By: MR.

KERIAKO TOBIKO CBS, SC

DIRECTOR OF PUBLIC PROSECUTIONS, KENYA

AT
THE CHIEF JUSTICES GARDEN AT THE SUPREME COURT
BUILDING

LAUNCH OF THE BAIL/BOND POLICY

[20TH MARCH, 2015]

The Honorable the DCJ;

Distinguished guests;
Ladies and Gentlemen;
All protocol observed.
1.On behalf of the ODPP, I am honored to have been
invited to participate in the development of the Bail
and Bond Policy Guidelines. And also to attend their
formal launch today.
2.I thank the CJ, DCJ and the entire judiciary for
initiating and spearheading the process that has led
to the development of the Guidelines.
3.I also commend Lady Justice Achode, the Chairperson
and all the other members of the Taskforce for being
able to deliver on this crucial assignment within very
strict

timelines

and

for

producing

very

comprehensive and high quality document.

Ladies and Gentlemen,
4.Under our Constitution, a person charged with a
criminal offence is presumed innocent until proven
2

guilty. Flowing from this presumption of innocence,

the Constitution requires that a person charged with
a criminal offence shall be released on bail/bond on
reasonable terms unless there exist compelling
reasons for denying bail.
5.Unlike in the old Constitution, under the current
Constitution, all offences including capital offences
such as murder, treason, and robbery with violence
are bailable.
6.The challenge however has been (and still is) that
the Constitution does not stipulate what constitutes
compelling reasons.
7.Therefore, what amounts to compelling reasons
has been left entirely to the discretion of the trial
judge/magistrate.
8.This unchecked discretion has often times resulted in
unpredictable,

conflicting

and

contradictory

decisions from the courts.

9.Furthermore, it has led to a blame game between the
investigators, prosecutors and the judiciary. On the
one hand, investigators/prosecutors blame judges
3

and magistrates for being too lenient and too

generous in granting bail to those persons charged
even

with the most serious

offences

such

as

murder, terrorism, drugs and sexual violence.

10.

On their part, judges and magistrates blame

investigators/prosecutors for simply not doing their

job, and for failing to demonstrate compelling
reasons why bail should be denied.
11.

Happily, the Guidelines being launched today, do

set out to a large extent what would constitute

compelling reasons.
12.

Therefore, investigators and prosecutors know

what they are required to prove if they are to

succeed in opposing bail. There should therefore be
no excuse on their part for not providing the required
material

and

justification

in

opposing

bail.

Prosecutors cannot and should not be expected

simply to stand up and say I oppose bail and
expect the court to agree with them. They must bring
themselves

within

the

requirements

of

the

Guidelines. On this, I therefore call prosecutors to up

their game as they no longer have excuses for not

doing their job.
13.

On the other hand, judges and magistrates will

no longer exercise their discretion in a manner that is

or may appear to be capricious and unreasonable.
What constitutes compelling reasons shall no longer
depend on the size of the shoe of the particular
judge or magistrate. Judges and magistrates
when making their bail/bond decisions must know
that their decisions will be tested in the higher courts
and in the court of public opinion on whether they
are reasonable, justified and consistent with the
Bail/Bond Policy Guidelines.
Ladies and Gentlemen,
14.

We have been told repeatedly that the aim of

bail/bond is to ensure that an accused person does

not abscond trial. Whilst this is no doubt a very
important consideration, it cannot be the only
consideration. There are other equally important and
competing considerations for example:
The safety and security of the witnesses;
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 The potential of the accused person to interfere

with investigations and witnesses;
The views and the interests of the victims of
crime;
The likelihood of the accused committing other
crimes;
The safety and security of the accused persons
themselves; and
The question of national and public safety and
security.
15.

These are all factors that must be balanced as

against the accused persons right to be released on

bail.
16.

In other words, the right to bail, constitutional as

no doubt it is, is not absolute; is not unqualified.

That right must be balance as against the other
rights; the rights of the victim and of the wider
public.

17.

I am happy to note that these Guidelines do

provide guidance on how to strike this delicate

balance.
18.

Am particularly impressed that the Guidelines do

recognize the participation of victims of crime in the

bail/bond processes and also give special recognition
to the unique circumstances of the vulnerable parties
in the criminal process.
Ladies and Gentlemen,
19.

In conclusion, it is important that following

todays launch, these Guidelines be widely circulated

to the public and that all criminal justice sector
agencies, players and stakeholders be sensitized
about them.
20.

It may also be important to consider whether the

CJ or the Rules Committee should formally gazette

these Guidelines in order to give them the requisite
statutory anchorage.
21.

On my part, I wish to affirm our commitment as

ODPP to working closely with all the other agencies

and stakeholders in the criminal justice system in
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ensuring that the Bail/Bond Policy Guidelines are fully

implemented.
22.

I thank you.

KERIAKO TOBIKO CBS, SC

DIRECTOR OF PUBLIC PROSECUTIONS

20th March, 2015