RIGHT TO BOND OR BAIL NOT ABSOLUTE

Reported by Dorcas Onam Mac'Andere

Issues:

1. Whether the right to be released on bond or bail under Article 49(1) (h) of the Constitution is absolute.
2. Whether under Article 49(1) (h) of the Constitution, interfering with witnesses is a compelling reason to deny the accused bail and therefore reasonable and justifiable limitation of the right to liberty in an open democratic society.

Constitutional Law - right to be released on bond or bail - Constitutional limitation of right to bail - Article 49(1) (h) of the Constitution of Kenya, 2010

Words and Phrases - the meaning of the term 'compelling reasons'- duty of court to define jural words, terms and phrases used in the Constitution – Constitution of Kenya, 2010 Article 49 (1) (h).  Read More...

Article 49(1) (h) of Constitution of Kenya 2010:-

An arrested person has the right-

(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

Held:

1. The constitutional right of the accused to be released on bond is not absolute. It has been limited by the Constitution itself in two respects. One, the release on bond or bail is on conditions, albeit reasonable. Second, the accused will not be released on bond or bail where there are compelling reasons. The court however should determine the conditions of bond or bail or if the reasons adduced are compelling reasons to deny the accused bond or bail in the sense of Article 49(1) (h) of the Constitution of Kenya, 2010.

2. In a constitutional transition where the law is still settling, courts are continually engaged in interpretation sessions aimed at defining the scope of the jural words, terms and phrases used in the Constitution; which is an exercise that the courts should strive to do with wise circumspection in order that the meaning and scope assigned to those words, terms and phrases give effect to the objects, purposes and values of the Constitution.

3. Under Article 49(1) (h) of the Constitution, the phrase compelling reasons denotes reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set in the Constitution.

4. The high standard under Article 49(1) (h) of the Constitution is more in accord with the stringent constitutional requirements in Article 24 of the Constitution on Limitation of rights and fundamental freedoms; and requires the prosecution to prove that it is proportionate and justified in the circumstances of the case to deny the accused bail.

5. Under Article 49(1) (h) of the Constitution, interference with witnesses as a compelling reason does not necessarily require strict medical proof of assault since the court is not determining a criminal charge of assault as in a criminal trial.

6. Evidence that the accused accosted a witness in the case where the accused is facing charges, whether physically or otherwise, suffices to prove that the accused did act(s) tending or intended to interfere with witnesses. The court is then if not bound, to infer that the intention of the accused in accosting the witness had been to dissuade the witness from giving evidence. Threats or improper approaches to witnesses although not visibly manifest, as long as they are aimed at influencing or compromising or terrifying a witness either not to give evidence, or to give schewed evidence, amounts to interference with witnesses and is an impediment to or perversion of the course of justice.

7. Interference with witnesses may occur immediately on commission of the offence, during investigations, at inception of the criminal charge in court or during the trial; and can be committed by any person including the accused, witnesses or other persons. Interference with witnesses aimed at impeding or perverting the course of justice, is a justifiable reason to limit the right to liberty of the accused.

The fourth accused person denied bail.

Compiled by Dorcas Onam Mac'Andere

Constitutional law-right to vote under Article 38 of the Constitution-jurisdiction of High Court under Article 165 of the Constitution-proper interpretation of section 19 of Sixth Schedule of the Constitution--Constitution of Kenya, 2010

Co-operative Societies-proper construction of section 76-matters relating to the business of a co-operative society to be adjudicated by the Co-operative Tribunal-Section 76 of the Co-operative Societies Act

ISSUE

1. Whether the High Court has jurisdiction to hear matters pertaining to a co-operative society.

HELD

1. Not all grievances under the Cooperative Societies Act are disputes within the jurisdiction of the Tribunal. The court should therefore carefully consider the claims before it to determine whether they amount to a dispute concerning the business of the society in the sense of section 76(1) and (2) of the Co-operative Societies Act.

2. The fact that the High Court is the final court in cooperative societies' matters, only reinforces the need for the court to ensure that a proper analysis is done to determine whether a dispute is one that falls within the jurisdiction of the Tribunal in order to avoid prejudice of the right of access to justice under the Constitution, but not a bar for the High Court to determine matters falling outside the ambit of the Tribunal. 

3. Section 76(2) of the Co-operative Societies Act should be construed ejusdem generis , and as far as possible, include only matters of the same kinds, class, or nature, as to restrict it within the overall objective of the Act, especially because section 76(2) is on ouster of the jurisdiction of the High Court.

4. Grievances relating to; elections, illegal holding of office, failure to convene a general meeting by the management committee, or special general meeting by the Commissioner for Cooperatives are not akin to the powers of the Tribunal under section 76, 77 and 80 of the Act. 

5. The Co-operative Tribunal does not have jurisdiction to issue a judicial review order to compel the Commissioner for Co-operatives to act in accordance with a statutory or legal obligation in relation to elections.

6. Judicial review is a relief under Article 23(3) (f) of the Constitution, and is not confined to the Law Reform Act or Order 53 of the Civil Procedure Rules as neither of the two establishes the remedy of judicial review but provide for the mechanisms which give effect to the relief of judicial review.

7. The correct interpretation of section 19 of the Sixth Schedule of the Constitution, 2010, is that the High Court Practice and Procedure Rules, 2006, will continue to apply in proceedings for enforcement of the Bill of Rights in the Constitution of Kenya, 2010, until the Chief Justice makes the rules anticipated under Article 22(3).The rules however should be read in conformity with the Constitution.  Absence of the rules under Article 22(3) of the Constitution does not foreclose the right to apply for constitutional remedies under the Bill of Rights.

8. Elevating every legal complaint to a constitutional issue would greatly diminished the value of constitutional remedies, but, in my assessment, the allegations in the Petition are not trivial complaints which have merely been inflated in the hope that they will pass for constitutional issues. They are issues which merit a trial by this court; it is the one with jurisdiction to hear and decide constitutional issues under Article 165 of the Constitution.

Preliminary objection disallowed.