to demonstrate why he should be released on bail/bond, that duty belongs to the state to prove existence of compellable reasons.
The court ought to have been more cautious while exercising its discretion in grant bail in serious offences such as terrorism and corruption.
Justice Fred A. Ochieng (as he then was) in Republic v Ahmed Mohammed Omar & 6 Ors (2010) eKLR, “ … the right to bail pending trial is not absolute … However, having taken into account the gravity of the offence, with which the accused has been charged; … could be sentenced to death, … real possibility of the applicant being tempted to abscond from jurisdiction."
The courts must take a strict approach in dealing with matters that affect national security especially terrorism and corruption. Terrorism acts have resulted to deaths of very many people, and this is akin to mass murder. The court’s must be alive to national security concerns when handling bail applications.
There are three types of bail: anticipatory bail, bail pending trial and bail pending appeal.
Article 258(1) of the Constitution provides for the right to institute court proceedings claiming that the constitution has been contravened or is threatened with contravention.
Based on the above Article of the Constitution and 165(3)(b), the High Court has jurisdiction to grant bail before arrest. Grant of anticipatory bail is mainly based on the likelihood of being arrested and the rights of a person are at risk of being infringed.
Some of the important factors to be considered is availability of a suspect before an investigative agency and the presence of the person within jurisdiction of court.
As already pointed out above, pre-trial bail is premised on the constitutional guarantee on presumption of innocence. Principles governing bail pending appeal are different from grant of pre-trial bail. At this stage, the convict does not enjoy the presumption of innocence. Bail pending appeal should only be granted in exceptional circumstances.
In Francis Ngobu Murathe v Republic (2013) eKLR, Justice Ngaah Jairus held that; “... the most important consideration is whether the appeal has overwhelming chances of success and should it be deemed, there would be no justification for depriving the applicant freedom ...”
The applicant for bail pending must therefore prove basis based on the record of proceedings to the presiding judicial officer on why his or her appeal has a high chance of success.
It is important to consider whether the conviction of the convict was because of (own) plea of guilt.
Based on section 348 of the Criminal Procedure Code, in addition to the grounds applied in bail pending appeal, the convict must clearly bring out the circumstances regarding his plea in the trial court or prove to court that the sentence was not legal.
The law on bail has two conflicting demands, fundamental rights of an individual and the greater public interest. There should be peace and safety of the public and their property. The courts of law and all organs of government have a duty to ensure that national and international security is preserved.
The rights of the society must be balanced with the rights of the accused person. Blanket grant of bail in terrorism and corruption cases might be seen to be encouraging terrorism and corruption related incidences and the judicial officers must be alive to this important fact.
