A High Court Judge at Milimani’s Criminal Division, Justice Luka Kimaru, said the prisons now hold more convicted offenders than accused persons whose cases are still before court. One of the long term objectives of the Bail and Bond Policy Guidelines is to decongest prison facilities.
Speaking during a consultative meeting held at a Nairobi hotel last Friday to discuss the implementation of the policy guidelines and the challenges experienced, Judge Kimaru who is also the chairman of the National Community Service Orders Committee, said the number of remandees in prison facilities across the country has gone down from 32,000 in 2014 to 21, 000, in 2017.
“There are more convicted offenders serving jail sentences in prison facilities than accused persons who have not been convicted. This was not the situation before 2015 in the country when there were more remandees in these facilities than those convicted to serve sentences,” Justice Kimaru explained.
He added: “Kenya is doing very well because of development and application of the policy guidelines.” The judge however, called on all judicial officers to change their mindsets and fully commit to administering bail and bond terms in line with the Constitution of Kenya 2010, and the policy guidelines.
“The overriding principle in bail and bond application is what the Constitution says — an arrested person has the right to be released on bond or bail unless there are compelling reasons not to be released.” Judge Kimaru maintained.
Lady Justice Jessie Lesiit who heads the Criminal Division at Milimani Law Courts and also chairs the Bail and Bond Implementation Committee (BBIC), discussed the issuance of bail by courts, determination of bail/bond terms, bail hearings and pre-bail reports, sureties and security, bail processing in courts, absconding and consequent process as well as supervision of persons released on bail and how these issues are dealt with in various courts, across the country.
She noted that courts vary in practice in how to apply provisions even as concerns are raised on how the various courts administer bail and bond, a situation she said need to be addressed.
Judge Lesiit cited the delays in the process of verification of security, delays in approval and the different modes of approval of sureties by courts, the lack of institutionalized process for supervision of persons released on bail and handling of special needs offenders in remands and prisons, as some of the concerns that have been raised during monitoring the implementation of the guidelines by her committee.
She said her committee has proposed development of practice directions to guide courts on bail processes, incorporation of bail/bond variable in court returns template, increased support to Probation Department to meet demand for reports and supervision, policy engagement on supervision, uniform guidelines and development of checklist on approval of sureties and verification of security documents, as some of the measures that ought to be undertaken to streamline administration of bail and bond by courts and the police.
Participants during the one-day conference, which brought together judges and magistrates from the County of Nairobi as well as stakeholders in the justice chain, were exposed to implementation strategies for effective bail and bond administration, socioeconomic impact of pre-trial detention in Kenya as well as the experiences in the application of bail and bond guidelines by judicial officers and defence lawyers.
They called for sensitisation of the public on Article 49(1) (h) of the Constitution of Kenya with regard to the right of an arrested person to be released on bond or bail and especially the fact that all offences are bailable. Further, they called for establishment of a special office in the Judiciary to deal with securities and sureties during bond processing.
The issues of whether courts should consider the offender or the offense when applying bail and bond terms and what constitutes compelling reasons with regard to opposing bail/bond terms in the light of what the Constitution states, were discussed at the forum. Magistrates, prosecutors and police officers maintained that these issues still posed great challenges in the administration of bail and bond terms.
Other facilitators during the workshop included: Justices James Wakiaga and Grace Ngenye, Lawyer Solomon Wamwayi and the Independent Medico-Legal Unit (IMLU) Program officer Ann Kamau. Ms Catherine Mwaniki from the Office of the Director of Public Prosecution (ODPP), Milimani Law Courts’ Chief Magistrate Francis Andayi, National Council on Administration of Justice (NCAJ) Executive Director and Chief of Staff in the Office of the Chief Justice Mr Duncan Okello, were also among those who made presentations at the forum.
Overall, the policy directions emphasize, release on bail/bond as a constitutional right, need for bail terms to be reasonable, the right to review of bail terms, information on granting/denial of bail/bond must be given, rights and welfare of victims of offences, special consideration for the vulnerable and special groups, new approach to minor cases, particular attention to transnational offences as well as inter-agency co-ordination, oversight of places of detention and public education among other issues.