106. The Court recalls its jurisprudence that, discrimination is “a differentiation of
persons or situations on the basis of one or several unlawful
criterion/criteria.”16 This understanding of discrimination, however, is what
is often referred to as direct discrimination. In cases where the
discrimination is indirect, the key indicator is not necessarily different
treatment based on visible or unlawful criteria but the disparate effect on
groups or individuals as a result of specified measures or actions.17
107. In the instant case, by virtue of Sub-sections 148(5)(b) and (e) of the CPA
out rightly barring the Courts from considering an application for bail by
accused persons who have served a sentence exceeding three years and
those who have been charged with offences relating to property worth over
ten million shillings, it in effect, treats such accused persons less favourably
as compared to accused persons charged with other offences which fall out
of the ambit of Section 148(5) of the CPA.
108. The Court notes the Respondent State’s submission that the aim of Section
148(5)(b) and (e) of the CPA is to guarantee the “appearance of the
accused, public peace and security.” However, the Respondent State has
not given the details as to how the impugned law provides the guarantees
it claims. Furthermore, it has not given cogent reasons as to why the law is
not of general application, that is, why some accused persons under Section
148(5)(b) and (e) of the CPA can benefit from the possibility of being granted
bail while others cannot.
109. In light of the foregoing, the court is of the view that the discrimination
occasioned by virtue of the operation of Sub-Sections 148(5)(b) and (e) of
the CPA violates Article 2 of the Charter to the extent that certain categories
of accused persons are barred from receiving bail, irrespective of their
personal or other circumstances.
Actions pour la Protection des Droits de l’Homme (APDH) v. Republic of Côte d’Ivoire (merits) (2016)
1 AfCLR 668, §§ 146-147; Kambole v. Tanzania (merits), § 68.
17 Kambole v. Tanzania, ibid, § 68.
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