4. Bail and Bond Decision-Making
Bail and Bond in the Police Station
4.1 At the Police Station, a suspect may be released on cash bail, with or without sureties, or personal (free) bond or recognizance. The Police Force Standing Orders require the officer in charge of a police station to release any person arrested on a minor charge on the security of cash bail, as a general rule, unless the officer has good grounds for believing that the arrested person will not attend court when required to do so. This cash bail should be handed into court by the date on which the arrested person should appear in court, and a receipt obtained. In case a person who has been released on bail fails to appear in court, the officer in charge of the police station should apply to the magistrate for a warrant of arrest. At this point, the magistrate may either order the cash bail to be forfeited (if it is demonstrated that there are sufficient grounds that justify an order for forfeiture), or retained on court deposit until
such time as the accused person appears. It should be noted that the Police Standing Orders are categorical that a person who is released from custody on either bail or bond can only be required to appear before a magistrate on a specified date, and that “Under no circumstances will a prisoner who is released on bond be required to appear at a police station or other place.” Where the accused person violates bail or bond terms, the police should cancel the bail or bond, re-arrest him or her, bring him or her to the police station, and take him or her to court.
4.2 In practice, police decision-making on bail and bond can be unpredictable:
(a) First, police officers sometimes do not give bail and bond on reasonable terms. In some cases, police officers deny accused persons bail as a form of punishment. Further, police officers do not usually explain their bail and bond decisions.
(b) Second, police officers only grant bail and bond to persons accused of minor offences, and leave bail decision making in serious offences to the courts. In the latter case, the accused person should be produced in court within 24 hours of arrest. Accordingly, a person accused of serious offences such as murder or robbery with violence is likely to be detained in a police cell, and can only be released on bail once produced before court.
(c) Third, police officers tend to detain persons who have committed petty offences, contrary to Article 49(2) of the Constitution. Included in this category are persons accused of committing offences such as loitering, creating a disturbance, being drunk and disorderly, and possessing illicit liquor. Even more disturbing, some police officers have detained persons accused of committing offences that are not known to law, contrary to section 50(n) of the Constitution, which gives an accused person the right not to be convicted for an act or omission that was not an offence under the law at the time of the commission or omission. A typical example is
the offence of “city planning” in respect of which several persons have been arrested and detained at the Kamukunji Police Station in Nairobi.
(d) Fourth, many accused persons are unable to afford cash bail in amounts as low as Kshs. 1000 due to poverty. Such persons are therefore detained in police custody.
(e) Fifth, police officers typically do not inform accused persons that they have a right to be released on bail and in some cases even extort bribes from them.
(f) Sixth, because the public does not understand bail, it sometimes sees the payment of cash bail as a bribe or payment of a fine, and consequently perceives police officers as corrupt and at the same time lynches accused persons released on bail. Indeed, police officers often detain some accused persons for their own protection, on the basis that they might be lynched if released on bail.
4.3 The administration of bail and bond in traffic offences presents special challenges. Decision making here seems arbitrary, and the amount of bail is left to the discretion of the Divisional Traffic Officer. Further, while the police are concerned that there is a high rate of absconding (that is, failing to attend court after paying cash bail), the public find the process of complying with the requirement to attend court unduly punitive, particularly where the offences are committed in locations where they do not reside. This is the case, for example, where an offender is caught over-speeding in Naivasha on a Sunday whilst heading to Kisumu where he or she resides. Typically, the police would require such a person to appear before a Naivasha court the following day. Court case backlogs and lengthy trial procedures have also given police officers and traffic offenders an incentive to solicit and pay bribes respectively. In such instances, police officers withdraw the charges upon the offenders giving them the amount, or part, of the cash bail.
4.4 From the foregoing, a need arises to regulate police decision-making with respect to bail and bond. Police Officers should therefore take into account the General Principles stipulated in Part 3 above whenever they make decisions on bail and bond. In particular:
(a) Police officers shall inform suspects of the reasons for their arrest, and the offence or offences for which they have been arrested.
