Magistrate courts punishing the poor with exorbitant bail terms

In the rhythm of democracy, the pulse of right to protest beats loudest when the voices of the many challenge the might of the few. Yet, in Kenya, that rhythm is being stifled, not only through overt bans or censorship but also by the silent hand of the courts, particularly within the subordinate courts. In recent months, the criminal justice system has exposed its underbelly; a pattern where bail terms for arrested protesters and those charged with petty offences border on punitive excess, guised as judicial discretion. While the Constitution makes clear that bail is a right not a privilege, the magistracy continues to apply it as a sieve to separate the privileged from the ordinary citizen, casting shadows over the very notion of justice.

Article 49(1)(h) of the Constitution affirms unequivocally that “an arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial”. The language is neither ambiguous nor suggestive; it is mandatory. Yet, across courtrooms in the country, bail amounts far exceed the financial capabilities of ordinary Kenyans, particularly those arrested during protests. These are often youth, students, and workers from informal settlements. While there is no explicit judicial denial of bail, the courts have perfected a more subtle affront: Weaponising ‘reasonableness’ to impose conditions that are effectively unattainable.

This judicial trend reflects a deeper constitutional betrayal. The framers of the Constitution envisaged a transformative judiciary, one that would recalibrate the scales of justice to reflect values of dignity, equality, and inclusivity. As articulated by South African jurist Karl Klare, transformative constitutionalism demands that institutions, including courts, become active participants in societal change, redressing historical inequities and resisting emerging injustices. It does not permit the preservation of colonial-era judicial habits that privilege state security over individual liberty. By setting exorbitant bail, magistrates do not just deny freedom, they enable state repression.

The state, aware of the economic limitations of its citizens, especially dissenters, arrests them under dubious charges, knowing that the judiciary will seal their fate with unreachable bail. This practice undermines the doctrine of access to justice, itself enshrined in Article 48 of the Constitution, which compels the state to ensure that “every person has access to justice.” What access is there when freedom depends on one’s wallet? One cannot ignore the disproportionate impact of this judicial posture. A protester charged with a misdemeanour such as unlawful assembly may be granted cash bail of Sh100,000 or more, an amount grossly mismatched with the offence.

The courts often justify such terms with vague references to public order or deterrence, forgetting the core criminal law principle that bail is not punishment. It is not the role of pre-trial processes to exact retribution. The presumption of innocence, a sacrosanct principle in Article 50(2)(a) is eroded when liberty is contingent upon wealth. This is not an attack on judicial independence but a call for judicial introspection. Kenyan courts have, in landmark decisions, demonstrated their potential for boldness.

The 2017 presidential election annulment being a global reference point. But that same courage must descend to the lower echelons of the judiciary. If magistrates are the first point of contact for justice-seekers, their discretion must reflect constitutional fidelity. Bail must never be a privilege for the few but a shield for all, regardless of class or cause.

Chief Justice Emeritus Willy Mutunga, an ardent advocate of transformative justice, warned against “the tyranny of technicalities and the convenience of elite jurisprudence.” He urged that judges, even at the magistrate level, embrace the lived realities of Kenyans. Indeed, where bail terms exceed the monthly income of an entire household, they cease to be legal and become oppressive. International cases echo this view. In M vs. Germany (2009), the European Court of Human Rights held that bail must not be “so high as to effectively negate the right to release.”

Nearer home, the Nigerian Supreme Court in Abacha v. State (2002) held that the purpose of bail is to ensure attendance at trial, not to punish or embarrass. Kenya cannot lag behind when the jurisprudential consensus is that freedom must never be pegged to wealth. The Constitution calls for more than legal formalism. It calls for substantive justice, grounded in the lived experiences of all. In a nation where over 40 per cent live below the poverty line, the courts must not pretend that financial thresholds are neutral. The law must account for the socio-economic landscape in which it operates. To do otherwise is to preserve privilege and penalise protest.

What is required now is institutional clarity and accountability. Judicial training institutions must embed socioeconomic context into their curricula. Bail guidelines must be revisited and enforced with rigour. Civil society, the Bar, and the Bench must hold conversations that go beyond legal theory and enter the realm of practical justice.

Most importantly, magistrates must resist the urge to side with the powerful simply because their robes afford them immunity. Justice must be seen not merely as blind but as humane. A judiciary that fails to see the connection between exorbitant bail and systemic injustice becomes complicit in the silencing of the democratic voice. The Constitution speaks. Bail is a right. Denying it, however subtly, is to deny liberty itself. Let the gavel of justice fall not on the poor, but on the unjust.