In 2016, the former Cabinet Secretary for Interior, Fred Matiang’i, chided the Judiciary for issuing what he termed as endless anticipatory bails and orders to opposition figures.
Then opposition principals led by Orange Democratic Movement (ODM) party leader, Raila Odinga, were the nemesis of the national government.
Before the National Assembly Committee on Security, Matiang’i wondered why the Judiciary was reportedly bending towards protecting the Opposition leaders from possible arrests.
“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,” Matiang’i wondered.
The former Cabinet Secretary lamented that the national government could not adequately attend to criminal issues since the Judiciary was a stumbling block to the security intervention processes.
“It’s an innovation in the Kenyan Judicial system that does not exist anywhere else. The person who obtained the anticipatory order cannot be arrested.
Matiang’i noted that some opposition leaders deliberately obtained anticipatory bail to shield themselves from glaring criminal acts.
“So, one gets an order then proceeds to commit a crime by, for example, breaking into a Parliamentarian’s house,” Matiang’i chided the Judiciary.
In a rare twist of fate, Matiang’i, on Thursday, February 9, through his Lawyer, Danstan Omari, sought an anticipatory bail from High Court sitting in Nairobi.
“The powers of arrest by the respondents and the Kenya Police are being abused and misused to harass, intimidate and oppress the applicant and his former cabinet colleagues and the former president; and to achieve extraneous political purposes unconnected with upholding the Law,” Omari submitted.
Following Matiangi’s application, High Court Judge Kanyi Kimondo granted the orders after the former Cabinet Secretary claimed he risked arrest.
Judge Kanyi, however, noted that the police were at liberty to investigate Matiang’i on any criminal conduct but would not arrest him.
Law experts define anticipatory bail as insurance against police custody following an arrest for an offence in respect of an order issued.
According to Section 43(1) of the Kenya Criminal Procedure Code, the High Court may grant anticipatory bail, that is, pending bail arrest, provided the applicant demonstrates that his or her right to liberty is likely to be compromised or breached unlawfully by an organ of the state that is supposed to protect this right.
However, the law demands that the person seeking anticipatory bail or orders demonstrate that the arrest apprehension is real and not imagined or speculative.
In this case, the burden of proof is on the convicted person or the person anticipating arrest to demonstrate an overwhelming probability that his or her appeal will succeed.
“The law notes that the bail conditions should be reasonable, proportionate to the offence for which bail is granted, appropriate to the risks in relation to which they are imposed, and take into account the individual circumstances of the accused person,” Section 43(1) of the Kenya Criminal Procedure Code spells out.
Section 43(1) of the Kenya Criminal Procedure Code noted that courts must provide reasons for their decisions to deny bail and provide reasons where they have attached conditions to the grant of bail.
Source: kENYANS.CO.KE