(b) Police officers shall inform suspects that they have a right to be released on bail on reasonable terms. Further, police officers shall inform arrested persons that they have a right to be issued with an official receipt upon paying cash bail.
(c) In granting bail or bond, a police officer may attach such conditions to bail or bond as will be necessary to prevent the suspect from failing to surrender to custody, committing an offence while on bail, interfering with witnesses, or otherwise obstructing the course of justice.
(d) In determining the amount of cash bail, police officers should ensure that the amount is such that it will secure the attendance of the suspect to his or her trial.
(e) Cash bail shall be reasonable.
(f) Police officers shall take into account the circumstances in which the crime in question was committed, the safety and security of any victims, and the circumstances of the accused person, in determining whether or not to grant bail. For example, offences that are committed while an accused person is in transit – such as traffic offences – may require police officers to grant cash bail, since it may be difficult to trace the suspect should he or she fail to attend trial.
(g) A police officer may place a suspect in protective custody where such a measure is necessary to protect the suspect, for example, where it is demonstrated that the community may harm the suspect if he or she is released from police custody.
(h) Where a suspect has committed a petty offence, and the police officer determines that he or she is not a flight risk, the police officer should give the suspect a free bond. That is, the police officer should release the accused person on his own recognizance, or with a surety.
(i) Police officers shall inform suspects of the reasons for the denial of bail or bond, and the conditions attached to bail or bond in cases where they have decided to grant bail or bond.
(j) Police officers should release suspects who are children or vulnerable persons on a recognizance being entered into by his or her parent or guardian or other responsible person, with or without sureties, for such amounts as will, in the opinion of the officer, secure the attendance of the child or vulnerable person. In the case of suspects who are children,
police officers shall consider the best interests of the child in making these decisions.
(k) In minor traffic cases, police officers may issue a notice to attend court on a day not more than fourteen days from the date of the alleged offence.
(l) Police officers should establish a system for accounting for all arrested persons. In this regard, each police station should have an electronic register linked to a central data center.
(m) Victims of crime are entitled to be informed of developments in their case, including the decision to grant a suspect bail or bond, and any conditions attached thereto.
(n) Police officers shall inform victims of any decision to put suspects in custody, and the date on which he or she will appear in court. Further, police officers shall advise victims to report any alleged violations of the bail or bond terms.
(o) Once the accused person has appeared in court, or the case file has been sent to the Office of the Director of Public Prosecution (ODPP), it shall be the responsibility of the ODPP to keep victims informed of developments in their case, including court decisions granting an accused person bail or bond, and any conditions attached thereto.
(p) Any person who alleges that a police officer has violated any of the foregoing requirements of this Policy may report the matter to the Independent Policing Oversight Authority (IPOA ) whose function is to “hold the police accountable to the public in the performance of their functions.”
Bail and Bond in the Courts
4.5 The courts have powers under the Constitution and the CPC to admit an accused person to bail or to release him or her upon executing a bond with sureties for his or her appearance. The exercise of these powers entails the performance of the following judicial and administrative functions:
- Determining whether or not an accused person should be granted bail;
- Determining the amount of bail;
- Attaching suitable conditions to the grant of bail;
- Verifying security documents;
- Approving sureties;
- Releasing accused persons who have been granted bail from police custody or prisons;
- Committing accused persons who have been denied bail to police custody or prisons; and
- Reviewing bail terms and conditions.
4.6 The performance of the foregoing judicial and administrative functions has been characterized by numerous challenges.
4.7 First, there is no uniformity in how the courts determine whether or not to grant accused persons bail, both in terms of procedure and substance. As a result, it is difficult for accused persons to predict how their bail applications will be determined.
