Bid to deny terrorism suspects bail meets stiff opposition

Chief Justice Willy Mutunga. Photo/FILE 

By Galgallo Fayo, gfayo@ke.nationmedia.com

In Summary

• Lawyers said reviewing the laws governing bail to deny terrorism suspects freedom as the cases are heard would be against the Constitution, which guarantees bail to all suspects.
• Article 49 (1) (h) of the Constitution guarantees rights to be released on bond or bail and on reasonable conditions pending charge or trial, unless there are compelling reasons not to be released

Kenya’s bid to tighten the noose around terrorism suspects in the face of rising insecurity may require the Constitution to be changed.

 

Lawyers said reviewing the laws governing bail to deny terrorism suspects freedom as the cases are heard would be against the Constitution, which guarantees bail to all suspects.

“The right to bail has been granted by the Supreme Law and any subsequent law that takes away that right is unconstitutional. This is reaction to politics and a bid to constrain judges and magistrates,” criminal lawyer Cliff Ombeta said.

An amendment proposed in the new Statute Law (Miscellaneous Amendments) Bill 2014 seeks to expand the grounds that a court or the prosecution can rely on to deny accused persons freedom pending trial.

“There is no offence that is not bailable. Even murder is bailable. The more they put exception (in the statute laws), the more they make it unconstitutional,” said senior counsel Ahmednasir Abdullahi.

Article 49 (1) (h) of the Constitution guarantees rights to be released on bond or bail and on reasonable conditions pending charge or trial, unless there are compelling reasons not to be released.

Mr Abdullahi added that the Judiciary was already considering most of the issues listed as grounds for denying bail including if there are reasons to believe the suspect can evade court, interfere with witnesses, be exposed to danger or commit an offence on release.

Other reasons to be considered include nature or seriousness of the offence, the character, antecedents, associations and community ties of the accused person and the strength of the evidence of his having committed the offence.

Mr Ombeta said the compelling reasons referred to should be based on facts and evidence presented in court, not assumptions, in line with the fundamental principle of innocent until guilt is proven.

“How can someone assume that you are a terrorist and you will go and harm more people. It cannot stand on any law,” said Mr Ombeta.

The Criminal Procedure Code (Cap 75) gives wide discretion to the courts to determine bail and its terms. If the amendment is adopted to become Section 123 (A) of the code, it would elaborate more circumstances on which bail can be denied.

He said denial of bail would also contravene article 28, which guarantees the right to a person’s dignity being respected.

Mr Ombeta said courts could opt to ignore the Criminal Procedure Code and base decisions on the Constitution, if the two statutes are inconsistent.

The proposed amendment comes even as Chief Justice Willy Mutunga appointed a taskforce to develop policies on bail as the police and Judiciary move to counter the terrorism threat.

The eight- member taskforce will have seven months to develop a National Bail Policy and make recommendations on legislative and regulatory amendments necessary for addressing inconsistencies.