How to process police Bail or Bond in a Police Station

Bail and Bond in the Police Station

 At the Police Station, a suspect may be released on cash bail, with or without sureties, or personal (free) bond or recognizance. The Police Force Standing Orders require the officer in charge of a police station to release any person arrested on a minor charge on the security of cash bail, as a general rule, unless the officer has good grounds for believing that the arrested person will not attend court when required to do so. This cash bail should be handed into court by the date on which the arrested person should appear in court, and a receipt obtained. In case a person who has been released on bail fails to appear in court, the officer in charge of the police station should apply to the magistrate for a warrant of arrest. At this point, the magistrate may either order the cash bail to be forfeited (if it is demonstrated that there are sufficient grounds that justify an order for forfeiture), or retained on court deposit until
such time as the accused person appears. It should be noted that the Police Standing Orders are categorical that a person who is released from custody on either bail or bond can only be required to appear before a magistrate on a specified date, and that “Under no circumstances will a prisoner who is released on bond be required to appear at a police station or other place.” Where the accused person violates bail or bond terms, the police should cancel the bail or bond, re-arrest him or her, bring him or her to the police station, and take him or her to court.

Situational Analysis

In practice, police decision-making on bail and bond can be unpredictable:

(a) First, police officers sometimes do not give bail and bond on reasonable terms. In some cases, police officers deny accused persons bail as a form of punishment. Further, police officers do not usually explain their bail and bond decisions.

(b) Second, police officers only grant bail and bond to persons accused of minor offences, and leave bail decision making in serious offences to the courts. In the latter case, the accused person should be produced in court within 24 hours of arrest. Accordingly, a person accused of serious offences such as murder or robbery with violence is likely to be detained in a police cell, and can only be released on bail once produced before court.

(c) Third, police officers tend to detain persons who have committed petty offences, contrary to Article 49(2) of the Constitution. Included in this category are persons accused of committing offences such as loitering, creating a disturbance, being drunk and disorderly, and possessing illicit liquor. Even more disturbing, some police officers have detained persons accused of committing offences that are not known to law, contrary to section 50(n) of the Constitution, which gives an accused person the right not to be convicted for an act or omission that was not an offence under the law at the time of the commission or omission. A typical example is
the offence of “city planning” in respect of which several persons have been arrested and detained at the Kamukunji Police Station in Nairobi.

(d) Fourth, many accused persons are unable to afford cash bail in amounts as low as Kshs. 1000 due to poverty. Such persons are therefore detained in police custody.

(e) Fifth, police officers typically do not inform accused persons that they have a right to be released on bail and in some cases even extort bribes from them.

(f) Sixth, because the public does not understand bail, it sometimes sees the payment of cash bail as a bribe or payment of a fine, and consequently perceives police officers as corrupt and at the same time lynches accused persons released on bail. Indeed, police officers often detain some accused persons for their own protection, on the basis that they might be lynched if released on bail.

The administration of bail and bond in traffic offences presents special challenges. Decision making here seems arbitrary, and the amount of bail is left to the discretion of the Divisional Traffic Officer. Further, while the police are concerned that there is a high rate of absconding (that is, failing to attend court after paying cash bail), the public find the process of complying with the requirement to attend court unduly punitive, particularly where the offences are committed in locations where they do not reside. This is the case, for example, where an offender is caught over-speeding in Naivasha on a Sunday whilst heading to Kisumu where he or she resides. Typically, the police would require such a person to appear before a Naivasha court the following day. Court case backlogs and lengthy trial procedures have also given police officers and traffic offenders an incentive to solicit and pay bribes respectively. In such instances, police officers withdraw the charges upon the offenders giving them the amount, or part, of the cash bail.

Source: KLRC