4.8 At present, there is no procedure for applying for bail. In many magistrates’ courts, the practice is that an accused person who seeks to be released on bail pending trial will raise his or her hand when arraigned in court and request the presiding judicial officer for bail. Alternatively, the magistrate grants bail to the accused person without any such application, and therefore without establishing from the accused person whether or not the bail terms are affordable. Any accused person who complains about the bail terms is simply told to seek a review from the court that is to conduct the hearing. Although some magistrates’ courts inquire from accused persons whether they can afford bail, they find this approach to be time consuming due to their heavy workloads. Conversely, an accused person who seeks to be released on bail in the High Court is required to make a formal application, failure to which the application will often not be considered.
4.9 In terms of substance, the primary factor considered by the courts in bail decision-making is whether the accused person will appear for trial if granted bail. A particular challenge the courts face since the promulgation of the Constitution of 2010 is determining the existence of compelling reasons for denying an accused person bail, particularly in serious offences. According to the decisions of the courts, the determination of whether there are compelling reasons that can justify the denial of bail should be made by evaluating whether or not the accused person will attend his or her trial. In practice, the courts have made this evaluation by considering the following non-exhaustive factors:
(a) The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty. Where the charge against the accused person is serious, and the punishment heavy, the courts assume that there are more probabilities and incentives for the accused person to abscond, whereas in case of minor offences there may be no such incentives.
(b) The strength of the prosecution case. An accused person should not be subjected to pretrial detention where the evidence against him or her is tenuous, even if the charge is serious. Conversely, it may be justifiable to subject an accused person to pretrial detention where the evidence against the accused person is strong. For example, where all the prosecution witnesses have testified, and the accused person is aware of the weight of the prosecution’s case against him or her, it is presumed that such a person has an incentive to abscond and should therefore be denied bail.
(c) Character and antecedents of the accused person. Although the character and antecedents of the accused person do not by themselves form the basis for denial of bail or bond, they may justify the refusal of bail or bond if they are coupled with other adverse factors.
(d) The failure of the accused person to observe bail or bond terms on previous occasions is a good ground for denying bail or bond.
(e) Likelihood of interfering with witnesses. Where there is a likelihood that the accused will interfere with prosecution witnesses if released on bail or bond, he or she may be denied bail or bond. However, bail or bond will only be denied if (i) there is strong evidence of the likelihood of interfering with prosecution witnesses, which is not rebutted, and (ii) the court cannot impose conditions to the bail or bond to prevent such interference. For example, where the accused person has been provided with witness statements, and therefore knows the identities of the prosecution witnesses and the nature of the evidence that these witnesses will adduce at trial, there is a real likelihood that the accused person may contact the witnesses. The likelihood that such an accused person may contact witnesses “could probably inflict genuine fear and anxiety in the potential prosecution witnesses,” and therefore constitutes a compelling reason for the denial of bail. In this regard, defilement cases present a special challenge. The country is not only experiencing an upsurge in defilement cases, but many such cases are compromised as soon as accused persons are released on bail. This happens because the families of the accused person and the victim usually negotiate to settle the cases out of court. Some courts are dealing with this challenge by denying accused persons bail until witnesses, especially the victim, have testified in such cases. The courts have adopted the same approach in murder cases, particularly where the witnesses are closely related to the accused person.
(f) The need to protect the victim or victims of the crime from the accused person.
(g) The relationship between the accused person and potential witnesses. Here, the courts reason that if the accused person is either related to the witnesses or stands in a position of influence vis-à-vis the potential witnesses, there could arise a legitimate anxiety about the impact the accused person might have on the witnesses, if he or she is released pending trial.38 However, this factor does not inexorably dictate that the accused person should be denied bail. Instead, it may simply require the police or the court to attach suitable bond or bail conditions to ensure that the relationship between the accused person and potential witnesses does not undermine the interests of justice.
(h) Child offenders. Where the accused person is a minor, the denial of bail or bond is considered not to be in the best interests of the accused person, who is a minor.
