MWANGI: Anticipatory bail is alien to our laws - Daily Nation

Anticipatory bail is alien to our laws

Wednesday July 11 2018

Court of Appeal Kenya

Release on bail is a right enjoyed by an accused person. FILE PHOTO | NATION MEDIA GROUP 

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On May 25, amid reports of huge losses of public funds through corrupt deals at the National Youth Service (NYS) and the ensuing investigations led by the Directorate of Criminal Investigations, Justice Grace Macharia delivered a significant ruling.

She ruled that an application did not meet the threshold for grant of anticipatory bail and urged the applicant to await until he was required to record a statement or summoned to assist with investigations.

The significance of the ruling is that there was absolutely no reason to grant anticipatory bail before the applicant recorded a statement as a suspect.

Again, the police had every right to undertake investigations freely without what would have appeared to be an intrusive intervention by the court.

Anticipatory bail is unknown both to our Constitution and the Criminal Procedure Code (CPC).


In the Constitution (Rights of arrested persons) and the CPC, bail is for arrested and accused persons, not those anticipating to be arrested or accused of a crime.

Also, police have power, under the National Police Service Act, among others, to release suspects and accused persons on bail or bond to attend court if and when required to do so.

Obviously, the framers of the Constitution and the criminal law did not find it prudent to provide for a ‘speculative’ right in the name and style of anticipatory bail.

In 2015, the Judiciary formulated the comprehensive ‘Bail and Bond Policy Guidelines’ specifically ‘to guide police and judicial officers in the application of laws that provide for bail and bond.

It provides that ‘The High Court may grant anticipatory bail, that is, bail pending arrest, provided the applicant demonstrates that his or her right to liberty is likely to be compromised or breached unlawfully by an organ of the State that is supposed to protect this right.

Further, the applicant must demonstrate that the apprehension of arrest is real and not imagined or speculative’.


Suffice it to say that this guideline has no force of law and cannot of itself be deemed to be the substantive law on the matter — save merely as a rule of practice.

It is wanting in three ways: First, it makes the assumption that any person of possible interest to, and summoned to assist in, an investigation is wont to be treated as a suspect or an accused and automatically be denied their right to bail.

The assumption casts aspersions on the investigators’ competence to objectively and impartially investigate cases without infringing on the bail or bond rights of persons involved in such investigations.

Secondly, it emasculates the powers of the police to freely undertake investigations without apparent interference from the Judiciary, particularly when applications for anticipatory bail are heard and granted ex parte. Thirdly, it is tantamount to deciding against the police unheard.

Criminal investigation, especially of major and complex cases, is a painstaking and engaging process meant to systematically reconstruct a criminal occurrence by gathering evidence for identifying, arresting, charging and eventually prosecuting suspected offenders as well as absolving the blameless.


Investigators need to interact with potential witnesses and would-be suspects to inform the process.

The process is lawful and necessary; hence, the innocent have nothing to fear. And as long as investigators operate within the confines of the law, they should be allowed the space to do their job undisrupted.

Unfortunately, anticipatory bail is a recourse sought by potential suspects and would-be accused to frustrate major criminal investigations for their own selfish interests as opposed to the public interest investigations seek to satisfy.

Besides, beneficiaries of anticipatory bail orders avoid to cooperate with investigators despite having been expressly ordered by court to do so.

The consequences are missed investigative interviews, (in) direct interference with or intimidation of potential witnesses, destruction or falsifying of material evidence and stalled investigation.


Worse, the beneficiaries return to court seeking outright prohibitory orders not to be investigated at all and some get their prayers granted.

Finally, even in jurisdictions where anticipatory bail is anchored in law, say, Section 438 of Criminal Procedure Code in India, the court should hear representation from the Public Prosecutor before an order to grant bail or not is made.

Justice Momanyi Bwonwong’a, in Procedures in Criminal Law in Kenya (1994), observes that “the fact that a person is charged with a bailable offence does not mean that one is automatically entitled to be released on bail.

The constitutional right to be released on bail is subject to the rights and freedoms of the public.


Indeed, despite legal arguments, engaging in grand corruption involving public funds is offensive to public good — thus within the rights of ‘Wanjiku’ to expect uncontested curtailment of the freedom of alleged perpetrator(s) for thorough interrogation.

Further, it is sheer speculation to seek anticipatory bail before facing investigators to know why one has been summoned, ostensibly fearing arrest or being denied release on bail. Speculation should never, as a rule of thumb, inform any judicial process.

Mr Mwangi is a law enforcement and security management consultant. [email protected]