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Legal And Policy Dilemma In The Fight Against Terrorism: The Bail Question In Terrorism Cases In Kenya


Elisha Zebedee Ongoyaå


Topics such as bail jurisprudence particularly in terrorism cases more often that not conjure up emotions of security concerns about the “bad guy that must kept off the streets”. Most often, we tend to forget about the cardinal principle of the presumption of innocence in criminal justice.

The world today faces many challenges. Such challenges with a worldwide reach are aptly referred to as global challenges. Sometimes, the community of nations, through established structures, comes together to prescribe normative and policy framework geared towards, solving, containing or generally dealing with such global challenges. The greater challenge, however, is that such broad frameworks leave it to individual nations to come up with boundary specific measures that accord to the broad prescriptions to deal with the problems/challenges.

One of the challenges that is widely accepted as a global challenge is the problem of terrorism. Terrorism is currently a crime without borders. It would definitely fit into the definition of organized crime, however prescribed. Its reach is global. However, the execution of the ills of terrorism is boundary specific. Kenya has played host to various heart rending episodes of acts of terrorism.

The closest that Kenya’s legal system has come in definition of terrorism is to be derived from the Prevention of Terrorism Act, 2012 where the term “terrorist act” is defined to mean:

“an act or threat of action—

å Advocate of the High Court of Kenya (Ongoya & Wambola Advocates), Lecturer and Head of Department of Public Law

(Kabarak University), and, adjunct lecturer of Civil Litigation (Kenya School of Law).

1 Samuel Kwesi Amoo, The Bail Jurisprudence of Ghana, Namibia, South Africa and Zambia, Forum on Public Policy

(a) which—

(i) involves the use of violence against a person;

(ii) endangers the life of a person, other than the person committing the action;

(iii) creates a serious risk to the health or safety of the public or a section of the public;

(iv) results in serious damage to property;

(v) involves the use of firearms or explosives;

(vi) involves the release of any dangerous, hazardous, toxic or radioactive substance or microbial or other biological agent or toxin into the environment;

(vii) interferes with an electronic system resulting in the disruption of the provision of communication, financial, transport or other essential services;

(viii)  interferes  or  disrupts  the  provision  of  essential  or  emergency services;

(ix) prejudices national security or public safety; and

(b) which is carried out with the aim of—

(i) intimidating or causing fear amongst members of the public or a section of the public; or

(ii) intimidating or compelling the Government or international organization to do, or refrain from any act; or

(iii)  destabilizing  the  religious,  political,  Constitutional,  economic  or social institutions of a country, or an international organization:

The statute, however, makes a proviso to the definition of terrorism in that an act which disrupts any services and is committed in pursuance of a protest, demonstration or stoppage of work shall be deemed not to be a terrorist act within the meaning of this definition so long as the act is not intended to result in any harm referred to in paragraph (a)(i) to (iv);

It is a truism that if the events of the recent past are anything to go by, the state of Kenya currently faces a security challenge probably never experienced before. Security apparatus in the institutional framework of the Republic of Kenya are now required to interrogate the existing paradigms of dealing with the security situation and forge new paradigms. Unfortunately, threats to security do not give room to these apparatus to conceptually design the paradigm shift, test it before they strike. The greatest of these security threats has been the global problems of terrorism.

One of the proposals, whose origin is the executive arm of government, has been to urge the judiciary to not to grant bail to terrorism suspects. Whereas the executive has made this proposal in the form of roadside declarations, there  has  been  no  corresponding  policy  and legal guidelines to direct the judiciary on how to implement these declarations.

At one remove, these declarations directed at the decisional powers of the judiciary bring to the fore the theoretical considerations of the independence of the judiciary and separation of power vis a vis the practical notions of interdependence between the various organs of the state in Kenya.

As one scholar has observed, security concerns traditionally come under the jurisdiction of both the Legislature and Executive but the determination of bail application forms part of the due process of the law which belongs to the domain of the Judiciary. The question as to which organ of state has the final say in bail applications is a question of choices. Bail jurisprudence involves the balancing of the values relating to the rights of the individual and the security of  the  state;  it  involves  the  balancing  of  the  dictates  of  positivism  and rationality and how these choices impact on the individual and the society; it is

a cultural phenomenon since the values of the society dictate the content of bail jurisprudence

In this paper, we seek to interrogate the rationale discernible from these executive declarations on whether or not suspects in terrorism cases ought, by the very nature of their alleged offences, be denied bail pending trials. We shall then interrogate the legal and policy tenability of these executive declarations. We shall then examine the practical impact that these declarations have had on the judiciary in the recent decisions relating to applications for bail/bond.

The Law on Bail and Bond in Kenya

The question of bail/bond like many questions under the contemporary transformative constitution of the Republic of Kenya, is a constitutional question. Article 49(1)(h) of the Constitution of the Republic of Kenya provides that:

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.

Dearth of Legislative Guidelines on Bail/Bond in Kenya today.

