Why every suspect deserves lenient bail and bond terms

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 a court before 24 hours. If the 24 hours end outside ordinary court hours, or on a day that is not an ordinary court day, these rights include being 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 the courts on the subject of right to bail have captured the attention of the public.

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

It is important to note that the bias of rights granted to accused persons by our courts in favour of persons charged with a crime is not a product of recent court decisions. It is rooted in traditions, in precedence, in 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 basis upon which Judicial Officers release suspects on lenient bail and bond terms, is deliberately weighed in favour of defendants. 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. This is why on a charge sheet it is not the complainant who initiates the case, but the Director of Public Prosecutions on behalf of the Government.

The Government is the single most powerful entity in any country. This is a contest between two unequal parties.

To reduce the possibilities of injustice, the law seeks to address this imbalance by protecting the weaker party hence the need for certain privileges like, right to fair trial, procedural safeguards and most of all, right to bail pending trial.

Releasing a suspect on bail helps make the contest fair by enabling one to retain his job if he was working and thus able to support a family, 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.

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. 

Jay Sikuku

The writer is an advocate of The High Court Of Kenya