The Bill of Rights as provided for under the Constitution has lately become a subject of national attention — courtesy of the ongoing revitalised discharge of public duties by the enforcement agencies in the criminal justice system.
The rights of an arrested person are provided for under Article 49 of the Constitution.
Among other rights, it provides that arrested persons have a right to be brought before a court before 24 hours.
If the24 hours ends outside ordinary court hours, or on a day that is not an ordinary court day, these rights include being released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons and right to a fair trial.
The decisions of the courts on bail are what have perhaps captured the attention of the public.
The focus has been on the right of the accused persons to be released on bond and bail pending the hearing of widely publicised criminal cases. Court decisions granting bail and bond to accused persons are met with public reservations.
Opinions critical of judicial officers who grant suspects bail fill newspapers and airwaves while praising those who detain suspects through granting exorbitant bail and bond terms.
The bias of rights our courts grant accused persons is not a product of recent decisions. It’s rooted in traditions, precedence, and laws inherited from Britain. The Common Law, which is part of the Kenyan legislation placed greater emphasis and privileges to accused persons.
The Constitution, which is the basis upon which judicial officers release suspects on lenient bail and bond terms is deliberately weighted in favour of defendants accused of crimes.
Various Acts of Parliament also grant accused persons many assurances that the court invokes in its decisions.
By definition, any crime a person is suspected to have committed is an offence against the State. It’s why on a charge sheet it is not the complainant who initiates the case but the Director of Public Prosecutions on behalf of the government.
The government is the single most powerful entity in any country. This is a contest between two unequal parties.
To reduce the possibilities of injustice, the law seeks to address this imbalance by protecting the weaker party, hence the need for some certain privileges like right to a fair trial, procedural safeguards and most of all right to bail pending trial.
Releasing a suspect on bail helps make the contest fair by enabling one to retain his job if he was working and thus able to support a family, earn money to pay lawyers services, a chance to put affairs in order should he be ultimately be convicted.
And an opportunity to investigate the case and co-operate more meaningfully with one’s advocates. The major goal, as US Supreme Court associate Robert H Jackson stated on granting bail, “is to enable a suspect to stay out of jail until a trial court has found them guilty”.
It’s not a simple matter to drag someone to court alleging to have committed a crime.
At the very least, it means that someone suspects you of having committed a crime. Implied in this is the certainty of losing a job or be suspended. There is the additional jeopardy of aspersions to your reputation.
This cannot be undone whether one is found guilty or not.
There is widespread agreement among lawyers and judicial officers that if an accused is unable to post bail, he or she is severely handicapped and consequently detained. This makes it difficult to prepare a defence, locate witnesses, consult a lawyer, retain a job and support a family. One also suffers the stigma of imprisonment before judgment.
Without respecting the right of the accused, justice will not be done, there is nothing important than a fair trial. Without a fair trial, every other decision that comes of it is worthless.
Proper sensitisation to educate the public about the Bill of Rights, its importance and the historical, legal and philosophical background, is necessary.
If the public does not possess and value rights of persons as well as the ability to analyse it and apply it in cases like the accused, there is no way that they can be proper citizens.
The strength and practicability of democracy largely depend on the affirmation and protection of Bill of Rights — whatever pressures public opinion may impose on the body politics.
Jay Sikuku via email.