Rights of suspected terrorists: assessing the constitutional right of suspected terrorists to bail in Kenya against public interest

Kantai, Nairuko Sianoi
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Strathmore University
On the 4th of August 2010, Kenyans enacted a new Constitution. This Constitution stipulates that all accused persons are entitled to apply for bail unlike previous legislation which denied bail for capital offences such as murder. Bail will therefore be granted unless the court deems that there are compelling reasons not to grant it. The Constitution has however failed to define compelling reasons. The main objective of this research is to interrogate the current counterterrorism framework in Kenya with a particular focus on bail so as to determine whether it is sufficient to preserve national security.This study has been conducted mainly through a literature review of various legislations regarding bail for suspected terrorists using a qualitative approach. It has established that indeed there are various disparities in the law regarding bail for suspected terrorists. This has led to the courts releasing some suspected terrorists on bail who have then gone to commit further acts of terrorism. Furthermore, the 2015 Bail and Policy Guidelines have failed to clarify matters on bail for suspected terrorists. The Judiciary has therefore had to interpret and define compelling reasons. This has led to inconsistencies in the manner in which bail is granted. The study therefore proposes that public interest in terms of national security outweighs the right to bail for suspected terrorists. It also proposes that clear laws regarding bail specifically creating a presumption against granting bail to suspected terrorists should be enacted. This will help to solve the inconsistencies in the interpretation of the law by the Judiciary.
Submitted in partial fulfilment of the requirements of the Bachelor ofLaws degree, Strathmore university law school
Counterterrorism, Social Contract Theory, Common Good Theory, Prevention of Terrorism Act, Security Laws (Amendment) Act, Bail and Bond Policy