In Kenya, bail is enshrined in the constitution as a safeguard for arrested persons, a right meant to preserve human dignity and ensure that those facing charges can prepare for trial without the burden of unnecessary detention. In practice, however, bail often serves as punishment.
Exorbitant cash terms, arbitrary judicial decisions, and prolonged pretrial detention have turned what was meant to be a protection into a barrier to justice.
“My name is Generali. I am a human rights activist, a community organiser with Kongamabo la Mapinduzi, and a member of the Pan-African movement Africans Rising. I began my journey in human rights work in 2010, and I remain committed to this struggle.”
With these words, Generali introduces himself before recounting an ordeal that exposes deep flaws in Kenya’s bail and pretrial detention system.
He recalls how he and two colleagues were preparing to travel to Mombasa to organise work for their community when their bus was stopped.
“Hooded men stormed in, pointed at me, grabbed my phone, and handcuffed me and my two comrades,” he says.
“Outside, we saw about 50 police officers and several Subaru cars. When we asked what the charges were, they refused to tell us. They only said it was a ‘legal arrest’ and they were taking us to the police station. We didn’t know which one. We were driven in separate cars but ended up at Muthaiga Police Station.”
At the station, they were still not told the charges. Requests to call their lawyers were denied, and they were locked up overnight.
“The next day, we had to manoeuvre around other detainees just to find a way to communicate and inform our comrades and lawyers that we had been arrested,” Generali recalls. “Even then, the Directorate of Criminal Investigations (DCI) pressured us to write statements without our lawyers present. We refused.”
It was only later that the activists learned they were accused of arson and masterminding chaos during the Nairobi protests. They were further charged with financing “goons” who looted shops and set fires.
When brought to court, however, the charges were not confirmed. Instead, the DCI requested that they be detained for 21 more days.
The lawyers objected, but the magistrate adjourned the case, forcing them to spend two more nights in custody. When bail was finally set, it was 200,000 shillings each. Only with the intervention of the Defenders Coalition, a human rights organisation that protects and supports defenders, were they able to raise the money.
Generali emphasises that his case was not unique. “What about the many young people arrested for peacefully demonstrating? Some are now facing terrorism charges at Kahawa Law Courts. These charges give courts cover to impose higher bail terms. It defeats the very essence of bail.”
Eventually, Generali and his colleagues were cleared of all charges at Kibera Law Courts. Yet more than a month later, their phones and a camera remained in police custody, despite a court order for their return.
According to Gloria Madegwa, lawyer and head of programs at the Defenders Coalition, misuse of bail and pretrial detention has become systemic. In the past, human rights defenders were most often charged with offences such as illegal assembly or unlawful protest.
“But we are now seeing a new trend,” she explains. “Activists are increasingly charged with terrorism or even robbery with violence. These charges are deliberately punitive, designed to justify high bail terms and prolonged detention.”
The nature of the charges, Gloria explains, directly shapes treatment in court. “When you charge me with illegal assembly and when you charge me with terrorism, those two things cannot be put on the same pedestal. Yet courts often fail to distinguish the context, that one is a peaceful civic action, while the other carries grave implications of violence. The result is a dangerous conflation that treats human rights defenders as criminals.”
This problem is compounded by the judiciary’s failure to apply the Bail and Bond policy developed under former Chief Justice Willy Mutunga.
“It was a very progressive document, designed to guide magistrates and judges in setting fair bail conditions,” Gloria reveals. “But unfortunately, it is not being properly used. Instead, courts impose terms so high that they defeat the very purpose of bail.”
She goes further, pointing to deeper structural flaws in Kenya’s laws. “It is high time that our Penal Code and our laws, especially the Prevention of Terrorism Act, are rethought. These laws are honestly being misused.
They are not being used for the reason they were developed, but instead weaponised against activists and defenders.” With such laws in place, pretrial detention becomes a tool of intimidation rather than justice.
“During the recent protests, the lowest
bail for peaceful protesters was Sh50,000. Yet some young people do not
even make Sh1,000 a month. How do you expect them to raise that amount,
and you are charging them simply because they went to the street to agitate for
their rights? In effect, high bail turns into a sentence before trial.”
From a constitutional perspective, the right to bail is not in question. Article 49 provides 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.”
For Veronica Mwangi, Deputy Director at the
Kenya National Commission on Human Rights (KNCHR), this provision is at the
heart of Kenya’s justice system. “It ensures that, within the principles of
natural justice, the accused person is allowed to attend trial or
prepare for trial while outside the detention facility. It reflects the
principle of presumption of innocence,” Veronica explains.
The Constitution even prohibits remand for minor offences. Where the offence committed is punishable only by a fine or imprisonment of less than six months, then automatically, the person ought not to be remanded.
But the problems extend beyond excessive bail amounts. Many Kenyans are unaware of their rights or the distinction between bail and bond. Veronica explains: “Cash bail is where you are required to deposit a certain amount of money with the court, while bond is an undertaking to the court, sometimes supported by property or sureties. Both are designed to guarantee appearance in court, but they work differently.”
Too often, accused persons do not know they can contest bail terms immediately. “Young men, especially, end up going to remand simply because they are unaware of their rights. They only later learn from other inmates or civil society partners what options they had,” she says.
This gap in legal awareness, combined with the absence of legal representation, feeds unnecessary detention and worsens prison overcrowding.
Mass arrests add another layer of injustice. Courts often issue blanket bail terms without accounting for individual circumstances when large groups are arraigned under a single file, as during the recent protests and arrests. “This means students or unemployed youth are expected to pay the same as adults with stable income. Vulnerabilities are ignored, and Article 49 rights are violated,” Veronica explains.
The police also play a significant role in perpetuating abuse. Gloria points to cases where officers demand overnight police bonds of Sh20,000, deny access to lawyers, or fail to issue charge sheets, all in direct violation of constitutional protections. “Some police officers understand the role of activists, but many stations refuse to let them engage with lawyers.
Alternatives to Detention
Despite these challenges, both Gloria and Veronica stress that alternatives to detention exist. Kenya’s legal system already provides for diversion, particularly for children and young adults, plea bargaining, and community-based mechanisms under Alternative Justice Systems (AJS).
Courts can also issue Community Service Orders (CSOs) for minor offences, sparing accused persons unnecessary custodial sentences.
“We have seen courts ask, instead of giving you 100,000 bail, can someone stand surety for you? That has actually worked,” explains Gloria. Yet the challenge is not the absence of alternatives, but their underutilisation. Pretrial detention should remain the exception, not the rule.
At its core, Article 49 of the Constitution envisions fairness; every arrested person is presumed innocent, has the right to bail on reasonable terms, and should not be detained unnecessarily. Yet, as Generali’s experience shows, the gap between law and lived reality remains wide.
Until courts, police, and policymakers align practice with principle, pretrial detention will continue to punish poverty and silence dissent.
For Generali, the issue is personal. “Bail has become punitive. It is supposed to ensure we return to court, not to keep us locked away for not being able to afford it,” he says.
This report was produced as part of the
Liberalist Centre’s Journalism for Liberty Fellowship program with funding
support from Atlas Network and the Institute of Economic Affairs (IEA).