(i) The accused person is a flight risk. Where the accused person is a foreigner who does not have a fixed abode or hosts in the country and Kenya does not have an extradition treaty with the accused person’s country, there is a presumption that he or she is a flight risk and may therefore fail to attend trial if granted bail or bond. The rationale for this presumption is that it would be impossible to prevail upon such a country to return its national to Kenya to be prosecuted should they abscond after being granted bond or bail.
(j) Whether accused person is gainfully employed. The courts also consider the fact that an accused person is gainfully employed to enhance the likelihood that he or she will attend trial. However, it should not matter whether or not the accused person is a casual laborer or is engaged in permanent and pensionable employment. Accordingly, the fact that the accused person is a casual laborer should not, in itself, constitute the basis upon which the court determines whether or not to grant bail.
(k) Public order, peace or security. Whether the release of an accused person will disturb public order or undermine public peace or security. Pretrial detention may be necessary to preserve public order where it is demonstrated that the public response to an offence is such that the release of the accused person would be likely to lead to a public disturbance.
(l) Protection of the accused person. Whether pretrial detention is necessary to protect the accused person.
Although courts are supposed to be guided by these factors in their bail decision-making, they do not always explain their decisions. This leads, for
example, to situations in which one magistrate denies bail while another allows bail in similar circumstances. It is also important for the courts to recognize that due to personnel and resources constraints, accused persons often spend inordinately long periods in detention before their cases are concluded. In addition, courts have tended to deny accused persons bail on the ground only that they face grave charges, without considering other factors.
4.10 Courts face a number of challenges in making bail decisions. In the case of bail pending trial, the burden of proof lies on the prosecution to establish the
existence of compelling reasons that would justify the denial of bail, or the imposition of suitable bail terms and conditions. Some courts have required the prosecution to present “cogent, very strong and specific evidence” in order to justify the denial of bail. Mere allegations or suspicion will not be sufficient. According to these courts, where the prosecution opposes bail, it must support its objection with cogent reasons and facts, and it is not enough to “make bare objections and insinuations.”
4.11 However, what is the appropriate standard of proof? For example, where the prosecution alleges that an accused person will interfere with witnesses, should it prove this allegation on a balance of probabilities or beyond reasonable doubt in order to persuade the court? And what form of evidence should the prosecution present to persuade the courts of the existence of compelling reasons? Although some courts insist that the prosecution must produce an affidavit sworn by the investigating officer, others do not. But even where the prosecution has presented such affidavits, some courts have not been persuaded that they meet the compelling reasons threshold, much to the disappointment of investigating officers. Second, how can the court make a bail determination without compromising the accused person’s right to a fair and unbiased trial? Third, how can courts obtain the accurate, relevant, and verified information they require to make fair bail decisions? Unfortunately, the nature of our adversarial system is such that the information furnished to the court on behalf of bail applicants is not always reliable, while the prosecution may prefer that the accused person be detained pending trial for various reasons. Further, because courts do not have systems for
verifying such information, they may not always make fair and appropriate bail decisions. It may therefore be necessary for courts to seek independent information if they are to make fair and appropriate bail decisions.
4.12 Such bail information could, for example, be obtained from the Probation and Aftercare Service, which prepares bail reports at the request of the court. However, the integrity of such independent information cannot be taken for granted. In any case, the courts are not obliged to use bail reports, with the effect that while some courts use them, others do not. Nevertheless, because of severe resource and personnel constraints, it is doubtful whether the Probation and Aftercare Service would manage were the Judiciary to make bail reports mandatory in all cases. A potential drawback of the bail reports is that they may contain information that is prejudicial to the accused person (such as previous convictions), which may make it necessary for the courts to separate bail determinations from the trial. In addition, given the influential role that probation officers increasingly play in bail determinations, accused persons and their families may offer them bribes to influence their reports. Mechanisms should therefore be established to ensure the integrity of bail reports.
