Can you explain why someone can stay in prison for a long time without being sentenced? My brother has been in a remand home and prison in Nairobi for the past two years because of a robbery with violence charge. Is this system really fair? We feel lost and need more information.
This dialogue will speak to Kenya’s criminal justice system, because of the difficulty of providing specifics without specific case details. The fundamental and most progressive principle in any court matter is the commitment to achieving justice for the accused, the accuser, and, by extension, the community, as emphasised by Article 48 of the Kenyan Constitution.
When an individual is arrested, they are typically taken to a police station and detained in a police cell. It is essential that every person, regardless of their identity, is afforded the protections guaranteed by Article 27, Clause (1), which mandates equal application of the law.
Consequently, all individuals should benefit from the rights articulated in Articles 49 and 50, which pertain to the rights of arrested persons and the right to a fair trial, respectively. Fairness is not merely an abstract principle; it is a fundamental tenet that underpins both the pursuit of justice and its preservation within the judicial system.
As a fundamental principle in safeguarding justice and upholding the rights of individuals who have been arrested, Article 49 outlines the essential rights of detainees and the responsibilities of law enforcement personnel, which guide their behaviour towards those suspected of committing crimes against the state.
Clause 1, Paragraph (h), provides the right for these individuals to secure release on bond or bail under reasonable conditions while awaiting charges or trial, except in cases where there are compelling justifications for their detention. The definition of compelling reasons was canvassed R. vs. Joshua Kibet Cheruiyot (2010) case, in which the Court determined that the risk of an accused person jeopardising the case could include actions such as threatening witnesses or obstructing the investigation, in addition to failure to attend court consistently during their trial or tampering with evidence.
From your story, this doesn’t seem to have happened. By inference, it can be assumed that the officer commanding station or the Directorate of Criminal Investigations in charge of the matter applied Clause 2 of Article 49, considering that robbery with violence, as outlined in Section 296 (2) of the Penal Code attracts a death sentence on conviction, noting that such a charge would disqualify anyone faced with such charges including your brother from accessing bail at the point.
While Article 50 safeguards the right to a fair trial, it may be inferred that the Court did not grant the accused person bail or bond, despite this being a constitutional right, as previously mentioned. The Bail and Bond Policy Guidelines (2015) outline the general principles that judges and magistrates follow when such requests are placed before them.
These include the presumption of innocence for the accused until proven guilty, their right to bail or bond while attending trial, and, importantly, balancing the rights of the accused with the interests of justice, among other factors. Robbery with violence is categorised as a serious offence under the Bail and Bond Policy Guidelines. Most criminal courts are cautious about the risk of the accused fleeing or absconding, particularly given the heavy penalties associated with such offences.
Although the motivation for the accused to escape is understandable, it does not negate the reality that the accused may also struggle to meet the surety requirements for bail or bond if granted.
Several factors contribute to the delays in the criminal justice system, yet these factors are essential for proving or disproving allegations. One significant factor is the availability of witnesses for both the defense and the prosecution. The Court must follow the Evidence Act when witnesses are required to clarify the sequence and logic of events. How events are described and connected plays a crucial role in establishing the truth or falsehood of an allegation. If witnesses are unavailable, the process may slow down significantly.
Moreover, certain types of evidence may need corroboration, especially when the Court calls upon expert witnesses, such as handwriting analysts, criminologists, or specialised physicians, to provide supporting information. In some cases, a witness may require protection. In such instances, it is the Court’s responsibility to refer the witness to the Witness Protection Agency (WPA) and to arrange safe methods for collecting their testimony. Administrative factors can also lead to delays.
The transfer of court personnel, such as judges, magistrates, investigating officers, and prosecutors, can hinder case progress. Occasionally, police and prosecution files may be inaccessible, further complicating matters.
