Kenyan Judiciary holding worthless bond documents

By Apollo Mboya

Bail or bond has its roots in the legal system of Anglo-Saxon times necessitated by medieval sheriffs’ desire to avoid costly and troublesome burden of personal responsibility for those in their charge.

Bail is an agreement between the accused or his sureties and the court that the accused will attend court when required and should the accused abscond, in addition to the Court issuing warrants of arrest, a certain sum of money or property fixed by the court will be forfeited to Court.

Fair trial

The right to bond or bail is based on the principle of presumption of innocence and is founded upon the need to protect the personal liberty of a person who has not yet been found guilty of any offence.

The presumption of innocence is the axis of all fundamental rights and it is captured in Article 50 (2) (a) of the Constitution of Kenya which states that every accused person has the right to a fair trial, which includes the right to be presumed innocent until the contrary is proved.

Equally, under Article 7 (1) (b) of the African Charter on Human and People’s Rights every person accused of a criminal offence is innocent until proved guilty or until he/she so pleads. The right to bail can be granted at various stages of trial, namely; Pre-trial bail, bail pending trial and bail pending appeal. Article 49 (1) (h) of the Constitution provides for the release on bond or bail, pending a charge or trial. 

This means it can be granted even before arraigning a suspect in court. Section 123 (1) of the Criminal Procedure Code also recognises that a person may be released on bail or bond while still in police custody and before being charged in court.

Further, sub-section 3 of the same section, empowers the High Court to grant bail or to reduce any bail granted by a subordinate court or a police officer. This can be done whether the accused has been committed to trial or not.

Section 23 of the Police Act also empowers a police officer investigating an alleged crime, to require any person to execute a bond in such sum and in such form as may be required, on the understanding that the suspect will attend court on a particular date and time as may be required.

 Bail is non-penal in character and neither the amount for bail nor the refusal of bail may be influenced by punitive notions.

Since the purpose for bail/bond is to ensure court attendance of the accused the court may refuse granting of it if there is likelihood of the accused absconding, or committing further offences or interfering with witnesses. Historically, bail/bonds have been given in terms of cash, land title deeds, share certificates and motor vehicle logbooks. However, the system has been faced with several challenges including the fact that not everyone has access to required security documents and authenticity of the said documents held by the Judiciary is questionable.

As a start, all the Judiciary registries should declare the list of the unclaimed bail/bond securities, verify their authenticity and if genuine surrender them to the Unclaimed Financial Assets Authority as required by the Unclaimed Financial Assets Act (No. 40 of 2011).

Urgent reforms

I can bet that the Judiciary will be shocked that they have been holding on to some fake and unrealisable security documents in the form of Land title deeds, share certificates and motor vehicle logbooks after either the accused has jumped bail or the criminal cases have been concluded and the culprits knowing very well they are not genuine, do not bother to claim the same.

I say so because even legal practitioners who are involved in land conveyancing or motor vehicle purchase have fallen prey to fake land title deeds or motor vehicle logbooks.  This calls for urgent reforms in our bail/bond system through the issuance of insurance bonds by the private sector. Insurance bonds is not a new phenomena and have been used in civil law jurisdiction as security for performance of certain court orders but the same is yet to find its way into our criminal law jurisdiction.

The risk of an accused absconding court should be passed on to the entity which is better suited to handle the same because bail/bond is a form of insurance to guarantee attendance of an accused to court.

In case the accused absconds, all the Judiciary can do is to issue warrant of arrest and pass the same to the police to apprehend the accused.

But the Judiciary has not been directing its mind to the authenticity of the security documents it has been holding nor does it have the capacity to realise them.

The participation of the insurance industry in this regard would not only ensure the government realised the securities if the accused absconds, but would, in the long run, assist in decongesting prison populations through an easy, affordable and accessible bail/bond system. 

 

The writer is Secretary/CEO

Law Society of Kenya.

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