Whilst I maintain the view that anyone who utters hate speech should face trial in a Court of Law, and if found guilty, be punished in accordance with the law, I support the move to apply for review of bail conditions imposed on Dikembe Disembe. Ultimately, the court has discretion about granting bail. However, the starting point should be, where an accused person is held in custody on a charge of an offence of which the person has not been convicted and that accused voluntarily appears before a court in relation to that offence, the court should grant bail to that person or enlarge or vary bail already granted by Police to the person. This means that, except in certain situations expressly outlined in law, such as an offence for which the penalty is imprisonment for life, which cannot be mitigated or varied under the Criminal Code or any other law, the court has a duty to grant the accused bail. The court can only refuse to grant bail to the accused if there is an unacceptable risk that the accused if released on bail:- (i) would fail to appear and surrender into custody; or (ii) would while released on bail - (a) commit an offence: or (b) endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the accused is charged or anyone else’s safety or welfare; or (c) interfere with witnesses or otherwise obstruct the course of justice, whether for the accused or anyone else. The court can also refuse bail if it believes that the accused should remain in custody for the accused’s own protection. Recommended bail conditions and the reasons for such conditions should be specific and justifiable. The conditions must be likely to be effective and capable of being enforced. The court must also avoid deliberate use of unattainable bail amount to keep the accused incarcerated. In Dikembe Disembe’s case, by granting bail, I believe the Court had undertaken a risk analysis and determined that releasing the accused on bail did not pose any of the risks above. Imposing a bond of Kshs. 5 million or cash bail of Kshs 2 million was therefore in effect, considering Dikembe’s status, a deliberate use of unattainable bail amount to keep the accused incarcerated. I hope the Court listen’s to the pleas of the accused’s lawyers tomorrow to vary the bail conditions and enable the accused to be released on bail pending trial. It must be remembered that the accused is innocent until proven guilty. Deliberate use of unattainable bail amount to keep him incarcerated will therefore breach his fundamental right to liberty and freedom of movement, as prescribed in the Constitution. Bail matter aside, I reiterate my view that anyone who engages in hate speech should be arrested and charged in a Court of Law, and if found guilty, be punished in accordance with the law. I therefore hope that many more hate mongers will be in Court soon, irrespective of their ethnic, religious and political backgrounds. Hesbon Omollo, Silas Chepkeres Jakakimba, Lee Makwiny, Leo Shabaan, Orengo Kenya, Aggrey Aluso,James Aggrey Mwamu, Ngunjiri Wambugu, Hon Malik Mureu, Martha Wangari Wanjira,
Posted on: Sun, 27 Jul 2014 21:40:36 +0000
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