By Evans Ogada

Recent Court decisions on bail and bond have brought into sharp focus the consistency of judicial officers in so far as rendering rational decisions are concerned. Matters are not helped further when judicial officers discard the safety of constitutional language and right balancing tests and in its stead, employ colloquialism such as ‘woman-eater’ to describe and justify why a suspect that has been deemed not amenable to be admitted to bail or bond. Such labelling shew an uncomfortable seepage into legal rational norms of unhelpful colloquialism and in any event, a failure to observe the Constitutional mandate on a judicial officer to stick to constitutional tests aimed at balancing of competing values.

This article canvasses arguments in favour of the constitutionally prescribed proportionality test as the only sure way of staying the course of rational decision making when it comes to matters related to bail and bond. It also looks at constitutional interpretation as a sure path to staying the course of rational decision making with regards to bail and bond applications.

The chapeau to the Bill of Rights is titled, ‘rights and fundamental freedoms.’ An appreciation of what is meant by the term right or fundamental freedom is necessary in order for meaningful reading and interpretation of the constitutional text to be achieved.

The concept of fundamentality would readily fit into three conceptions that are identified with the concept of fundamental rights; the formal conception, the substantial conception and the procedural conception. The formal conception denotes that rights are contained in a constitution or are endowed with special protection by the constitution. The substantial conception ‘goes over and above the fact that a right is expressly mentioned in the constitution.’ It has been argued that the substantial conception evinces an intention to transform human rights into constitutional rights, such that human rights and constitutional rights are seen as ‘extensionally equivalent.’

The procedural conception understands that once human rights norms are included in a constitution, the judiciary is then vested with the power of judicial review over all state authority. This institutional device limits the power of parliament and in this respect, ‘fundamental rights are an expression of distrust in the democratic process,’ in their majoritarian tendency to overlook minority concerns. Therefore, the judiciary is empowered under the procedural conception of fundamental rights to ensure that the actions of state, including the legislative act of parliament conforms to the special importance accorded to fundamental rights.

From the preceding illustration, the Constitution of Kenya demonstrates the following characteristics with regards to the concept of fundamentality of rights; with regards to the formal conception, the right to bail examined from the formal conception prism would be found to be first, anchored within the Constitution of Kenya and enjoys special protection in that the right to bail, like all other rights in the Bill of Rights belong to the individual and are not granted by state.

With regards to the substantial conception, regard has to be had to the place and purpose of human rights within the Constitutional scheme. Therefore, in the context of the Kenya Constitution, it would be argued that the fact that human rights has its pride of place within the constitutional hierarchy, since human rights is classified as an essential value, a national value or principle of governance, and also an element of purposive interpretation, then the ‘question of substantiation of foundation of fundamental rights cannot be looked at without looking at the question or substantiation of human rights.’ It therefore requires an interpreter to engage in a fact finding exercise so as to establish what extent does the Constitution intend to provide protection for a human rights provision, even if that human rights provision is not contained in the Constitution.

Within the context of the Kenyan Constitution, the procedural conception can be deduced from within the Constitution in the following provisions; first, that the High Court has jurisdiction to address any question regarding the interpretation of the Constitution, where it is alleged that ‘any law contravenes or is inconsistent with the Constitution and any question whether anything said to be done under the authority of the Constitution or any law is consistent or in contravention of the Constitution.’ Secondly, any permissible derogation with regards to a fundamental right should not ‘limit the right or fundamental freedom so far as to derogate from its core or essential content. It therefore an obligation on the interpreter of the Constitution to establish what is ascribed to a fundamental right or freedom as its core or essential content.

The right to be admitted to bail or bond and corollary rights.

The right to be admitted to bail or bond under the Constitution is not a stand-alone right. The right must be seen in light of a purposive reading of the constitution, which aims to give meaning to other rights as well, which include the freedom and security of the person, in its demand that one cannot be deprived of freedom arbitrarily or without just cause, and that any accused person must be deemed innocent until proven guilty. Instructively, the right to be deemed innocent appears in the Constitution as a constitutive element of the right to a Fair Trial.

Fair Trial rights have a long history, that history being summarized ‘as a story of the relationship of citizens and their rulers, it is a history that sought balance between the authority of government and the rights of people. In its modern constitutional dimensions, it is a story which seeks to tether governors since if rulers imprison citizens without constraint, then the citizens have no other rights. In modern times, there is also a conscious balancing of the rights of the accused and the rights of victims.’ Fair Trial rights have a lengthy history emanating from the desire to ‘hold back the strong from oppressing the weak’, with historical origins traceable to the legendary Code of Hammurabi to the Magna Carta, the Petition of Rights which guaranteed rights of Englishmen, and attendant to the guarantee, limited the powers of the king, and the English Bill of Rights, agreed to by William of Orange and his wife Queen Mary, the Bill of Rights acting as an assurance that the rights guaranteed therein in will never be threatened.

Fair Trial rights in a modern democratic context seek to ensure that ‘all persons are treated with equal respect, and that they are not treated to any forms of discrimination, whether direct or indirect, equal treatment with respect being a fundamental tenet of justice.’ It therefore means that an accused person who claims his or her bail/bond rights must be treated with equal respect and not be discriminated against on the basis of prejudices, real or apparent.

The Right to security of the person and freedom from arbitrary detention can be traced to article 9 of the International Covenant on Civil and Political Rights (I.C.C.P.R.).

Article 9 of the I.C.C.P.R Article 9 states:

  1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
  2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
  3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
  4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
  5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Being that International Law provisions form part of Kenyan law, article 9 of the I.C.C.P.R. must be read into the Constitution, complementing the constitutional scheme.