With the foregoing wide latitude of discretion left in its hands, the judiciary has lamented the lack of detailed legislative  guidelines on the question of grant of bail particularly at the pre-trial stage where, in principle, the suspect/accused person is presumed innocent.

In Aboud Rogo Mohammed & Another Vs Republic, Nairobi High Court Criminal Case Number 793 of 2010 Justice Ochieng went on record thus: Meanwhile, the court has to bear in mind the fact that;

“Unfortunately, in Kenya, there are no legislative guidelines on bail. The court is left with an unfettered discretion to determine the issue.”

Those were the words of Sergon J. in the case of REPUBLIC Vs OBY TYLENE OYUGI & 11 OTHERS (NYERI) H.C. CR. CASE NO. 38 of 2010.

In  Hassan  Mahat  Omar  &  Another  Vs  Republic,  Nairobi  High  Court Criminal Revision No. 31 of 2013, Lady Justice L.A Achode rendered herself thus:

What amounts to compelling reasons as envisaged in Article 49(1) (h) of the Constitution is a matter of judicial discretion. Kenya does not have statutory guidelines to govern the granting of bail. However,  a  glimpse  at  pertinent  laws  of  other  common  law countries such as the Bail Act of England and Section 60(4) of the Criminal Procedure Code of South Africa, gives us examples of issues to consider in determining whether or not compelling reasons exist in a given case.

Judicial Decisions on bail and bond in terrorism cases in Kenya Courts in Kenya have had occasion to render themselves on applications for bail in cases involving terrorism related charges.

It is evident from the sampled cased that court’s in Kenya have suffer serious difficulties in evolving a coherent jurisprudence on guidelines that will fill the gap of a lack of legislative guidelines on determining “compelling reasons” warranting deprivation of bail.

In  Hassan  Mahat  Omar  &  Another  Vs  Republic,  Nairobi  High  Court Criminal Revision No. 31 of 2013, where the applicants, a husband and wife were accused of being in possession of grenades allegedly recovered from their house, the trial magistrate had conducted a pre-trial hearing on an application for bail. She rejected all the grounds raised by the prosecution on why the

accused  person  were  undeserving  of  bail.  She  then  proceeded  to  address herself to what she defined as a public interest issue, that is, whether the public  confidence  in  the  judiciary  would  wane  if  the  two  suspects  were admitted  to  bail.  Having  answered  this  question  in  the  affirmative,  she proceeded to deny the accused persons bail hence the revision cause. Confronted with these state of affairs, the court held thus:

28. I have considered the applicant’s antecedents, and find that the fact that the second applicant has never come into conflict with the law speaks in her favour in this application, unlike the first applicant who has been arrested and charged before on what Mr. Ongoya referred to as “terrorism related wrongs”. It is however noted that he was acquitted of the said charge.

29. I have also considered the nature of the charges, and the gravity of the punishment in the event of conviction. Ordinarily, where the charges against the accused person are serious and the punishment prescribed is heavy, there is more probability and incentive to abscond, whereas there may be no such incentive in cases of minor offences. (See Republic v. Ahmad Abolafathi Mohammad & Another, High Court Criminal Revision No. 373 of 2012). The nature of the charge herein is grave and the punishment in the event of conviction is 20 years.

The first applicant’s previous charge in CM Cr. Case No. 2787 of 2012

was minor in nature as compared to the present charge.

30. Attempts by the applicants to liken this case to other terrorism cases where accuseds were admitted to bail, or the respondent to liken it to cases where suspects in terrorism-related cases who were admitted to bail failed to avail themselves at the trial, were not helpful.The applicants cannot be punished for the misdeeds of other suspects who have skipped bail,  no  more  than  they  can  be  granted  bail  merely  because  other suspects in terrorism cases were granted bail. Each case must be determined on its own circumstances.

31. The learned trial magistrate was quite in order to take judicial notice of the prevailing pertinent circumstances in the country to inform her decision. Indeed, the court does not operate in a vacuum and serves the interests of justice which are intended to safeguard the interests of the public.

32. For the foregoing reasons, I find that the interests of justice will be best served by denying bail with regard to the first applicant and allowing it with regard to the second applicant.

33. The 2nd applicant is therefore granted bond of Kshs. one million

shillings with one surety of like.

It is apparent that the court in declining bail to the first applicant was influenced by the fact that he had been previously charged with a terrorism related offence for which he was acquitted. The puzzle remains this, how can a case in respect of which a suspect was acquitted, found not guilty, be used against him? The court did not jurisprudentially expound on this.

Worth of note is the court’s defining finding that

“The learned trial magistrate was quite in order to take judicial notice of the prevailing pertinent circumstances in the country to inform her decision. Indeed, the court does not operate in a vacuum and serves the interests of justice which are intended to safeguard the interests of the public”

In this observation lies a principle that the general security situation out there was so volatile that weighing all factors, the ends of justice would be better served by keeping the suspects in custody pending trial.