4.13 All in all, addressing the foregoing challenges may require courts to hold bail hearings. Some courts already hold proceedings akin to bail hearings. These courts require the prosecution to produce an affidavit sworn by the investigating officer, giving what it considers to be the compelling reasons why an accused person should be denied bail, require the prosecution to serve the accused person or his or her lawyer with the affidavit, give the accused person or his or her lawyer an opportunity to respond to the affidavit, call for a bail report, and make a bail decision on the basis of the information obtained from this process.
4.14 Courts also face a challenge in enforcing the requirement of the Constitution that an arrested person should be brought before a court of law as soon as reasonably practicable, but not later than twenty-four hours after being arrested. In this respect, it is important to appreciate that the police often work under difficult circumstances. As one court has observed, “In a country where the police/citizen ratio is so low, where investigative facilities… are wanting, yet crime rate is on the increase, the police have to exert themselves to the full to beat the constitutional time limit of arraigning accused persons in a court of law and occasionally there may be some delay.” Accordingly, where the police have not completed their investigations before the expiry of the twenty-four hour rule, the emerging practice is that the courts will, upon request, allow the police to continue holding the accused person pending the completion of investigations, provided the police give a “genuine and sufficient explanation.” However, the duration of such extended detention is not rationalized and is left entirely to the discretion of the court. And so
some courts grant the police only two or three days, while others grant them up to fourteen days. Where the police fail to comply with these timelines, the courts release the accused persons.
4.15 It should be noted that the Prevention of Terrorism Act 2012 (POTA ) stipulates different timelines for terrorism cases. In the first instance, POTA provides
that a police officer who has detained a suspect may apply in writing to the court to extend the time for holding the suspect in custody for a period of up to thirty days. Before this this period expires, the police officer may again apply to the court to extend the period of detention. However, POTA stipulates that the court can only extend the time for remand “for such a period as shall not, together with the period for which the suspect was first remanded in custody, exceed ninety days.”
4.16 Second, bail amounts are sometimes unreasonable, or unaffordable for the majority of accused persons. It is not clear how courts determine the amount of bail – for example, whether they consider any factors, and what those factors are. Among other things, this lack of clarity makes it difficult for advocates to advise clients on how much money they should prepare for cash bail. Disparities in the exercise of judicial discretion have also led to the imposition of bail amounts that are either unreasonably high or unreasonably low in comparison to the offence committed. For example, it is not unusual that a person accused of obtaining Ksh. 8,000 will be required to pay a cash bail of Ksh. 50,000. In addition, where two or more persons are accused of the same offence, the courts tend to set uniform bail terms
for all of them, without distinguishing their circumstances.54 Further, there is no uniformity in how courts approach bail. In Nairobi, for example, accused persons prefer to be arraigned before the Makadara courts, which, in contrast to the Milimani courts, are perceived to be more lenient in granting bail. To enhance uniformity in bail decision-making, some courts have tried to standardize their approaches. In Kitale, for example, the courts have a policy of giving cash bail of at least Ksh. 300,000 in defilement cases and Ksh. 500,000 in robbery with violence cases.
4.17 Courts sometimes impose stringent bail terms for simple traffic offences, such as Ksh. 30,000 for causing obstruction. There is a strong perception that courts have adopted a punitive policy in traffic offences, whereby accused persons are encouraged to plead guilty and those who plead not guilty are subjected to punitive bail terms.
4.18 Third, it is sometimes unpredictable whether or not courts will attach conditions to the grant of bail, and what those conditions will be. Bail conditions do not appear to be rationalized. It is not clear, for example, when the courts will require a bond with surety or sureties, or a personal bond. Courts do not usually justify the requirement of multiple sureties as opposed to only one. Indeed, many accused persons find it difficult to produce two or more sureties, and take the view that a single surety should suffice. Section 124 of the CPC leaves these important determinations to the discretion of the court. Under this provision, the court may impose any bond terms that it deems sufficient. The only explanation the courts have given here is that they ordinarily refrain from granting accused persons free bonds due to high rates of absconding in such cases. Again, there are claims that courts impose onerous bond terms even for petty offences. Another limitation is that the
courts do not permit accused persons to rely on their own property to secure their freedom.
