Pawi Sylvian Fortune*
"Jails and prisons are designed to break human beings, to convert the population into specimens in a zoo; obedient to our keepers but dangerous to ourselves."[i]
Bail is the release from custody, pending a criminal trial, of an accused person on the promise that money will be paid if he absconds.[ii] Equally, a bond is a legal agreement made by someone accused of a crime often involving guarantors or collateral. The accused promises to follow specific conditions while released from custody; if they break those conditions, they must pay the sum of bail or other sum fixed in the bond.[iii] Bail and bond are provided for under the Bill of Rights as a right to persons accused, pending a charge or trial.[iv] They find their basis in the right to presumption of innocence[v] which provides that an accused person has the right to be presumed innocent until the contrary is proven.
Electronic tagging refers to the use of an electronic device that is fastened to a person who has committed a crime, so that the police know where that person is;[vi] for instance, people serving non-custodial sentences. Electronic tagging is enforced by either placing the tag, which resembles a watch or bracelet, on the wrist or ankle of the person being monitored. The tag uses the global positioning system (GPS) to track the monitored who is restricted to his/her work and home zone.[vii] If the offender or accused attempts to remove the tag, it immediately alarms the police in charge of the monitoring system who are then allowed to take action and may detain the offender.[viii] In jurisdictions such as the United Kingdom and Senegal, electronic monitoring seeks variously to reduce the use of imprisonment, monitor compliance, reduce reoffending and support desistance from crime.[ix]
Is it just for a person accused of a crime to be coerced into detention awaiting trial because the bail amount is unreasonably high? Is it fair for a person convicted of a minor crime to succumb to the poor living conditions in our overcrowded prisons[x] which is worse than the crime for which he is convicted? This article seeks to call for a change in the Kenya's criminal justice system by introducing the electronic tagging technique not only as an alternative to exorbitant bail prices, but also, as a way to decongest the Kenyan prisons by using the technique on people who are convicted of minor offences and as a precondition to the release of people who are in the final stages of their jail terms. Additionally, by the use of GPS, electronic tagging will aid in remedying the vice of absconding trial by accused persons.
The constitution provides that an accused person has the right to be released on bond or bail on reasonable conditions, however, this right can barely be fully actualised and enjoyed due to the monetary constraints facing the Wanjiku(s)[xi] in the society. Due to financial constraints, many accused persons are therefore left without an option but to be detained regardless of how minor the crime is [xii] while some are accused and detained for non-existent cases.[xiii] Oblivious to such financial restrictions, police officers and other judicial officers sometimes do not give bail and bond on reasonable terms,[xiv] disregarding the many persons who are unable to afford cash bail in amounts as low as Ksh. 1,000.[xv]
Despite there being provisions of law expressly stating that the amount of bail should not be excessive and should be fixed with due regard to the circumstances of the case,[xvi] there have been many instances of people moving to court aggrieved by unreasonable bail conditions. In one such case, Judge R. Lagat Korir noted that the fact that the accused person was still in custody despite being granted bail demonstrated that the conditions were excessive.[xvii] Notwithstanding the guidelines on the payment of fines and cash bail given by the Honourable Chief Justice Martha Koome,[xviii] the issue of excessive and unreasonable bail terms has not been dealt with. With the implementation of electronic tagging, the criminal justice system will be more favorable to the Wanjiku who, instead of being detained for the minor crime of loitering, for months awaiting trial with the judiciary being overloaded with cases, will instead be able to continue with their life as the sole provider of their family of twelve while being tracked and monitored within their work and home zone as they await the hearing of their case.
Decisions on whether or not to grant bail should take into account the need to balance the rights of the accused person and the interest of justice. The determination of bail, should therefore aim not to make haste in punishing the accused but to also bear in mind the principle of presumption of innocence which dictates that individuals facing charges should be able to retain their social and professional networks including employment and familial bonds.[xix] In this regard, forceful detention of persons awaiting trial not only goes against the presumption of innocence but also violates the freedom and security of the person which includes the right not to be detained without trial.[xx] Employing the use of electronic tags instead of detention is a way to preserve a person's dignity, in conjunction with other rights still owned by the accused, as an alternative to subjecting them to cruelties such as starvation, poor medical conditions and fights that may lead to death which they are prone to experience in prisons.[xxi] Consequently, this will reduce the congestion in prisons which, according to the prison department, hold double the capacity of the institutions.[xxii]
In conclusion, inaugurating the electronic tagging system to the Kenyan jurisprudence will contribute to improving the management and running of prisons and by extension, the Kenyan criminal justice system. This article is certainly not conclusive but an invitation for further discourse on the matter.
