The proposed insertion – Section 123 A(1)(a) – provides that “court may decline to grant bail where the court or a police officer has a reason to believe” that a person may, if released on bail; fail to surrender to custody, or commit an offence, or obstruct the course of justice, or interfere with witnesses.
The danger and loophole capable of abuse in this amendment lies with the court denying a person bail on a police officer’s “reasons to believe” – without any judicial contestation between the state and a suspect. In this amendment, a police officer has the discretion to decide: the relevant circumstances; nature or seriousness of an offence; character, antecedents, associations and community ties of an arrested; arrested’s previous conduct under bail; and the strength of evidence against an arrested person that would warrant a continued confinement.
In essence, the courts have the discretion to either make a decision to grant or deny bail upon; (i) both the state and an accused having made their say in court; or (ii) where a police officer has his/her say in court without a suspect/an arrested making his/her say. The latter is unconstitutional. Through this proposal, the State will deny a suspect liberty – a gross violation of rights as liberty belongs to every individual and cannot be granted by the State.
The constitutional provision under Article 49(1)(h) is premised on a rebuttable presumption of the law engraved in Article 50(2), that one is presumed innocent until the contrary is proved. It is along this presumption that the Criminal Procedure Code provides for causing the appearance of an arrested before court, reasonably. For arrests without a warrant, other than the exceptions of offences under bail, within 24 hours. The OCS or the Court may instead of taking bail, release a person on bond or without bond if he/she lacks sufficient evidence to proceed with charges.
In the contrary a <em>Habeas Corpus </em>application can be made to the High Court, to compel the police to produce the arrested before a court of law. Further confinement of a suspect without pressing charges could literary mean imprisonment. Curtailing a fundamental right enshrined in Article 25(d) of the Constitution. A right that may not be limited.
<h3><strong>Who should decide to deny bail, the police or the court? </strong></h3>
Section 123 of the Criminal Procedure Code, has the effect that the court should make the decision to deny bail. It provides that whether a person is detained by an OCS without a warrant or is before court, that person may be admitted to bail.
The fact that a suspect, if denied bail at the police station can make an application for bail in court, reaffirms this.
Continued detention of an arrested/suspect without bail is unlawful and amounts to an infringement of the person’s right to liberty. In as much liberty is not an absolute right, the onus lies on the state to prove to the court to the latter’s satisfaction, that the “compelling reasons” fronted can warrant the limitation of this right. This is irrespective if one is a suspect of murder, treason, robbery with violence, attempted robbery with violence and any related offence.
When in such cases courts hold that “He who alleges must prove”, common sense and precedence would dictate that the arresting officer’s allegations, of compelling reasons against grant of bail, must be subjected to proof. Proof is not to the police, but to a third party – the court. Most important, the one to whom the allegations are levelled against must have his say – in a court of law. This sums justice on a balance of scales.
The National Assembly and the police, as state organs must address themselves to Article 21 of the Constitution. It dictates that the state and all state organs are enjoined to observe, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. The right not to be detained without trial, as a freedom and security of the person is not an exception.
In the wake of the Constitution 2010, Kenya vide Article 2(5) and (6) is bound by International Law. On 1 May 1972, Kenya ratified the International Covenant on Civil and Political Rights. Article 9 of the treaty protects the right to liberty and security of a person. It dictates that anyone arrested on a criminal charge should be brought promptly to a judge to exercise judicial power and is entitled to trial within a reasonable period or to release.
The treaty also gives recourse to anyone deprived of liberty by arrest or detention. He/she is entitled to take proceedings before court, for the court to decide without delay on the lawfulness of the detention and order a release if the detention is unlawful.
Articles 3 and 9 of the Universal Declaration of Human Rights further protect the liberty of a person, including the right not to be subjected to arbitrary detention.
Closer to home is the African Charter on Human and People’s Rights, in which Article 7 makes reference to the rebuttable presumption of the innocence of an individual until a competent court or tribunal proves otherwise.
Continued detention without trial of a suspect/an arrested person, solely on a police officer’s reasons to believe, without contestation by a suspect on the right to bail is unwarranted. It denies an individual the right to have his/her case heard. This particular proposed amendment to the Criminal Procedure Code must be strongly rejected by the National Assembly. It is retrogressive. It goes against the will of Kenyans when they adopted a Constitution that protects the liberty of a person. Against the backdrop of a security force that has been known to misuse their powers to detain without trial, giving powers to the police to determine if a suspect should be granted bail or not opens the door to gross human rights violations.