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Creating Efficiency in Kenya’s Bail and Bond Administration

Creating Efficiency in Kenya’s Bail and Bond Regime.  By Shikhutuli Namusyule

Although the Constitution together with other laws and instruments gives clear direction on how the justice sector should deal with arrested and accused persons with regard to bail and bond administration in the country, there has been a continuing but robust conversation on the subject.

Importantly, the dialogue, escalated especially by the Constitution 2010 and the coming into place of the Bail and Bond Policy Guidelines in 2015, revolves around whether there can be uniformity in the application of bail and bond terms to all arrested persons amid the varied circumstances of the arrested/accused persons. Even so, the debate has not shied away from discussing the application of bail and bond with regard to certain categories of arrested persons such the elderly, children, lactating mothers, persons with mental health care needs and physical disabilities as well as the transgender and the intersex, under pretrial circumstances in the justice sector. Similarly, the complexity and the rapidly evolving nature of crimes and the need to address the challenges faced by the entire sector with regard to application of bail and bond, is an ongoing debated in the country.

Consequently, this has caused the need to streamline bail and bond administration in the country as one of the critical measures the justice actors cannot avoid if they desire that the system, be efficient and effective.  So far, the decisions made by our courts and lessons learnt from other jurisdictions globally, with regard to administration of bail and bond, significantly continue to inform the debate.

Gradually, and with the Bail and Bond Implementation Committee (BBIC) monitoring, evaluating and overseeing the implementation of Policy Guidelines, reforms have been underway to rid the justice system of the bottlenecks that inadvertently slow down the wheels of justice and in the process infringe on the rights of arrested and/or accused persons, especially the poor. The reforms are intentioned to entrench an efficient and well-coordinated system that guarantees justice to all and at all levels. Targeting to reform bail and bond administration, and especially at the police and courts, is one of the most critical transformation measures to make the system effective and efficient. The ultimate objectives are to bring integrity to the process, facilitate fair and quick delivery of justice and decongest the pre-trial holding facilities.

Fundamentally, there has been an increasing need to restructure the justice processes by implementing legislative changes and adopting new ways of doing business including introducing the relevant technology, especially with regard to payment of cash bail. As a result, courts and police have been called upon to adopt a cashless pay system with regard to cash bails. Hence the popular mobile money transfer which has become the most effective and efficient way through which cash bail is paid. This has significantly helped address the integrity question.

Notably, the major reform journey started with the promulgation of the Constitution of Kenya 2010, which allowed for, among other critical issues, an expansive Bill of Rights. The Bill of Rights has emerged as an essential foundation upon which the framework for social, economic and cultural policies are anchored.

The Constitution recognizes the right to bail and bond to all arrested and accused persons regardless of the offence committed. It provides for the right of a suspect or an accused person to bail, regulates the administration of bail and bond and that of pretrial detention. This is evident in Article 49(1) (h), which 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, 49(2) 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.”

It is important to note that granting or denial of bail or bond is not intended to be punitive, but to balance the rights of the parties, the interest of justice and, ensure the safety of the accused person, witnesses and/ or the victim. Essentially, of consideration is whether the accused person will attend trial and honour court conditions if granted bail.  Bail is not a fine, but instead is meant to secure ones attendance to court and is refundable once the matter is concluded. However, a fine on the other hand, is a form of penalty that is given when a person has either admitted the charge or has been tried and convicted.

To help with effective implementation of the constitutional requirement with regard to bail and bond, the Bail and Bond Policy Guidelines were developed to provide a tool for use by justice actors in their administration of bail and bond. This tool has now even been revised and improved to effectively serve the justice sector.

The Guidelines emphasize the right of accused person to be presumed innocent, accused person’s right to liberty and accused’s obligation to attend trial, as key principles to guide bail and bond decision making by the courts, police and other actors in the justice system. Further, they underscore the right to reasonable bail and bond terms, consideration for the rights of victims as well as the balance of the rights of the accused persons and the interest of justice in bail and bond decision making.

Besides the Policy Guidelines, there are other important statues and laws that are in place that contain provisions that deal with the administration of bail. The Criminal Procedure Code (CPC), the Children’s Act, the Victim Protection Act, the Prevention of Terrorism Act and the National Police Service Act, constitute some of the laws and legislative instruments that have been put in place.

These laws and instruments are fundamental as far as progress and improvement of the justice sector towards addressing complaints concerning disparities in the administration of bail and bond, are concerned. They give backing to the Constitution and guide the various players on their roles and responsibilities in the bail and bond administration processes.

However, for Article 49(1) (h) and 49 (2) to be effective, it requires actors to adhere the Bill of Rights. Importantly, and even as we develop legislation on bail and bond to operationalize the Article,  implementation of this constitutional provision requires that actors work to balance the rights of suspects and/or accused persons, the rights of the victims and public interest. 

Further, to protect the pretrial rights of accused persons and safeguard the interests of justice, effective coordination and cooperation among the criminal justice institutions is required. The formation of the National Council on the Administration of Justice (NCAJ) as the umbrella body bringing together various actors in the justice chain at the national level, was a significant move to achieve this purpose. This was subsequently followed by establishment of the Court Users’ Committees (CUCs) at the court level, to cascade the functions of NCAJ to the grassroots.

Consequently, through BBIC, created as a committee under NCAJ and which was chaired by Milimani’s High Court Criminal Division Presiding Judge Jessie Lesiit, several measures were been undertaken to ensure various actors comply with the law and the various instruments such as the Policy Guidelines. Such critical steps include sensitizing and training of stakeholders and the public on bail and bond issues, engaging relevant actors to streamline bail and bond processes, and undertaking measures, including legislative interventions, to ensure relevant agencies implement recommendations made by the Taskforce that developed the Guidelines on bail and bond.

Specifically, the end products of the Committee,  included various legal, policy and operation instruments for use by the criminal justice sector agencies concerned with the bail and bond administration. Essentially, development of the bail and bond legislation that is intended to operationalize Article 49(1) (h) and (2) of the Constitution, gives direction and streamlines the administration of bail and bond by the justice actors. The Case law Digests (Compendium) on bail and bond, developed by the BBIC provides a quick guide to track the emerging jurisprudence on bail and bond matters in Kenya. This Digest is useful to judicial officers, legal practitioners and various players in the criminal justice system.

The revised Policy Guidelines incorporates emerging issues, trends and other aspects that were omitted. The IEC materials as well as the Bail and Bond Curriculum and Training Manual, for public sensitization and use by training institutions, ensures comprehensive awareness and trainings for efficient application of the Guidelines.  The Bail and Bond implementation M&E framework was also developed to guide in collection and collation of data and reporting for use by various agencies to monitor implementation of Policy Guidelines. There is no doubt that this is an important step towards sustaining reforms in our country’s justice sector.

The BBIC was able to fulfill its mandate with support from justice agencies and development partners, primarily the European Union, United Nations Office on Drugs and Crime as well as the International Development Law Organization (IDLO).

As the BBIC unveiled its Status Report and outputs and handed over various instruments to the NCAJ following its end of term, not least, the training manuals and information materials, we can be assured that improvements to the administration of bail and bond will continue. The progress made by the committee is important in streamlining the justice sector to make it efficient and fair to all.

The writer is a Public Communication Officer at the Judiciary. Email: nlshikhutuli@yahoo.com

 

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