EXPLAINER: How threats to prosecutors or witnesses influence bail decisions

Gavel/FILE

The right to bail is a fundamental constitutional guarantee as enshrined in Article 49(1) of the constitution.

The piece of legisltaion provides that an arrested person has the right to be released on bond or bail, pending a charge or trial, unless there are compelling reasons not to be released.

While this right underscores the presumption of innocence, it is not absolute and can be curtailed when there are compelling reasons, such as threats to state prosecutors or witnesses.

One of the primary compelling reasons that can justify the denial or revocation of bail is the threat posed by the accused to state prosecutors or witnesses.

Such threats can significantly influence judicial decisions regarding not just bail, but also court judgment, as they have the potential to undermine the integrity of the criminal justice process.

For instance, in a notable recent case involving three suspects linked to the murder of Kasipul MP Ong'ondo Were, one of the accused was reported to have allegedly threatened a state prosecutor.

This alleged threat was a critical factor considered by the court when determining the bail application, highlighting how threats to legal officers can directly impact bail decisions.

"I therefore believe that the third accused indeed uttered the words "Huyu tutamuua." The mere utterance of the words has frightened the prosecutor of this court, the question now is, what about the witnesses? It is on that ground alone that the three of you will be denied bail," Justice Diana Kavedza ruled.

The Star spoke to Lawyer Vienna Mongare who notes that when assessing whether threats pose a significant risk in a case involving a prosecutor or witness, the court considers several key factors.

“Judges look at how real and serious the threat is. They consider whether it was direct, who made it, how it was made (in person, text, call), and whether the accused could actually carry it out,” the lawyer explained.

She added that the court also weighs whether the threat could stop a witness from testifying or otherwise interfere with the progress of the case, as such impact could compromise the fairness and integrity of the trial.

“Not every angry word is treated as a real threat. Courts look at context, proof, and intent. A vague or emotional outburst won't carry the same weight as a specific threat that shows planning or intent to interfere with the case,” she noted.

“Judges want to be sure the threat is credible and not just hearsay.”

Kavedza further cites the Bail and Bond Policy Guidelines (2015), which advise judges to consider threats against witnesses or prosecutors as a key factor when making bail decisions.

Additionally, she notes that the Criminal Procedure Code empowers courts to deny bail if there is a credible risk that the accused may interfere with witnesses or obstruct the course of justice.

“The constitution says everyone has the right to bail unless there are "compelling reasons" to deny it. If someone is likely to threaten or intimidate a witness or a prosecutor, that's a compelling reason,” she says.

“The law is careful here as it protects both the rights of the accused and the safety of those involved in the case.”

The advocate observes prosecutors can present evidence such as statements from the threatened person, police reports, text messages, call logs, or recordings to prove a threat exists and link it to the accused.

They may also call investigating officers to explain the risk involved.

“The goal is to show the threat is real and connected to the accused.”

The defence, on the other hand, can challenge the claims by questioning the evidence and arguing that the accused is being unfairly blamed.

The Star spoke to defence counsel Vienna Mongare who provided legal insight on what factors judges consider.

The presumption of innocence, she highlighted, means the accused shouldn't be treated as guilty before trial.

“Courts try to balance that with the need to keep people safe and ensure witnesses aren't silenced,” Vienna noted.

 On the challenges of proving threats during bail hearings, she notes that such hearings often move quickly, and threats can be difficult to verify.

“In many cases, it's one person’s word against another’s, and some witnesses may be too afraid to come forward. As a result, Judges often have to make decisions based on incomplete or early-stage evidence,” Vienna pointed out.

The advocate noted that bail can still be granted if the threat is not clearly linked to the accused, or if it seems exaggerated.

She adds that judges may also consider things like the accused's clean record, family ties, and willingness to obey bail conditions.

“If the risk can be managed, they may choose strict bail terms instead of outright denial.”

On reforms to protect prosecutors and witnesses while respecting the rights of the accused, Vienna recommended several key steps, including strengthening the witness protection programme, equipping judges with better tools to assess threats promptly, allowing confidential testimony in sensitive cases and training police and prosecutors to handle threat-related evidence more effectively.

In conclusion, courts are tasked with the delicate balance of upholding the rights of all parties involved while ensuring the integrity of the judicial process and administration of justice is upheld.