By: MR. KERIAKO TOBIKO CBS, SC
DIRECTOR OF PUBLIC PROSECUTIONS, KENYAAT
THE CHIEF JUSTICES GARDEN AT THE SUPREME COURT BUILDING
LAUNCH OF THE BAIL/BOND POLICY[20TH MARCH, 2015]
The Honorable the DCJ;Distinguished guests;Ladies and
Gentlemen;
All protocol observed. 1. On behalf of the ODPP, I am honored to
have been invited to participate in the development of the Bail and
Bond Policy Guidelines. And also to attend their formal launch
today.
2. I thank the CJ, DCJ and the entire judiciary for initiating
and spearheading the process that has led to the development of the
Guidelines.
3. I also commend Lady Justice Achode, the Chairperson and all
the other members of the Taskforce for being able to deliver on
this crucial assignment within very strict timelines and for
producing a very comprehensive and high quality document.
Ladies and Gentlemen,4. Under our Constitution, a person charged
with a criminal offence is presumed innocent until proven guilty.
Flowing from this presumption of innocence, the Constitution
requires that a person charged with a criminal offence shall be
released on bail/bond on reasonable terms unless there exist
compelling reasons for denying bail.
5. Unlike in the old Constitution, under the current
Constitution, all offences including capital offences such as
murder, treason, and robbery with violence are bailable.
6. The challenge however has been (and still is) that the
Constitution does not stipulate what constitutes compelling
reasons.
7. Therefore, what amounts to compelling reasons has been left
entirely to the discretion of the trial judge/magistrate.
8. This unchecked discretion has often times resulted in
unpredictable, conflicting and contradictory decisions from the
courts.
9. Furthermore, it has led to a blame game between the
investigators, prosecutors and the judiciary. On the one hand,
investigators/prosecutors blame judges and magistrates for being
too lenient and too generous in granting bail to those persons
charged even with the most serious offences such as murder,
terrorism, drugs and sexual violence. 10. On their part, judges and
magistrates blame investigators/prosecutors for simply not doing
their job, and for failing to demonstrate compelling reasons why
bail should be denied.
11. Happily, the Guidelines being launched today, do set out to
a large extent what would constitute compelling reasons.
12. Therefore, investigators and prosecutors know what they are
required to prove if they are to succeed in opposing bail. There
should therefore be no excuse on their part for not providing the
required material and justification in opposing bail. Prosecutors
cannot and should not be expected simply to stand up and say I
oppose bail and expect the court to agree with them. They must
bring themselves within the requirements of the Guidelines. On
this, I therefore call prosecutors to up their game as they no
longer have excuses for not doing their job.
13. On the other hand, judges and magistrates will no longer
exercise their discretion in a manner that is or may appear to be
capricious and unreasonable. What constitutes compelling reasons
shall no longer depend on the size of the shoe of the particular
judge or magistrate. Judges and magistrates when making their
bail/bond decisions must know that their decisions will be tested
in the higher courts and in the court of public opinion on whether
they are reasonable, justified and consistent with the Bail/Bond
Policy Guidelines.
Ladies and Gentlemen,14. We have been told repeatedly that the
aim of bail/bond is to ensure that an accused person does not
abscond trial. Whilst this is no doubt a very important
consideration, it cannot be the only consideration. There are other
equally important and competing considerations for example:
The safety and security of the witnesses;
The potential of the accused person to interfere with
investigations and witnesses; The views and the interests of the
victims of crime;
The likelihood of the accused committing other crimes;
The safety and security of the accused persons themselves; and
The question of national and public safety and security.15. These
are all factors that must be balanced as against the accused
persons right to be released on bail.
16. In other words, the right to bail, constitutional as no
doubt it is, is not absolute; is not unqualified. That right must
be balance as against the other rights; the rights of the victim
and of the wider public. 17. I am happy to note that these
Guidelines do provide guidance on how to strike this delicate
balance.
18. Am particularly impressed that the Guidelines do recognize
the participation of victims of crime in the bail/bond processes
and also give special recognition to the unique circumstances of
the vulnerable parties in the criminal process.
Ladies and Gentlemen,19. In conclusion, it is important that
following todays launch, these Guidelines be widely circulated to
the public and that all criminal justice sector agencies, players
and stakeholders be sensitized about them.
20. It may also be important to consider whether the CJ or the
Rules Committee should formally gazette these Guidelines in order
to give them the requisite statutory anchorage.
21. On my part, I wish to affirm our commitment as ODPP to
working closely with all the other agencies and stakeholders in the
criminal justice system in ensuring that the Bail/Bond Policy
Guidelines are fully implemented.
22. I thank you.
KERIAKO TOBIKO CBS, SC
DIRECTOR OF PUBLIC PROSECUTIONS
20th March, 2015
