Kenya tightens noose on terror suspects through review of bail rules

Kenya is taking steps to close loopholes in the constitution that allow courts to grant bail to terrorism and capital offence suspects with the formation of a special joint taskforce headed by Chief Justice Willy Mutunga.

The taskforce, established May 13th and comprising five members each from the parliament, the judiciary and the public prosecutor’s office, is developing guidelines judges and magistrates across the country will have to consider before granting bail to suspects in the most serious cases.

The guidelines, expected to be completed by the end of June, will be operational once gazetted by the Director of Public Prosecutions (DPP) without need for additional parliamentary approval, officials said.

Currently, Kenya’s constitution makes all offences, irrespective of their gravity, bailable. According to Article 49, “An arrested person has the right… to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”

It is this provision that some legal analysts point to as the weak link in prosecuting terror and capital offenders.

“Under the old constitution, capital offences such as murder, terrorism and treason were not bailable,” DPP Keriako Tobiko told Sabahi. “This review is a step in the right direction because my office has been pointing a finger to the judiciary for releasing terror suspects on bail.”

Tobiko expressed optimism that the taskforce would be successful in providing the necessary clarifications to interpret constitutional clauses that deal with bail.

The taskforce will also submit recommendations to parliament to remove or change constitutional clauses that are contradictory on the bail issue, thus tightening the criminal justice system and making it harder for defence attorneys to win bail for terrorism suspects, he said.

“Presently, prosecutors are not able to easily prevail upon magistrates or judges not to grant bail to a terror or capital offence suspect because courts insist on prosecutors giving compelling reasons for denial of bail,” he said. “Because the constitution is silent on what these compelling reasons are, judges and magistrates use their discretion to interpret and decide whether to grant bail or not.”

Tobiko said the guidelines will list all compelling reasons and justifications for bail.

Terror suspects out on bail strike again

Frustrations have been simmering within the executive branch over the bail issue after string of terror attacks in Kenya, with Deputy President William Ruto shifting blame onto judges for granting bail to terror suspects.

“We call on the judiciary to be a strong partner in the war against terror,” Ruto told reporters at his office on May 5th. “We call on all players in the justice, law and order sector to stand with Kenyans. The constitution provides a robust framework of civil liberties, which all Kenyans are meant to enjoy. The liberties must work for Kenyans, not against Kenyans.”

Ruto gave the example of suspects Jamal Mbarak Awadh and Suleiman Mohammed Said who were killed May 3rd in a terrorist attack on a bus in Mombasa they allegedly carried out while released on bail.

Ruto claimed there were 22 other suspects accused of terrorism and capital offences out on bail. “We believe that there is more that the judiciary can do,” he said.

Ainamoi lawmaker Samuel Chepkonga, who is part of the taskforce, said the parliament decided to act after realising that the current bail legislation was not watertight.

“Take an example of Hussein Nur Mohammed, who was accused of planning an attack in which an improvised explosive device was planted in a matatu in Nairobi in 2013,” he told Sabahi. “Before the attack, he had been released on bail with a pending terror case in court.”

“Once we have these guidelines,” Chepkonga said, “there will be no more guesswork when dealing with dangerous criminals on bail issues.”

Denial of bail amounts to denial of justice

For their part, judges and magistrates have said they are acting within the law, while lawyers have expressed mixed reaction to the pending new guidelines.

Criminal defence lawyer Okongo Omogeni, founding partner of Okongo Omogeni & Co. Advocates in Nairobi, said the courts should have discretion to make bail decisions on a case-by-case basis.

“I prefer a situation where a judge or magistrate listens to a case and depending on issues raised is able to make sound judgment after balancing between interest of national security versus the constitutional rights of a suspect,” he told Sabahi.

When considering bail, Omogeni said, judges must consider the rights of the accused person as well as national security interests, public safety, protection of witnesses and victims, and the likelihood of the suspect absconding or committing similar offences in the future.

“Where the accused is likely to commit further offences, society should be protected by denying the suspect bail, but the prosecution should be able to demonstrate this to a court and in many cases, the DPP office has not been able to do so,” Omogeni said.

Lawyer Kenneth Mwangi Mburu of Kenneth Mwangi Mburu & Advocates in Nairobi said the introduction of set rules that deny suspects their right to bail represents a breach of justice.

“Judges and magistrates have absolute discretion to grant or deny bail to suspects, so the executive or parliament should not be seen to exert undue influence on the mandate of the judiciary, which would amount to interfering with the independence of the judiciary,” he told Sabahi.

Containing the terror, criminal threat

Mwiti Gikunda Anderson, an attorney and managing partner at Paul-Anderson & Co. Advocates, on the other hand, says he supports the development of the new guidelines on bail.

“Although it is a suspect’s constitutional right to be freed on bail pending a trial, this right should not be made outright if releasing a suspect harbours more harm than good to the society,” he told Sabahi.

“The country must have a way of safeguarding itself against destruction by dangerous criminals and terror suspects,” he said. “Denying a bail privilege is one way of containing their activities.”

Anderson noted that the law was designed to be dynamic and not set in stone. “Simply because the constitution says that all crimes are bailable, this does not mean magistrates and judges should just free anyone for the sake of wanting to meet the constitutional obligation.”

While it should remain the prosecutor’s job to provide the court with convincing reasons as to why a suspect should not be eligible for bail, the judiciary should also play its part in the war on terror by not being too lenient, he said.

–sabahionline.com