Maraga calls for review of ‘skewed’ bail application process
By Miliam Murigi
Chief Justice David Maraga has said the country’s bail application process has largely been skewed against poor petty offenders but to favour the rich and the elite in the society.
The CJ was speaking during a status report meeting on the Lady Justice Jessie Lessit-led taskforce constituted in 2015 to harmonise the bail and bond application process.
Maraga called for a paradigm shift on the process, and lauded the recommendations in the report, which he said, would further strengthen accountability and transparency mechanisms within the criminal justice system.
“Kenya must move decisively in this direction for this guidelines will go a long way in harmonising bail and bond application since there has been complaints that different offence get different bail terms and that is unacceptable,” he said.
He said in the past there was an outcry of corruption allegations where one could go to one court for more or less same offence and is given different terms, adding that this was the reason the task force was constituted to make policy changes and appropriate recommendation on legislative and policy changes where necessary.
According to the report’s key finding, the bail and bond application is usually skewed against the poor with about 70 per cent accused of petty offence with the elite left to go scot-free.
“This was a serious indictment of the entire justice system as a right envisioned in the constitution 2010. The majority have had to stay for a long time in jail because they cannot afford the high bail terms,” the CJ said.
Maraga appreciated the committee for the initiative, adding that it would get people on bond as they await their trial.
He said due to the high unnecessary bond and bail terms, very few have the right documentation.
The Director of Public Prosecution Noordin Haji embraced the initiative, adding that it would bring uniformity in bond applications and that the tools would build public confidence in the criminal justice system.
“It’s my hope that while the prosecution has demonstrated compelling reasons, the court will exercise its discretion and in appropriate cases deny bail for the cases to be determined expeditiously,” said Haji.
He emphasised that court orders must be obeyed asking those aggrieved by court decisions to appeal legally without disobeying court orders.
The Bail and Bond Implementation Committee (BBIC) was appointed by the National Council on the Administration of Justice (NCAJ) as a multi-agency team with the mandate of overseeing the implementation of the Bail and Bond Policy Guidelines (BBPG) developed to guide the police, the courts and other agencies in the administration of bail.
The committee undertook several measures in line with their mandate including sensitising and training of stakeholders and the public on bail and bond issues, engaging relevant actors to streamline bail and bond processes.
Among other measures, the Committee led legislative interventions to ensure relevant agencies implemented recommendations made by the Taskforce that developed the guidelines on bail and bond as well as monitoring, evaluating and reporting on implementation of the policy guidelines. Integral in accomplishing its assignment was the contribution the Committee received from criminal justice agencies and key development partners.
The bond law
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”.