Many of us ask ourselves this question especially lately when we keep seeing it on the media. Crime is on the rise. Suspects are arrested and before long, they are out in the public already. Some light on why and how things happen that way can help, right?
The criminal procedure begins by an affected person (complainant) lodging a report at the nearest police station. The report is entered in an Occurrence Book (OB), an OB number is generated and issued to the complainant. Once this is done, the Officer Commanding Station (OCS) allocates the complaint to a specific officer (investigating officer) who will be in charge of the same.
Upon allocation, the investigating officer is required to investigate the complaint. This involves questioning the complainant and their witnesses, visiting the scene of crime, piecing up evidence, identifying and tracing up suspects, arresting them and questioning them.
Once the investigation is over, a file is compiled and presented to the office of the public prosecutor (DPP). Once the prosecutor’s office verifies that there is a triable case, the arrested suspect is presented to court and trial begins. It is at the trial that the court will determine whether the arrested suspect, now called accused, is guilty or not.
The general principles of law dictate that an accused person is innocent until proven guilty. This is a right envisaged under article 50 (2(a). They are therefore entitled to some rights pending such determination of guilt or innocence. We all hear of the Bill of Rights contained in Chapter 4 of the Constitution of Kenya 2010, they include the rights of an accused person. These rights are diverse but the one in question today is the right to freedom, article 29 (a) and (b) and article 50 (2(e).
Since the accused person is innocent until proven guilty, they need to still enjoy their right to freedom. The question is how? We have what we call bail and bond. Bail is in cash form while bond is any form of property that is issued in exchange for the release of an accused person/suspect pending further investigation, presentation in court or determination of the court case. The bail and bond are used to secure the attendance of the accused/suspect.
Taking a step back, when the police are investigating the complaint, the suspect might be arrested either at conclusion of the investigation or as the investigations continue. At this point, depending on the circumstances, the suspect can be released on police bail pending investigation and presentation in court. The amount depends on the nature of the offence. This is one explanation for the prompt/fast release of a suspect or alleged offender.
Once the accused is presented in court, they are entitled to a refund of the police bail and the court now sets new bail and bond terms. The court now takes custody of the accused by placing them in a remand station. Once the accused meets either the bond or bail terms set by court, they are released to continue attending court proceedings from outside custody. The accused will be re-arrested and sentenced upon being found guilty. This is the second explanation to the prompt release of an accused person soon after being presented in court.
With the above, it easy to be deceived that the offender has been released so soon before justice is achieved. However, we hope that it is now understood why and how the release takes place. It is worth noting that, where the accused person fails to attend court without any reasonable explanation, the bail or bond deposited is normally forfeited to the court and the accused is re-arrested. Where the accused faithfully attends court to the end, the bail or bond is refunded upon being sentenced or found innocent. Our next article will give more details on bail and bond.
By Praxedes Kageha, praxcy@mmsadvocates.co.ke