In Abdikadir Aden Alias Tullu & Others Vs Republic, Meru High Court Criminal Application No. 16 of 2014, Lessit J delivered her considered ruling thus:

12. I have considered the rulings of the learned trial magistrate in which bail was denied to the Applicants. I am impressed by the learned trial magistrate’s considerations and the manner in which heweighed all the factors and interests affecting the case.

13. In my reading of the rulings the reasons given why the Applicants

were denied bail are:

a. Incidents of terrorist’s acts are common to the point of being

alarming in the country.

b. The security situation in the country and it’s against public interest to have the accused persons being released on bond.

14. I noted that the fourth person charged along with the Applicants was granted bail. That was after an attempt by the state to withdraw the charges against that accused was declined.

15. The bottom line is the Applicants are charged with an offence of possessing Articles connected with a terrorism offence in that the Articles they had were for the use in instigating the commission of terrorist acts. Without appearing to belittle or trivialize the alleged offences, I note that what the Applicants are alleged to have been found with are audio and visual material which could be used to investigate terrorist acts. They are in a foreign language. An appeal by the Applicants counsel to know whether  there  has  been  an  interpretation  of  the  Articles  into  the language of the court went unanswered.

16. In other words the audio and visual material the Applicants are alleged to have been in possession of are material to be use to influence people ideologically, to commit terrorist acts. The actual content and how appealing it is will be demonstrated at the hearing of this case. There is also likelihood that as of the moment, even the prosecution is unaware of the actual content of the articles and the impact or effect they may have on those coming across the same. This is more than just speculation. It means that the Applicants are being held in custody on speculations.

17. Article 19 (3) (a) of the Constitution makes it abundantly clear that the rights and fundamental freedoms in the Bill of Rights belong to each individual and they are for each individual to enjoy. The limitations upon which these rights and freedoms are subject to are spelt out under Article 49(1) (h) of the Constitution, which in short if “unless there are compelling reasons to decline bail”.

18.  The  burden  lies  with  the  prosecution  to  establish  what  the compelling  reasons  are.  All  the  prosecution  has  said  is  that  the

Applicants face terrorism connected charges. The word “terrorism” doubtless invokes fear or even terror. However, the prosecution should be able to demonstrate what exactly it is that constitutes the compelling reason. There must be some cogent or tangible basis for alleging so. In this case, nothing cogent or tangible has been demonstrated or placed before the court.

For that reason alone, I find there is no compelling reason demonstrated to deny the Applicants bail.

19. In the result I do grant the Applicants bail in the following terms:

1. Each Applicant may be released on a bond of Kshs. 500,000/- and with two sureties of Kshs. 500,000/- each.

2. Alternatively each Applicant may deposit cash bail in the sum of

Kshs. 1 million.

20. The Applicants Notice of Motion application dated 21st May, 2014 is

granted as herein above.

In Aboud Rogo Mohammed & Another Vs Republic, Nairobi High Court

Criminal Case Number 793 of 2010 Fred Ochieng J rendered himself thus:

For now, although the assertions of the state, that the applicants’ had some connection with the suicide bomber are not baseless, the court is obliged, by Article 50 (2) (a), to uphold the legal presumption, that the applicants were innocent until the contrary was proved.

Therefore, because of the said legal presumption, it is not open to me to conclude, without the benefit of evidence, that the applicants had already been connected to Al-Shabaab. If I were to so conclude, the said conclusion would be inconsistent with the presumption of innocence.

And if the legal presumption was to have tangible meaning, at this stage, I must interpret the Constitution in such a manner as to enhance the rights and freedoms granted, rather than in a manner that curtails the said right.

In the result, I find that the respondent has not demonstrated any compelling reasons to warrant the denial of bail to the applicants herein. I do therefore allow the application.

However, the applicants will be required to strictly comply with the following conditions if they are to be released on bail pending trial, and if they are to continue enjoying freedom until their trial is concluded;

(a) Each Applicant shall sign a Bond for KShs.3,000,000/-

(b) Each Applicant shall provide two sureties for KShs.3,000,000/- each

(c) Each Applicant shall report to the OCS in-charge of the Police Station nearest his residence, every Tuesday. For the avoidance of any doubt, the 1st Applicant is deemed to be resident at Kanamai, in Kilifi, whilst the 2nd Applicant is deemed to be resident at Saba Saba Estate, Mombasa

One will note that both the decisions by Lesiit and Ochieng JJ on the one hand, and, Achode on the other, were rendered when the security situation in Kenya on matters terrorism was, by and large, the same. The question then is, whether, the discretionary element in the interpretation of compelling reasons is too wide to be left to judicial decision making.

In lieu of Conclusion Some suggested middle ground

A case for a bail/bond court in terrorism cases – This proposal is such that in terrorism cases, there be a bail/bond court separate from the actual trial court.

Such court should have access to detailed material that the prosecution may have against the accused person. This would give the court firm foundation for determining the bail question. Such court should be separate and distinct from the trial court to prevent perception of prejudice.

Whatever the suggested reform initiatives, focus must be on the bottom line where constitutionalism and the rule of law are elevated, and, arbitrariness is dethroned.

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