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1. Introduction

1.1 Article 49(1)(h) of the Constitution of Kenya gives an arrested person the right “to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.” Further, Article 49(2) of the Constitution provides that “A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.”

1.2 At the same time, the Criminal Procedure Code (CPC) empowers an officer in charge of a police station or a court to admit a person accused of an offence – other than murder, treason, robbery with violence, attempted robbery with violence and any related offence – to bail or release on executing a bond with sureties for his or her appearance.1 Alternatively, such a police officer or court may, instead of taking bail from the accused person, release him or her upon executing a bond without sureties. Further, the CPC provides that “The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.” It also gives the High Court the power to “direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced. Finally, it provides that “Before a person is released on bail or on his own recognizance, a bond for
such sum as the court or police officer thinks sufficient shall be executed by that person, and by one or more sufficient sureties.”

1.3 A number of other laws also contain provisions that deal with bail. These laws are the Children Act, the Prevention of Terrorism Act and the National Police Service Act. The Children Act empowers courts to grant bail to child offenders pending their appearance before a Children’s court. The Prevention of Terrorism Act 2012 provides that the rights of an arrested person specified under Article 49(1)(f) of the Constitution may be limited in order to ensure the protection of the suspect or any witness, to ensure that suspect avails himself for examination or trial or does not interfere with the investigations, to prevent the commission of an offence under this Act, or to ensure the preservation of national security.

1.4 The National Police Service Act gives a police officer investigating an alleged offence, save for an offence against discipline, broad discretionary power to “require any person to execute a bond in such sum and in such form as may be required,” on condition that the person shall duly attend court if and when required to do so. However, this power is to be “exercised in strict accordance with the Criminal Procedure Code.” A person who refuses or fails to comply with the bond requirements commits an offence.

1.5 These foregoing provisions of the Constitution and statutory laws seek to regulate administration of the right to bail and pretrial detention, that is the confinement of accused persons in facilities such as police cells or prisons, pending the investigation, hearing, determination or appeal of their cases. Administering these laws entails balancing the rights of suspects and accused persons to liberty and to be presumed innocent with the public interest.

1.6 Attaining this much-needed balance has proved elusive for much of Kenya’s history, and complaints abound concerning disparities in the administration of bail and bond. For example, research shows that “there has been little consistency and standards in the application of bail by concerned agencies.” As a result, “there is great public concern that bail (sic) granted across the country lack clear criteria, are exorbitant, unjustifiable and unaffordable by the majority of accused persons who are vulnerable and poor.”

1.7 Conversely, in the face of increasing and deadly terror attacks and new crimes such as drug trafficking and piracy, the Government and the public have expressed concern that persons accused of committing such serious crimes are absconding after being granted bail, thereby undermining the administration of criminal justice.

1.8 Additionally, for the first time in Kenya’s history, the Constitution now recognizes and seeks to protect the rights of victims of crime. Article 50(9) requires Parliament to “enact legislation providing for the protection, rights and welfare of victims of offences.” Parliament has now enacted this legislation, in the form of the Victim Protection Act 2014. This Act seeks to recognize and give effect to the rights of victims of crime. Second, this Act seeks to protect the dignity of victims of crime through, among other things, the provision of better information. Third, it seeks to promote cooperation among government departments, organizations and agencies involved in working with victims of crime. In particular, this Act implicates bail decisionmaking in two significant respects:

(a) It imposes a duty on the courts to “ensure that every victim is, as far as possible, given an opportunity to be heard and to respond before any decision affecting him or her is taken”: and

(b) It gives victims of crime the right “to have their safety and that of their family considered in determining the conditions of bail and release of the offender.”

1.9 For the foregoing reasons, there is a need to establish policy principles that will guide the police and judicial officers as they exercise their powers to grant or deny bond and bail, so that they can ensure that the rights of suspects and accused persons to liberty and to be presumed innocent are balanced with the public interest, including protecting the rights of victims of crime.

1.10 Equally, it is important to appreciate that the exercise of the powers of the police and judicial officers to grant or deny bail and bond impacts on other criminal justice institutions, particularly the prisons. In this respect, it should be noted that pretrial detainees make up almost half of the prison population. A need therefore arises for effective cooperation and coordination among the criminal justice institutions if the problem of overcrowding in prisons is to be resolved.

1.11 It is in this context that the Chief Justice appointed the Task Force on Bail and Bond to formulate these Bail and Bond Policy Guidelines. The Taskforce, under the direct supervision of the Deputy Chief Justice, was placed under the umbrella of the National Council on the Administration of Justice (NCAJ ). The Judicial Service Act establishes the NCAJ , and gives it the primary function of “Ensur[ing] a coordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system.”In particular, this law requires the NCAJ to “formulate policies relating to the administration of justice.