Financial burden of fines and bail, as well as the absence of adequate collateral for bonds, have led to overcrowding of correctional facilities with pre-trial detainees.
A research has established that despite a clear Bond and Bail Police Guidelines (BBPG) that was meant to decongest the prisons, the bail prices are exorbitant and disproportional to the social and economic status of accused persons, forcing them to remain in custody.
The courts and police have also been accused of detaining those whose cases attract a penalty of a fine and or six months in custody, against the law.
The study by the National Crime Research Centre (NCRC) and released on Friday shows that the bail and bond terms in Kenya do not consider the economic circumstances of suspects or accused persons, and in most instances, they are imposed without background checks, hence the high pre-trial detention rates.
“Bail and bond in Kenya is whimsically administered by the courts and the police. Some judicial officers treat bail and bond as a privilege rather than constitutional right,” the report states.
Additionally, the police are often unwilling to release persons suspected of serious offences such as murder on bail or bond.
According to the NCRC, given that many accused persons are young people who are vulnerable and unable to meet bail and bond terms, there is a need to fast track programmes such as diversion and consider restorative dispute resolution or non-custodial graduated fines for ordinary crimes.
The non-custodial graduated fines or free bonds should be considered for those who have been in custody for longer than three years as a result of ordinary crimes and unable to post bail or bond, according to the report.
The research study set out to investigate the level of satisfaction with the bail and bond policy guidelines, the challenges and gaps around the guidelines as well as the impact of the policy.
The study found that most members of the public have limited or no knowledge of the guidelines.
Other challenges include variation of cases, complaints over judicial discretion, slow processing of documents, and review of bail and bond terms. Allegations of corruption also still persist.
NCRC said though the average perception of the effectiveness of the BBPGs is high, statistics from the three key justice sector agencies -National Police Service, the Judiciary, and The Kenya Prisons Service -show that caseloads have generally remained the same.
This means the need to re-examine the BBPGs and implementation for better results is rife, according to NCRC.
Based on a sample of seven counties (Embu, Garissa, Kisumu, Mombasa, Nairobi, Nakuru, and Nyeri), 246 interviews were conducted on accused persons (in custody and outside) and duty bearers among the police, judiciary, prosecution, probation, the children’s department, and selected civil society actors.
The NCRC has also recommended that there is need to revise the policy guidelines to benefit from case law and complex situations and emerging issues including economic crimes, and handling cases of terrorism including among children. There is also need for clarification and declassification of crimes and offenses.
“The Constitution is clear on what petty offences are, yet the laws especially the Criminal Procedure Code and the Penal Code still use old classifications such as misdemeanours and felonies,” the report states.
The centre has also recommended the fastracking the process of automation and integration of government systems (Immigration, NTSA, Lands registries, and offices handling share certificates) with the judicial system to enhance the efficiency of the document verification process.
“Pre-bail reports should be mandatory for all criminal cases to ensure due consideration. Background information on socio-economic data of the accused as well as the rights of victims should be included,” the report states.
Though the right to bail and bond is a constitutional right in Kenya, this right is limited where justifiable grounds are established in accordance with the Constitution. Bail and bond can be denied after trial and pending an appeal.
“The weak supervision of bail and bond compounds the issues of discretion and processing of documents thus making the BBPGs implementation process difficult,” the report further states.
The study has further revealed that cash bails are in many cases not refunded prior to taking plea.
Bail is an agreement between an accused person and the court that the accused person will attend court when required, and that should the accused person abscond, in addition to the court issuing warrants of arrest, a sum of money or property directed by the court to be deposited, will be forfeited to the court.
On the other hand, bond is an undertaking, with or without sureties or security, entered into by an accused person in custody under which he or she binds him or herself to comply with the conditions of the undertaking and if in default of such compliance, to pay the amount of bail or other sum fixed in the bond. In some cases, bail is issued alongside the bond while in other cases the courts can issue either.
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