*The author is a second year student at Kabarak Law School and is the editor in charge of the Kabarak Law Review Blog.
[i] Davis Angela Yvonne , An autobiography, Random House, 1974, 42 -< Angela Davis: An Autobiography - PDFDrive.com (archive.org) > on 28 January, 2024.
[ii] Gary Slapper and David Kelly, The English Legal System, Cavendish Publishing (Sixth Edition) 2003, 445-450;Patrick Kiage, Essentials of Criminal Procedure in Kenya, LawAfrica, 2013, 111.
[iii] Bail and Bond Policy Guidelines, National Council on the Administration of Justice, March 2015, 3 -< http://kenyalaw.org/kl/fileadmin/pdfdownloads/Bail_and_Bond_Policy_Guidelines.pdf >- on 27 January 2024.
[iv] Constitution of Kenya (2010), Article 49(1)(h).
[v] This right is provided for in the European Convention on Human Rights, 4 November 1950, ETS 5, Article 6(2); Constitution of Kenya (2010), Article 50(2)(a).
[vi] Cambridge Dictionary, English meaning, electronic tagging, -< ELECTRONIC TAGGING | English meaning - Cambridge Dictionary>- on 28 January 2024.
[vii] House Arrest: A look at Electronic Monitoring Programs, NBC 26, 4 November 2015, 2:03-2:10 -<House Arrest: A look at Electronic Monitoring Programs (youtube.com)> on 27 January 2024.
[viii] House Arrest: A look at Electronic Monitoring Programs, NBC 26, 2015, 1:56-2:02 -< House Arrest: A look at Electronic Monitoring Programs (youtube.com) > on 27 January 2024.
[ix] Hannah Graham and Gill Mclvor, 'Electronic monitoring in the criminal justice system', Iriss,10 October 2017-< https://www.iriss.org.uk/resources/insights/electronic-monitoring-criminal-justice-system >- on 27 January 2024.
[x] Yonina Anglin, 'Prison conditions in Kenya', The Borgen Project, 4 January 2023 -< https://borgenproject.org/prison-conditions-in-kenya/#:~:text=The%20prison%20system%20in%20Kenya,common%20throughout%20prisons%20in%20Kenya >- on 27 January 2023. Anglin analyzes the poor condition of prisons in Kenya.
[xi] Wanjiku is a Swahili name commonly used in Kenya to refer to an ordinary citizen or average person. It represents the common people and is often used to highlight the challenges, aspirations and experiences of individuals who are not part of the elite or ruling class. J Osogo Ambani, 'The Ghai in our constitution' in Humphrey Sipalla and J Osogo Ambani (eds) Furthering constitutions, birthing peace: Liber amicorum Yash Pal Ghai, Strathmore University Press, 2021, 175.
[xii] Law Society of Kenya, 'Unlocking Justice: A Collective Effort to Decongest Prisons and Deliver Legal Aid',Report on Phase 1 Legal awareness week 2023 #FromBarsToJustice, -<https://lsk.or.ke/wp-content/uploads/2023/11/Legal-Awareness-Week-Phase-1-Report-2023.pdf > on 27 January.
[xiii] William Dubi Ikiwo v Republic, criminal appeal no 547 of 2000, judgment of the High Court at Mombasa, 28 August 2001,, [eKLR], para 2.
[xiv] Task Force on Bail and Bond, Meeting with Stakeholders in the Justice Sector, Laico Regency, Nairobi, 26 August 2014; Bail and Bond Policy Guidelines, 11.
[xv] Bail and Bond Policy Guidelines, 12.
[xvi] Criminal Procedure Code, (CAP. 75), Section 123(2).
[xvii] Victor Kiprono Ngeno v Office of the Director of Public Prosecutions, Criminal revision E003 of 2021, Ruling of the High Court at Bomet, 13 May 2021, [eKLR], para 24.
[xviii] Nancy Gitonga, 'Chief Justice Martha Koome gives guidelines on payment of fines, cashbail' People Daily, 28 September 2023 -< https://www.pd.co.ke/news/koome-gives-guidelines-on-payment-of-fines-cash-bail-203639/ > on 28 January 2023.
[xix] Bail and Bond Policy Guidelines, 9.
[xx] Constitution of Kenya (2010) Article 29(b).
[xxi] Anglin, 'Prison conditions in Kenya'.
[xxii] George Murage, 'Congestion takes its toll on prisons after population doubles', The Star, 17 November 2019 -< https://www.the-star.co.ke/news/2019-11-17-congestion-takes-its-toll-on-prisons-after-population-doubles/ >- on 27 January 2024.
