Guidelines to promote pre-bail reports

By LILLIAN ALUANGA-DELVAUX [email protected]

The Probations and Aftercare Service Department is calling for policy guidelines to promote use of pre- bail reports by the courts. A pre-bail report is a social inquiry report written through information generated about the background and community ties of an accused person. The purpose of such a report is to provide as much verified information as possible to the court about the accused that will help make a rational decision on bail terms.

Such a report is used to assess the likelihood of an accused person appearing in court. Although the practice of providing courts with pre bail reports, upon request, was introduced in 2009, the system is still not regulated by law, which means courts use such reports at their discretion. The push for use of pre bail reports comes when courts are raising the red flag over an increase in the number of accused persons jumping bail.

According to a 2011 report titled Pre Trial Detention in Kenya; Balancing the Rights of Criminal Defendants and the Interests of Justice, majority of the public still doesn’t understand how the bail system works. Prof Migai Akech and Dr Sarah Kinyanju authored the report, based on research in 12 stations across the country, including Kakamega, Kisumu, Eldoret, Garissa, Machakos, Nakuru, Nyeri and Mombasa.

It also cites findings of a survey that shows what a significant number of the public think granting an accused person bail is ‘a great injustice’. Of those surveyed, 42 per cent did not know what bail was.

Marks conclusion

Among those that understood, 12 per cent thought it was money paid for an accused person to be released, five per cent believed it was money paid for a case to be withdrawn, while one per cent thought it was a bribe.

A magistrate in Nakuru exemplifies the dilemma courts sometimes face since the public views granting bail as collusion between the courts and police to free suspects. “How do you tell someone who witnessed a crime being committed that the accused person is (presumed to be) innocent?” he poses.

In Garissa, on the other hand, some of the accused persons confuse cash bail with fines, and assume that payment of cash bail marks the conclusion of a matter. Several factors are considered when preparing a pre bail report, including whether an accused person will appear in court. This may be linked to a person’s background and community ties, including any previous failures to appear in court or whether he has a fixed abode, and relatives that can trace him if he disappears. An accused person’s economic means, circumstances under which an offence was committed, including its seriousness and severity of probable penalty, the community’s attitude towards the offence, and whether possible release of an accused poses any danger to the community or victim, are also factored. Capital offences like murder and robbery with violence — that are punishable by death — however, present a unique challenge because such penalties are viewed as ‘incentives’ that can push one to abscond if granted bail.

On the other hand, ‘minor offences’ for which bail should ordinarily be granted, such as creating a disturbance, threatening violence and causing a breach of peace, could sometimes escalate, forcing a court to deny bail.

Consider a case in Nakuru where someone charged with causing a disturbance- a ‘minor offence’ — was denied bail. In this case the complainant was the parent of the accused who alleged the suspect had committed the offence repeatedly. The accused in this case was denied bail because he posed a danger to the community. In Embu, an accused person denied bail by the lower courts successfully appealed the decision at the High Court. He was shot dead two weeks later. In Places like Kisii, where land conflicts abound, an accused person facing an assault charge was granted bail by the magistrate’s court. The next time he appeared in court he was charged with murder, after he allegedly killed the person he had assaulted.

There are also instances where pre bail reports have recommended denial of bail. Examples are given of a 45-year-old man in Embu who had allegedly been repeatedly raping his 80-year-old mother, and another 60-year-old man nicknamed ‘eagle’, having earned the dubious reputation of defiling girls.

Potential drawback

In both cases probation officers proposed a denial of bail.

A potential drawback of pre bail reports, however, is that they can be prejudicial to the accused person, for instance where the community deems one ‘unreliable’. There are also other challenges occasioned by the increasingly influential role played by probation officers. This has seen some accused persons and their relatives offering bribes to influence contents of bail reports.

Besides budgetary constraints and shortage of personnel in the probations department, getting information on an accused person, especially in big cities and towns may be difficult. Questions have also been raised on a lack of uniformity in bail terms imposed for similar offences in different courts across the country. Some courts, for instance, are said to have imposed conditions on themselves, and will only accept certain documents as security.

This leaves the public at a loss when comparing practices in different stations across the country, making it difficult to know what to expect when one appears in court.

Such cases have elicited calls for standardisation of bail practices, with proposals to establish a schedule indicating amounts or ranges payable for certain offences, while factoring in unique circumstances in different parts of the country.