4.19 Fourth, there are no uniform procedures for processing and releasing accused persons who have posted bail. The process of posting bail, including approving sureties, is sometimes characterized by administrative bottlenecks, which considerably delay the release from custody of accused persons who have been granted bail. Further, the process of approving sureties takes considerable amounts of time, and therefore consumes much of the courts’ scarce time.
4.20 Fifth, the requirement of property in surety bonds and the verification of security documents have presented considerable challenges. In this respect, section 126 of the CPC provides that “When a person may be required by a court or officer to execute a bond, with or without sureties, the court or officer may, except in the case of a bond for good behavior, require him to deposit a sum of money to such amount as the court or officer may fix, or to deposit property, in lieu of executing a bond.” Some courts have interpreted this provision to mean that a surety must produce either a title deed, or a motor vehicle logbook, or a pay slip. Accordingly, these courts have declined to accept other forms of security documents. A second challenge is that courts do not have the resources or capacity to verify the authenticity of security documents such as title deeds and motor vehicle logbooks. This has led to many courts holding onto worthless security documents. Many
courts have now entrusted the verification of such documents to investigating officers, although they have not established the time-lines within which such
verification is supposed to occur. But this procedure means that accused persons will stay in detention for considerable durations. A further challenge is that accused persons or their relatives sometimes compromise investigating officers to give them favorable verification reports. As a result, some courts now require these officers to produce sworn affidavits of verification in an effort to hold them accountable. Even where sureties present genuine security documents but accused persons abscond, courts face considerable challenges in realizing the securities since there are no clear procedures for this exercise.
4.21 Sixth, it is not always clear whether or not, and on what basis, courts will review bail terms and conditions. Although some magistrates’ courts
continually review their bail decisions as circumstances change, others do not and advise accused persons to seek redress from the High Court, which is empowered by the CPC to review the bail decisions of the police and magistrates courts. But even where the courts review their bail decisions, their reasoning is not always clear. Further, accused persons do not always have sufficient opportunities to request courts to review their bail decisions. For example, because of crowded court diaries, it is not uncommon for an accused person to appear before a judicial officer every three or four months. This is contrary to the proviso to Section 205(1) of the CPC, which clearly states that a court may adjourn the hearing of a case, “Provided that no such adjournment shall be for more than thirty clear days, or, if the accused person has been committed to prison, for more than fifteen clear days, the day following that on which the adjournment is made being counted as the
first day” (emphasis supplied).
4.22 Seventh, the power of the courts to bond suspects to keep the peace under the CPC is sometimes abused, leading to many individuals being needlessly
detained in police custody and prisons. According to section 43(1) of the CPC, where a person informs a magistrate that a person is likely to commit a breach of the peace or disturb public tranquility, or do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility, the magistrate can, after examining the informant on oath, require the person in respect of whom the information is laid to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the magistrate thinks fit. Further, section 46 of the CPC provides that where the magistrate is informed that a person is a habitual criminal, the magistrate may, among other things, require that person to show cause why he should not be ordered to execute a bond, with sureties, for his good behavior for such period, not exceeding three years, as the magistrate thinks fit. In either case, where the magistrate deems it necessary to require such a person to show cause, section 47 of the CPC requires the magistrate to make an order in writing setting out the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character, and class of securities, if any, required. Further, section 58 of the CPC provides that if a person ordered to give security fails to do so, he shall be committed to prison, although the High Court may review such orders but only where they exceed one year.
4.23 Courts do not always adhere to these procedures in practice, with the result that some individuals are detained unlawfully. Nevertheless, the major
problem with these procedures is that because many such persons are not able to afford the bond terms set by the court, they end up in prison, sometime for long periods, yet they have not been charged with committing any specific crime.
4.24 In many cases, the courts have not involved the victims of crime, or taken their interests into account, in their bail decision-making. This partly explains
why the public often sees bail as unconditional release of accused persons, and why it has resorted to lynching such persons in some cases.
