By Jerameel Kevins Owuor Odhiambo
Worth Noting:
- History however denotes something which is interesting. In 2016, Fred Matiangi chided the Judiciary for issuing what he termed as endless anticipatory bails and orders to opposition figures. When he was before the National Assembly Committee on security, Matiangi wondered why the Judiciary was reportedly bending towards protecting the opposition leaders from possible arrests. In his own words:
- If the Inspector General of Police receives an order from the judges, it means, the person prepared to commit a crime then went to court to get an anticipatory order or bail. It is an innovation in the Kenyan judicial system that does not exist anywhere else. The person who obtained the anticipatory order cannot be arrested.
On February 9th 2023, Former Cabinet Secretary Dr. Fred Matiangi alleged that his home in Karen had been surrounded by police officers who had the mission of arresting him. His lawyer, Dunstan Omari, addressed the media on the same. Even Former Prime Minister, Right Honorable Raila Amollo Odinga, visited the scene and addressed the media. He castigated the move which he termed as political witch-hunt. Nonetheless, it is imperative to note that by the time the lawyers of Matiangi were addressing the press, no sight of men in blue was evident.
The following day the Inspector General of Police, the Director of Criminal Investigation as well as enforcement wing of Kenya Revenue Authority noted with terrible exactness that they had no information of police officers seeking to address the former Cabinet Secretary. At this point all and sundry wondered whether Dr. Matiangi decided to seek sympathy by feigning police arresting him. Even if he did that for what purpose? That isn’t the point of study in this article.
With the events unfolding, the former Cabinet Secretary, through his lawyers made an application of anticipatory bail of which he was granted. The former powerful Cabinet Secretary claimed that he had received credible information from the officers of the Kenya Police that they were under express instructions to arbitrary capture and arrest him with a view of arraigning him in court for ulterior political motives. It was thus his argument that he was under imminent threat of arrest by the police and was justifiably apprehensive that his constitutional rights are being violated. ‘The powers of arrest by the respondents and the Kenya Police are being abused and misused to harass, intimidate and oppress the applicant so as to achieve, extraneous political purposes unconnected with upholding the law,’ Matiangi argued.
He further noted that unless the orders were granted, he together with his family members and people close to him will continue living in a saddening state of fear and anxiety as they are not aware of when and how the respondents would pounce on them. Luckily for him he was granted anticipatory bail by the High Court to stop his purported impending arrest.
History however denotes something which is interesting. In 2016, Fred Matiangi chided the Judiciary for issuing what he termed as endless anticipatory bails and orders to opposition figures. When he was before the National Assembly Committee on security, Matiangi wondered why the Judiciary was reportedly bending towards protecting the opposition leaders from possible arrests. In his own words:
If the Inspector General of Police receives an order from the judges, it means, the person prepared to commit a crime then went to court to get an anticipatory order or bail. It is an innovation in the Kenyan judicial system that does not exist anywhere else. The person who obtained the anticipatory order cannot be arrested.
Enough of the saga, what’s the legal position on anticipatory bail in Kenya? By definition anticipatory bail denotes a bail granted to a person in anticipation and apprehending arrest. It is a preventive relief generally speaking. Justice Gikonyo in the case of Paul Ole Kuyana and Another vs Director of Public Prosecution & 2 others rightly pointed out that anticipatory bail is a special relief in criminal cases and the core, character and scope of anticipatory bail may be problematic requiring a careful stitching of the relief. It is imperative to note that there are no specific provisions on anticipatory bail save for the constitutional provisions under the Bill of Rights.
Anticipatory bail as a matter of right can only be issued when there is a serious breach of a citizen’s rights by organs of the state. Accordingly, it is salient that anticipatory bail is aimed at giving remedy for breach of infringement of fundamental constitutional rights in conformity with what the Constitution envisages constitutes protection of fundamental rights and freedom of a citizen. The fear of breach of fundamental right has to demonstrate the breach by acts and facts constituting the alleged breach.
The High Court in the case of Njuguna vs Republic stated as follows on anticipatory bail:
While the right to anticipatory bail or bail pending arrest is not specifically provided for by statute, the same right is envisaged by the Constitution. The right to anticipatory bail has to be called out when there are circumstances of serious breaches of a citizen’s rights by an organ of the state which is supposed to protect them. Judges of the High Court cannot become toothless watchdogs of the Constitution which they have sworn to defend. The Constitution itself has granted wide discretion to the High Court presumably to fill the gaps which the statute left out.
Justice Kiage in ‘Essentials of Criminal Procedure in Kenya’ notes that: ‘when granting anticipatory bail and in recognition that such bail is an unusual, truncation of the investigatory process, the court may impose conditions in the light of the facts of the particular case, as it may think fit, including: a condition that the person shall make himself available for interrogation by the police officer as and when required; a condition that the person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; a condition that the person shall not leave jurisdiction without the prior permission of the court.’
In a nutshell, in the words of Newton Arori ‘to succeed in an application for anticipatory bail, you must clearly show by disclosing special facts and events an anticipated breach of fundamental constitutional rights. The fear of breach to rights must be real and demonstrable. Anticipatory bail will not issue where an applicant labours under apprehension founded on rumours and unsubstantiated.’
Jerameel Kevins Owuor Odhiambo is a law student at University of Nairobi, Parklands Campus.
