Criticism of judges over bail misplaced

The Bill of Rights as provided for under the Constitution has lately become a subject of national attention courtesy of the revitalised discharge of public duties by the enforcement agencies in the criminal justice system.

The rights of an arrested person are provided for under article 49 of the Constitution of Kenya 2010. Among other rights, it provides that arrested persons have a right to be brought before court within 24 hours.

If the 24 hours end outside ordinary court hours, or on a day that is not an ordinary court day, the suspects ought to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons and right to fair trial.

The decisions of courts on the subject of right to bail is what has perhaps captured the attention of the public.

Public focus has particularly been on the right of the accused persons to be released on bond and bail pending hearing of widely publicised criminal cases. Court decisions granting bail and bond to accused persons are met with reservations by the public.

Opinions critical of judicial officers who grant suspects bail fill newspapers and airwaves while praising those who detain suspects through granting exorbitant bail and bond terms.

It is important to note that the bias of rights granted to accused persons by our courts in favour of persons charged with crime is not a product of recent court decisions. It’s rooted in traditions, in precedence and laws which we inherited from Britain. The Common law, which is part of the laws of the land, placed greater emphasis and privileges to accused persons.

The Constitution, which is the basis upon which judicial officers release suspects on lenient bail and bond terms, is deliberately weighted in favour of defendants accused of crimes. Various laws passed by Parliament also grant accused persons many assurances that the court invokes in its decisions.

By definition, any crime a person is suspected to have committed is an offence against the State. That is why on a charge sheet, it’s not the complainant who initiates the case, but the Director of Public Prosecutions on behalf of the Government.

The Government by its definition is the single most powerful entity in any country. This is a contest between two unequal parties. In order to reduce the possibility of injustices, the law seeks to address this imbalance by protecting the weaker party, hence the need for some certain privileges like right to fair trial, procedural safeguards and most of all right to bail pending trial.

Releasing a suspect on bail helps to make the contest fair by enabling one to retain his/her job if he was working and thus be able to support their families, earn money to pay lawyers’ services, a chance to put affairs in order should he be ultimately be convicted. And an opportunity to investigate his case and cooperate more meaningfully with his advocates. The major goal as was stated by associate of US Supreme Court, Robert H Jackson on granting bail “is to enable a suspect to stay out of jail until a trial court has found them guilty.

It’s not a simple matter to drag someone to court. At the very least, it means that someone suspects you of having committed a crime. Implied in this is the certainty of losing a job, be suspended from a job. There is the additional risk of ruining your reputation.

This cannot be undone whether one is found guilty or not.

There is widespread agreement among lawyers and judicial officers that if an accused is unable to post bail, he or she is severely handicapped and consequently detained. It is, therefore, difficult to prepare a defence, locate witnesses, consult a lawyer in private, retain job and support family and is made to suffer the stigma of imprisonment before the court can decide whether he is guilty or not.

Without respecting the right of the accused, justice will not be done.

It is important that proper sensitisation be done to educate the public about the Bill of Rights.

If the public does not value rights of persons and know how they apply for the accused, there is no way they can be proper citizens.

The horrors and adverse effects of denying rights cannot be overstated. It is worrying when the individuals who are supposed to be protected by the Bill of Rights and most likely to be victims of an all-powerful government are at the forefront supporting denial of such rights.

The law and public opinion don’t always go together. Any obscuring of the boundaries between the law and public opinion should be cause for alarm.

The strength and practicability of democracy largely depends on the affirmation and protection of Bill of Rights—whatever pressures public opinion may impose on the body politic.

Mr Sikuku is an advocate of the High Court of Kenya