4.25 Courts should hold bail hearings where the prosecution opposes a bail application or where the court deems it fit, proceed to inquire into the circumstances of the accused person even if there is no opposition from the prosecution.
4.26 The following procedures should apply to the bail hearing:
(a) The prosecution shall satisfy the court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:
a. That the accused person is likely to fail to attend court proceedings;
b. That the accused person is likely to commit, or abet the commission
of, a serious offence; or
c. That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; or
d. That the accused person is likely to endanger the safety of victims, individuals or the public; or
e. That the accused person is likely to interfere with witnesses or evidence; or
f. That the accused person is likely to endanger national security; or
g. That it is in the public interest to detain the accused person in custody.
(b) The accused person shall be entitled to the disclosure of any information relied upon by the prosecution in objecting to bail, provided that there is no good reason for withholding such information, such as the protection of witnesses or the preservation of national security.
(c) The court may request for a bail report where it considers that it does not have sufficient information to make a fair and appropriate bail decision, including the following instances:
a. Where there is doubt on the information on the accused person relating to the grant of bail; or
b. Where the prosecution objects to bail, with plausible reasons; or
c. Where the accused person has been granted bail but fails to meet bail terms and seeks review of those terms; or d. Where the victim of the crime contests the grant of bail or applies for review of bail conditions; or,
e. On the court’s own motion where it deems necessary.
(d) Officers of the Probation and Aftercare Service should prepare bail reports as soon as practicable but not later than two weeks from the time of request.
(e) Where the court has called for a bail report, it shall give the prosecution and the defense an equal opportunity to contest the findings of this report.
(f) The court shall give the victim or victims of the crime an opportunity to submit any information that, in their view, the court should consider in making its bail decision. Such information shall include information on the safety of victims and their families. The views and concerns of victims are particularly important in the case of offences against the person, such as sexual offences, murder and domestic violence. However, the views and concerns of the victim or victims shall be presented in a manner that is not prejudicial to the rights of the accused person.
(g) Before deciding whether to grant or deny the accused person bail, the court shall give the accused person an opportunity to rebut the claims of the prosecution and the victim or victims of the crime.
(h) In addition to the factors stipulated in Paragraph 4.9 above, the court should consider, as appropriate, the following additional factors in deciding whether to grant an accused person bail:
a. The period the accused person has already spent in custody since arrest.
b. The probable period of detention until the conclusion of the trial if the accused is not released on bail.
c. The reason or reasons for any delay in the conclusion of the trial and any role of the accused with regard to such delay.
d. Change of circumstances during the trial.
e. The maximum custodial sentence in case the accused person is convicted.
Provided that the courts should not deny an accused person bail if the gravity of the charge is the only consideration before it. In other words, the seriousness of the alleged crime is not sufficient, by itself and in the absence of any other relevant factor or factors, to justify the denial of bail.
4.27 The bail report shall only contain information that will assist the court to make a fair decision on whether or not to release the accused person on bail.
4.28 In making a bail decision in the case of accused persons who are children and other persons with special needs (such as persons with special mental health care needs, persons with disabilities and transgender prisoners), the court should consider alternatives to remand such as close supervision or placement with a fit person determined by the court. In such cases, courts should resort to detention only as a last resort, taking into account the nature and circumstances of the offence, and the risks that such persons pose to the public.
4.29 The High Court may grant anticipatory bail, that is, bail pending arrest, provided the applicant demonstrates that his or her right to liberty is likely to be compromised or breached unlawfully by an organ of the state that is supposed to protect this right. Further, the applicant must demonstrate that the apprehension of arrest is “real and not imagined or speculative.”
4.30 With respect to bail pending appeal, the burden of proof is on the convicted person to demonstrate that there is an “overwhelming probability” that his or her appeal will succeed.
