Nairobi — Can the High Court grant orders to forestall the occurrence of an anticipated breach of fundamental rights and freedoms? Or put simply, can the courts grant anticipatory bail or bail before arrest?
This question was raised at a Constitutional Court by a tea farmer madly in love and its determination has given birth to a new law in the land: persons who are justifiably apprehensive that they may be arrested and or detained by police can now obtain bail before arrest.
Samwel Muciri W'Njuguna filed the constitutional reference after what he described as several unwarranted arrests, detentions by police and tramped-up charges preferred against him.
W'Njuguna had moved the Constitutional Court seeking to stop the police from interfering with his relationship with his friend and lover Ms Terecia Nyaciuma Mukui.
He also sought to stop his lover's four grown-up sons from interfering with their relationship.
He told the court, comprising High Court judges, Ms Kalpana Rawal and Mr Luke Kimaru that he has had problems with the police since 2000 "but they seem to have taken a turn for the worse" when he befriended Ms Mukui.
The court heard that the woman's sons were not amused by the relationship.
"Ms Mukui's four sons have contrived to make my life unbearable as long as I remain in the relationship," W'Njuguna told the court, adding that they had exhibited open hostility towards him and their mother.
He recounted an incident when he was assaulted, tied up with a rope and bundled in a vehicle.
He said he was threatened with death, his vehicle was damaged, furniture in the house looted and other household goods set on fire.
The court heard that two of Mukui's sons have connections with the police establishment. One son, Mr John Kimata is a police officer while the other, Mr Joseph Gititu Mukui, works with the police motor vehicle inspection unit in Thika.
W'Njuguna told the court that he believed that the attack on July 19, 2002, was masterminded by Ms Mukui's sons, who prior to the incident had threatened him several times.
He said he recorded a statement with the police concerning the incident.
To his surprise, in July 2000, police ransacked his residence in Karen with the intention of arresting him, but he had gone underground.
W'Njuguna said he was surprised by the zeal in which the police were aggressively seeking to arrest over the arson, while the real perpetrators of the attack were left scot-free.
He was later arrested by police at his Karen home on November 29, 2002, and charged with committing arson.
W'Njuguna was acquitted of the charge under section 202 of the Criminal Procedure Code after the prosecution presumably failed to avail witnesses on February 12, 2003.
He told the Constitutional Court that police misused and abused their powers to harass and arraign him in court several times on trumped-up charges, which ultimately failed to stand up to the test of scrutiny.
There is no specific provision in our statutes for granting anticipatory bail or bail pending arrest. The existing law provides for the grant of bail after arrest and not prior.
Section 72 (1) of the Constitution provides that no person shall be deprived of his personal liberty save as may be authorised by law. And Section 72 (5) states that if a person arrested and detained on reasonable suspicion of having committed or being about to commit a criminal offence other than capital offences, he/she be released either unconditionally or upon reasonable conditions so that he appears at a later date for trial or for the proceedings preliminary to trial.
The provisions of sections 38 and 39 of the Criminal Procedure Code have been used by applicants to be granted what amounts to bail before arrest.
What the applicants do is to appear before a magistrate and ask to be arrested and then released on bond, if they have fears that they are likely to be arrested by police.
And Section 22 of the Police Act grants a police officer investigating an alleged offence powers to give bond to a person to procure his due attendance in court.
In all these instances, there is no specific provision for which a person in fear of imminent arrest can apply to the court to grant him anticipatory bail.
Justices Rawal and Kimaru, while agreeing that there is no provision for anticipatory bail in our laws, said the right to bail pending arrest is envisaged by section 84 (1) and (2) of the Constitution.
Section 84 (1) and 2 of the Constitution provides that the High Court may make such orders, issue such writs and give directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of the aforesaid sections.
In their ruling, the judges said that a person who is constantly subjected to harassment or is in fear of being unjustifiably arrested, has a right to the protection of the Constitution through the High Court.
"It will indeed be a tragedy if the Constitution did not provide a remedy to a citizen whose fundamental rights have been violated. In the instant case, the applicant has had dreadful experiences at the hands of the police where he has been severally incarcerated for no apparent or justifiable reason," the judges said.
They observed that in India, courts for a long time granted the right to anticipatory bail even when legislation on the same did not exist.
They held that if the High Court were to wait for Parliament to legislate the right to anticipatory bail, then the court would be shirking its responsibility to enforce the protection of fundamental rights and freedoms as provided for by the Bill of Rights.
They said anticipatory bail could only be granted upon terms that are appropriate under the circumstances of the respective case.
"In the present case, we agree with the applicant that his rights to liberty have been breached and the applicant has reasonable apprehension that they are likely to be violated by police authorities," the court ruled.