Courts accused of crushing dissent with punitive bail and bond terms

The Judiciary has come under heavy scrutiny over the handling of cases involving protesters and suspected looters.

This comes after several suspects were recently charged with the same crime but have been freed on different bond terms by different magistrate courts.

Some have been slapped with terrorism charges after they were accused of torching government installations.

These charges have been approved by the Office Director of Public Prosecutions (ODPP), headed by Renson Ingonga.

Among those charged with terrorism are Manyatta MP Mukunji Gitonga and Democracy for Citizens Party youth leader Wanjiku Thiga and the party’s Kiambu leader Peter Kiyanjui.

Others are eight men accused of setting the Mawego Police Station in Homa Bay County on fire during the burial of Albert Ojwang’, who was killed in police custody on June 8.

Kennedy Oluoch, Nicholas Otieno, Tofiq Owiti Mohamed, Michael Omondi, David Otieno, Robert Ouko, Samuel Ouma and Erick Obunga had been arraigned in a Homa Bay court but were later re-arrested by police.

They were moved to the Anti-Terrorism Police Unit headquarters in Nairobi and charged with terrorism at the Kahawa Law Courts on June 15.

The eight men are currently being held at the Kamiti Maximum Prison awaiting a bail ruling set for July 22.

The inconsistencies in court decisions handling demo suspects have sparked a debate with Kenyans questioning the independence of the DPP and judicial officers.

Among them is the Law Society of Kenya (LSK) President Faith Odhiambo, who said that judicial officers have to ensure that bond and bail terms given to suspects are manageable.

“You cannot place exorbitant bail or bond terms knowing fully well that they will not be able to afford it.”

She said that it should not be a punishment for the accused persons, especially in some instances involving children.

The LSK president reads malice in some of the bond and bail terms by the courts, saying one may interpret them as the government using the criminal justice system to clamp down on dissent.

“We also signal a warning that courts should avoid being weaponised to be used against the people of Kenya.”

She says that courts should not be used by police and DPP to weaponise against citizens.

Judicial Service Commission (JSC) Secretary Winfridah Mokaya condemned what it termed as attacks against judicial officers.

She said that there are avenues for any of the aggrieved parties for recourse, like appealing to a higher court.

“Resorting to personal attacks against judicial officers not only subverts due process but also imperils the sanctity and independence of the Judiciary,” said Mokaya.

She said the JSC is committed to defending the decisional independence of its officers, telling them not to fear but to adhere to the law.

According to Mokaya, the JSC is working closely with the Judiciary Police Unit to ensure the safety and functioning of courts.

“The commission calls upon all members of the public, civic leaders and institutional stakeholders to respect the dignity of the judicial institutions.”

Kelvin Kubai, a lawyer, argues that the decision to charge the suspects with terrorism may, in the long run, end up radicalising them.

He says that demos held on July 7 (Saba Saba Day) were Kenyans exercising a political right since they were held to commemorate the July 7, 1990, demos that ushered multiparty elections in the country.

“Even if it means Sh10 is enough to make me attend court, the court has no business of granting a bail of Sh1 million.”

He added that the recent terms by different courts seem to imply that the accused persons are guilty.

Kubai accused the ODPP of playing politics with the terror charges and in future, he warns could boomerang against the office.

“If the prosecution does not prove these charges as provided for, then it means the suspects can sue for malicious or wrongful prosecution.”

The lawyer adds that while in detention, the government has to maintain the suspects there while cases are ongoing, yet there is a high likelihood that the charges will be dismissed.

Kubai warns that the State does not have the capacity to compensate all the people who have been charged with terror charges that cannot be proven.

“There is a need for magistrates and courts to remain independent and to look at the element of each and every case on its own merit.”

Eric Muriuki, who has represented LSK in cases involving demos, says that the ODPP is now an extension of the executive.

“This is a scheme by the executive and judiciary to punish young Kenyans agitating for better governance,” says Muriuki.

He urges the Judiciary to come up with clear guidelines on bond and bail terms by taking into consideration the living conditions of Kenyans.

He calls for the removal of Ingonga for surrendering the independence of his offence and allowing the office to be abused by the State. 

“Igonga has clearly shown that he is willing to fetch water for the Executive despite the fact that the architects of our constitution were trying to safeguard against this very scenario.”

Kiroko Ndegwa, also a lawyer, says that there are bond guidelines for courts on whether to grant or deny and how much.

“The law is meant to serve man and not vice versa.”

He says that he understands when the ODPP goes for terror charges since some of the acts, like disruption of services, are within the Prevention of Terrorism Act.

He says that everyone has a right to access justice, and any hindrance to that through a hefty bond or bail should be addressed to allow everyone to access justice.

Quincy Gitahi, a lawyer, says the DPP should clearly state reasons why they want the accused denied bail, and when setting the bail terms, courts should protect the rights of an accused person.

“The purpose of bail is to ensure that the accused person appears in court every time they are needed,” said Gitahi.

He says that courts should pay attention to pre-bail reports, and they would realise how impoverished and vulnerable some of the arrested protestors are.

“The process of review and appeal, which Judicial Service Commission is advising, is long and tedious. A day in custody is such a long time because freedom is everything one needs to enjoy all other rights.”

Gitahi goes on to say that the inconsistencies in the bond and bail terms given by different courts paint them in a bad light.

“Why would one court set exorbitant bail terms yet another one is setting favourable terms? It shows that courts are guided by different factors instead of the bail and bond guiding policy and the realities,” heposes.

He calls on the courts to note the DPP’s mischief in the cases saying in some instances the DPP charges protestors and abandons the cases which forces the courts to acquit the accused persons.

“We can only hope that someday, we shall get a DPP who understands what exactly he is doing and one he can lead the institution without fear or favour.”

He said that it is very hard to defend the DPP since before he would charge people with participation in unlawful assembly, and people would be freed, but now his office is picking severe charges for a similar crime.

“Where someone was to be charged with arson, the DPP chooses to charge with Terrorism, where they should have charged the accused with theft, they charge with robbery with violence,” says Gitahi.

He adds, “We need serious and radical changes to some of these institutions to achieve a proper criminal justice system.”

Judicial Service Commission (JSC) Secretary Winfridah Mokaya condemned what it termed as attacks against judicial officers.

She said that there are avenues for any of the aggrieved parties for recourse, like appealing to a higher court.

“Resorting to personal attacks against judicial officers not only subverts due process but also imperils the sanctity and independence of the Judiciary,” said Mokaya.

She said the JSC is committed to defending the decisional independence of its officers, telling them not to fear but to adhere to the law.

According to Mokaya, the JSC was working closely with the Judiciary Police Unit to ensure the safety and functioning of courts.

“The commission calls upon all members of the public, civic leaders and institutional stakeholders to respect the dignity of the judicial institutions.”