4.31 The court may impose any bail conditions it deems fit, including the following:
(a) Reporting requirements (for example, requiring the accused person to report to a police station or court periodically);
(b) Contact restrictions (for example, requiring the accused person to refrain from contacting victims and/or witnesses or otherwise behaving in a manner that would distress them),
(c) Requiring the accused person to vacate his or her residence and reside elsewhere for the duration of the trial,
(d) Requiring the accused person to surrender travel documents such as passports,
(e) Requiring accused person to submit to home visits.
Provided that bail conditions should be reasonable, proportionate to the offence for which bail is granted, appropriate to the risks in relation to which they are imposed, and take into account the individual circumstances of the accused person.
4.32 In the case of transnational crimes – such as terrorism, drug trafficking and piracy – the court may impose the following conditions to the grant of bail:
(a) Requiring the accused, while on release, not to commit an offence, interfere with witnesses or the investigations in relation to the offence for which the suspect has been arrested;
(b) Requiring the accused person to avail himself or herself for the purpose of facilitating the conduct of investigations and the preparation of any report to be submitted to the court dealing with the matter in respect of which the suspect stands accused; or
(c) Requiring the accused person to appear at such a time and place as the court may specify for the purpose of conducting preliminary proceedings or the trial or for the purpose of assisting the police with their inquiries.
4.33 In order to enhance consistency and transparency in bail decision-making, courts have a duty to provide reasons for their decisions to deny bail, and also provide reasons where they have attached conditions to the grant of bail.
4.34 Courts have a duty to inform the victims of crime of their bail decisions, including the conditions attached to the grant of bail.
4.35 Where a court has granted an accused person bail, it shall issue the accused person with a written notice requiring him or her to appear before a court on a
specified day, time, and date, and indicating any conduct requirements it has imposed. The notice should also explain the consequences that may follow should the accused person fail to comply with any of the bail conditions. The accused person should sign this notice before he or she is released, as an acknowledgement that he or she understands the conditions of bail.
4.36 Courts shall inform accused persons of their rights to apply for review of bail decisions and conditions. Bail decisions and conditions should be reviewed
on a regular basis, as the circumstances of the accused person and the case change.
4.37 Where the police wish to continue detaining an accused person following his or her arraignment within twenty-four hours of arrest – for example, because
investigations are incomplete – and they are able to satisfy the court that there are reasonable grounds that necessitate continued detention, the court should issue an order for the continued detention of the accused person for a period not exceeding fourteen days. Provided that in issuing this order, the court should justify any such period of continued detention.
4.38 In terrorism cases, the court may, in the first instance and upon the written request of a police officer, extend the time for holding the suspect in custody for a period of up to thirty days. Before this period expires, the court may extend the period of detention, upon an application of the police officer.66
However, the court can only extend the time for remand for a period not exceeding ninety days, which shall include the period for which the suspect was first remanded in custody.
4.39 Courts should give reasonable bond terms to suspects whom they have committed to keep the peace. Such bond terms should facilitate the suspects to be released to keep the peace in their communities and not to be held in custody. Further, courts shall ensure strict adherence to the provisions of the CPC governing the bonding of suspects to keep the peace.
4.40 When considering the suitability of a proposed surety, the court should take the following factors into account:
(a) Financial resources;
(b) Character and any previous convictions;
(c) Relationship to the accused person;
(d) Any other relevant factor.
The proposed surety should attest to these factors. Further, the prosecutor should participate in this process of approving sureties.
4.41 Courts should ensure that sureties understand their obligations and the risks they assume when they undertake to serve as sureties. Once the court accepts
a person as a surety, it should explain his or her obligations, and require him or her to sign a notice of undertaking of bail, setting out the accused person’s
bail conditions and the consequences for the surety if the accused person breaches those conditions.
4.42 Where an accused person applies for a review of the conditions of bail, the surety should be informed of the application and the nature and likely consequences of the variation sought.
4.43 Courts may accept the following as security documents, among others: title deeds, motor vehicle log books, pay slips, bank drafts, insurance bonds.