Article 8363

6 October 2020 · Carmel Rickard

Bail for arrested government critics and others is becoming an increasingly common legal issue in countries of the Southern African Development Community. But a new decision from Kenya’s high court, written by Judge Joel Ngugi, is a model of how the problem should be approached. He was faced with a magistrate’s decision to approve the continuing detention of government critic Oscar Sudi, against whom no charges, not even so-called ‘holding charges’, had yet been formulated. The magistrate accepted the police argument that continuing his detention would allow the authorities to investigate and formulate exactly what charges they wanted to bring against Sudi. But in his reconsideration of the magistrate’s ruling, Ngugi delved into the Constitution and concluded that there was no way that Sudi’s continued detention was constitutional. Instead, he granted bail, but stipulated conditions that would allow the police to continue their investigation unhindered. The decision is one that should interest judges elsewhere in the region; many other courts could profit from the Ngugi approach, namely to uphold the constitution and protect the rights of the individual while allowing investigations to proceed.

Read judgment

Rude comments are the stuff of politics in Kenya, but they are also likely to stir anger and even violence. That seems to be one of the reasons that Kenya’s National Cohesion and Integration Commission, set up to prevent ethnic conflict, keeps a sharp lookout for remarks that could be regarded as ‘hate speech’.

Most recently, the commission has become involved in the arrest and detention of an MP, Oscar Kipchumba Sudi. He may or not may not have made criticism or remarks that crossed the line – the courts must still consider the question if, indeed, the matter ever gets that far.

But on the strength of whatever he said, the commission arranged that the police would arrest Sudi. When they arrived at his home he was away, but supporters rallied and protested at the planned action against him. When he returned, he voluntarily handed himself over to police.

Public interest

He was kept in prison and the following day a senior local magistrate, at the request of the commission, refused to allow him bail, saying he should be held for a further week or more to allow investigations to be concluded and charges against him to be brought. This was because the ‘public interest’ over-rode Sudi’s right to be released on bail.

Moreover, the magistrate said, Sudi was an MP and there was a commotion at his home when the police tried to arrest him. He is ‘a person of immense influence and the likelihood of him interfering with witnesses is real,’ the magistrate concluded.

In response to this decision, Sudi immediately turned to the high court where Judge Joel Ngugi reconsider the refusal of bail. The crucial question, said the judge, was this: given all the complex issues involved, are there ‘compelling reasons’ to continue holding Sudi for another seven days?

'Undermine'

One issue stands out in any reading of the judgment: the state had brought no charges against Sudi at this point, and was ‘still conducting investigations’ into five possible counts. Sudi had to be detained ‘until the investigations are complete’, said the state, otherwise he could ‘undermine’ them.

Sudi’s first argument was that the constitution stipulates that an arrested person must be charged within 24 hours: keeping someone detained for any longer than without charge is unconstitutional.

The constitution and earlier confirmatory court decisions made clear that, absent so much as a ‘holding charge, any ongoing detention beyond the 24-hour limit, could not be lawful.

Credulity

‘Why should the police arrest a citizen if they do not even have a provisional view of the offence the citizen has committed,’ asked the judge. Given the action that the state has said it hopes to bring against Sudi, it was a stretch of credulity to suggest that any witness would be unduly influenced by him. In addition, the state had not made any effort to show how this might happen.

The state had brought no evidence illustrating how Sudi had threatened to threaten public order if he were released on bail. And in any case, Sudi had undertaken not to make any further comments of the kind that the commission finds ‘insalubrious’ and ‘inciting’.

There were no compelling reasons for Sudi’s pre-charge detention to continue, said the judge. All the concerns raised by the state ‘can be accommodated without the very radical measures sought and granted to the State to hold (him) pre-charge for 11 days’.

Rally

He thus ordered Sudi’s release from custody, on condition he paid bail, not repeat the kind of remark for which he was now being investigated, nor address any public rally. He must also report to a police station if summoned by the investigating officer. Once the investigations are complete and a ‘charging decision made’, the state is free to charge Sudi, said the judge. But meanwhile, he is not to be arrested or detained.

It is a crucial decision and one that the courts in a number of nearby states would do well to study. In Zimbabwe, for example, a number of government critics have been arrested and held without bail over the last months. However, the courts there have taken a completely different approach to release on bail even though that country too has a constitution that sets out similar basic rights.

Further, in Zimbabwe, the courts routinely delay hearings and then delay even further both deciding and announcing decisions in bail matters, often for the most spurious reasons – like that a document hasn’t been signed by someone who has since gone on holiday. The delays appear to be aimed at keeping critics in prison for as long as possible. In Sudi’s matter, by contrast, the timeline for the hearings and deciding of the bail disputes cannot be faulted. Like appeals in criminal matters, the question of bail is of great urgency for those involved, and courts have a duty to make and announce such decisions as soon as possible, an approach that was scrupulously observed in the Sudi case.

Engaged

Among the other jurisdictions that stand in marked contrast to the Ngugi decision is Tanzania. This country has a number of so-called non-bailable offences. These are crimes in connection with which someone may be arrested, but may not so much as even be considered for bail, regardless of how far advanced investigations may be – or even whether they may have begun at all. In many cases an arrested person must languish in prison for years, unable even to ask for bail, while investigations are, or are not, carried out. Critics of the system of ‘unbailable offences’ say that it is a useful government tool to take opponents out of circulation.

The Ngugi decision, by comparison, shows a judge who understands and is fully engaged with the constitution of his country, giving effect to its intentions at the same time as approving bail conditions that take account of the State’s alleged concerns. It is a welcome addition to the jurisprudence on bail and constitutionalism.

Carmel Rickard

About the author

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