With regards to the presumption of innocence, it is important to draw from the wise words of the Supreme Court of the United States in the case of Coffin v. United States, where the Court stated “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”

It therefore follows that an accused person appearing before a judicial officer must have the benefit of this presumption unless and until the presumption is overturned by way of the prosecution meeting the evidentiary burden and standards of proof in the criminal trial process. This position is fortified by the reasoning of the Canadian Supreme Court in the case of R v. Oakes, where the court stated thus, ‘The presumption of innocence lies at the very heart of the criminal law and is protected expressly by section 11 (d) of the Charter and inferentially by the section 7 right to life, liberty and security of the person. This presumption has enjoyed long standing recognition at common law and has gained widespread acceptance as evidenced from its inclusion in major international human rights documents. In light of these sources, the right to be presumed innocent until proven guilty requires, at a minimum, that: (1) an individual be proven guilty beyond a reasonable doubt; (2) the State must bear the burden of proof; and (3) criminal prosecutions must be carried out in accordance with lawful procedures and fairness.’

Having examined the conceptualization of the rights broadly, and looked at the right to be admitted to bail and bond and the rights that adhere to the question of bail and bond, it must be stated that the recent decisions by the courts on bail and bond have considerably ignored the rights philosophy and invariably, the Constitutional demand on interpretation and proportionality.

The Constitution of Kenya has an internal limitation guide. The limitation clause under the constitution is meant to provide a rational, systematic and procedurally sound method of limiting any rights within the constitution. The function of right limitation is much more complex and detailed. It is not to be viewed as governed by any single constitutional provision. The simplest approach in construing the anchor limitation clause, would have at the very least involve a proposed two tier test; first, has there been an infringement on an entrenched constitutional right and two, if so, is that limitation justifiable under the test espoused in article 24(1)? A comprehensive exercise of right limitation should be governed chiefly by the test under article 24, which in any case is the general limitations clause. Under article 24(1), a right can only be limited if the limitation is sanctioned under the law and additionally, that limitation should be reasonable and justifiable in an open and democratic society. The Constitutional prescription requires that, at the very minimum, that the nature of the right or fundamental freedom, the importance of the purpose of the limitation, the nature or extent of limitation and the relation between the limitation and its purpose and whether there is a less restrictive means to achieve the purpose of limitation, should be considered in the exercise of analysing the limitation of a right.

Equally important, any limitation should not negate the core or essential content of the right in question, meaning that any law should not impose any limitations on the essential content of any fundamental right or freedom.

A limitation of rights analysis was done in the case of the State v. Makwanyane, where the Court stated as follows: ‘The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. This is implicit in the provisions of section 33(1). The fact that different rights have different implications for democracy, and in the case of our Constitution, for “an open and democratic society based on freedom and equality”, means that there is no absolute standard which can be laid down for determining reasonableness and necessity. Principles can be established, but the application of those principles to particular circumstances can only be done on a case by case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interests. In the balancing process, the relevant considerations will include the nature of the right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy, and particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question.

The proportionality test, as an instrument for review of state action, ‘is the standard that guides the balancing of human or fundamental rights in law, requiring that the interference with rights by reasons that keep a reasonable relation with the intensity of the interference.’ The reasons that should be invoked in the denial of bail/bond are to be found generally in the Bail and Bond Policy Guidelines.

The Bail and Bond Policy guidelines sought to bring consistency and standards in the application of bail by concerned agencies. The Bail and Bond Guidelines have it as an objective that it seeks to ensure that bail and bond decision-making process complies with the requirements of the Constitution and also, it seeks to guide bail and bond decision-making by police and judicial officers. The Guidelines also seek to balance the rights of the suspects and accused persons with the public interest, including the rights of victims. The Guidelines are founded on six general principles namely:

  1. The right of accused person to be presumed innocent.
  2. Accused Person’s Right to Liberty.
  3. Accused’s obligation to attend trial.
  4. Right to Reasonable Bail and Bond Terms:
  5. Bail determination must balance the rights of the accused persons and

the interest of justice.

  1. Consideration for the rights of victims.

The import of having objectives and principles in the Bail and Bond Guidelines was intended to provide certainty, a disciplined and rational approach to the determination of bail or bond. The objectives and principles in being the raw material for rational decision making adhere to the Rule of Law in its demand that law has to be certain, logical, available to the general public prior to decision making and above all, consistent. It is therefore an inextricable requirement that any judicial officer must employ the aid of the Bail and Bond Guidelines in assessing any question in relation to the right to bail and bond. In engaging in the balance of competing claims such as the rights of the accused as against the consideration for the rights of the victim, it is the constitutional position that a proportionality assessment must be utilized. The test of proportionality has been argued to apply to conflicts of principles that may protect rights.

In employing the proportionality test, a judicial officer is therefore called to bear in mind that, ‘in the case of interference with a liberty or defence right, the analysis of the justifiability of this interference (according to constitutional law) includes, firstly, the statement that there is an interference with the right and, secondly, the justification of this interference according to standards of constitutional law.’ The interference with the right to bail accordingly must be justified in accordance with the multiple standards of right limitation within the Constitution, such as the scheme of limitation under article 24, the provisions of article 19(2) and 19(3) and article 20 which guides the application of the Bill of Rights. Equally, regard should be given to constitutional principles under article 10 all the while remembering that the Constitution calls for a purposive interpretation of itself.


There is need for a disciplined approach in procuring a balance between competing value assessments in the grant of bail and bond. The disciplined approach fortunately is constitutionally mapped as a robust proportionality test that should guide judicial officer in competing rights evaluation. The Bail and Bond guidelines must be employed as a guide in staying the course of a rational path to decision making when deciding on questions of bail and bond. Deciding on bail and bond matters in any other way amounts to indiscipline and an affront to the Rule of Law.