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The Mirage of Freedom: Why Absconding Bail Leads to a Closed Cell Door
For many accused persons, the grant of bail marks an important milestone. After spending time in police custody or remand prison, securing release often feels like the end of the legal process. Family members raise money to pay cash bail or secure a bond, and the accused returns home.
Many people believe that release on bail means their case is over, failing to attend court, missing mention dates, and eventually absconding. The consequences are predictable. The court revokes the bail or bond, issues a warrant of arrest, and, upon rearrest, is far less likely to grant bail again.
This problem stems largely from limited legal awareness. Many accused persons, particularly those from vulnerable and low-income communities, do not fully understand that bail is a conditional release that protects the constitutional right to liberty while ensuring that an accused person remains available to stand trial. It is an agreement between the court and the accused. The court permits release on the condition that the accused attends every court appearance until the case is concluded.
When an accused person fails to honour these conditions:
• First, the court issues a warrant of arrest after an unexplained failure to attend court.
• Second, any cash bail paid or property pledged as security risks forfeiture. Family members or friends who acted as sureties also face financial liability.
• Third, the accused is regarded as a flight risk. This significantly reduces the likelihood of being granted bail after rearrest.
Many people return to court expecting their previous bail terms to be reinstated. Instead, they find that the court declines the request.
Under Article 49 of the Constitution of Kenya, an arrested person has the right to be released on bond or bail unless there are compelling reasons to deny release. A previous failure to attend court is one of the strongest indicators that an accused person is unlikely to comply with future bail conditions. Many remand prisons hold individuals whose detention could have been avoided had they complied with their bail conditions. Closing this legal literacy gap is central to Justice Nest's work.
Justice Nest recognises that many people enter the criminal justice system with little understanding of court procedures or their legal obligations. Without access to legal information, accused persons often make decisions that worsen their circumstances and place additional strain on their families.
Prison Paralegal Programme:
We train prison officers and inmates as prison paralegals to provide basic legal education within correctional facilities. Before release on bail, accused persons receive information on court procedures, bail conditions, and the consequences of failing to attend court. This peer-based approach helps individuals understand their legal responsibilities before they leave custody.
Diversion and Restorative Justice:
For minor and non-violent offences, particularly those linked to poverty, we promote diversion and restorative justice. Working with the courts and other justice sector actors, the organisation supports mediation and negotiated resolutions where appropriate. Successful diversion allows cases to be resolved without prolonged criminal proceedings, reducing unnecessary detention and improving access to justice.
We inform the accused that bail protects the presumption of innocence while allowing the criminal justice process to continue. It is not a substitute for the trial process and does not remove the obligation to appear before the court. Legal freedom comes when a case reaches its lawful conclusion through acquittal, diversion, withdrawal, or completion of sentence. Improving legal literacy helps accused persons understand this distinction, comply with court orders, and avoid unnecessary detention.
Author: Diana Gakinya- Legal Advocate at Justice Nest
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