The Judicial Service Commission’s press statement of 17 July 2025, titled “Statement by the JSC on Unwarranted Attacks Against Judicial Officers,” urges the public to stop criticizing judges over bail and bond decisions. It portrays such criticism as a threat to judicial independence and the rule of law. But this defensive stance rings hollow in the face of real tragedies under the judiciary’s watch. Take the heartbreaking case that sparked public outcry: 24-year-old Julia Wangui, a first-time protester in Nanyuki, died in custody after failing to raise a Ksh 50,000 bond imposed for a minor protest-related charge. She was arrested during the Saba Saba demonstrations, charged with a non-violent offence (malicious damage), and remanded when she couldn’t afford the bond. Days later, she was dead in unclear circumstances. This is not an isolated incident of harsh pre-trial detention, it is a glaring symptom of a Judiciary that is failing to uphold its constitutional mandate to deliver justice impartially and protect fundamental rights. Criticism of such failures is not “unwarranted”; it is necessary and justified.
Constitutional Mandate vs. Bail Reality
Kenya’s Constitution squarely guarantees the right to bail. Article 49(1)(h) of the Constitution of Kenya 2010 provides that an arrested person “has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.” This means bail is a constitutional right, not a privilege, and any denial or restrictive conditions must be justified by truly compelling reasons. As the Judiciary’s own Spokesperson Hon. Paul Ndemo admitted during a recent interview, “Under the Constitution, it is actually a right… an accused person has a right to bail or bond given on reasonable conditions.”. The law backs this up: Section 123 of the Criminal Procedure Code (Cap 75) reinforces that bail terms must be set with regard to the circumstances of the case and “shall not be excessive.” In plain terms, our statutes and Constitution demand that courts favour liberty and set only reasonable, proportionate bail conditions. The Judiciary’s Bail and Bond Policy Guidelines (2015) further echo these principles, bail should be no more than necessary to ensure the accused’s appearance at trial, and conditions should consider the personal circumstances of the accused. These are not radical notions; they are the very baseline mandates of justice in our legal system.
Yet the lived reality in Kenyan courts today departs disturbingly from these standards. If the Judiciary were faithfully upholding its mandate, no peaceful demonstrator would be languishing in remand for inability to post cash bail on a minor charge, let alone dying as Julia did. Bail decisions in cases arising from political protests have been notably severe and seemingly punitive. Even first-time, non-violent protesters in 2023-2024 were frequently slapped with cash bail as high as Ksh 50,000–100,000, far beyond their means. This flies in the face of the “reasonable conditions” requirement in Article 49 and blatantly ignores the Bail/Bond Policy Guidelines’ call for proportionality and consideration of ability to pay. In effect, the constitutional right to bail has been hollowed out by erratic exercises of judicial discretion. The JSC statement insists that bail rulings “are not made arbitrarily” but rather follow the law and guidelines. The evidence, however, suggests otherwise: routine bail-setting practices are undermining constitutional rights, especially for the poor and politically targeted.
Ignoring the Judiciary’s Own Guidelines
A troubling admission from Spokesperson Paul Ndemo’s interview was that judicial officers have broad discretion in bail matters despite clear guidelines. “We have guidelines on bail and bond that guide judicial officers… but it is a discretionary power that they have,” Ndemo explained. In theory, discretion should be exercised within the confines of law and policy. In practice, unbridled discretion has meant guidelines can be honoured in the breach. The Bail and Bond Policy Guidelines, formulated by the National Council on the Administration of Justice, were created specifically to standardize bail decisions and prevent exactly the kind of disparities and excesses we are now witnessing. They emphasize that bail terms should be reasonable and tailored to the individual, not a one-size-fits-all or punitive approach. They even warn that bail amounts must not be “far greater than is necessary to guarantee the accused’s appearance”, nor should bail be used to needlessly hold minor offenders.
Despite this, Ndemo essentially concedes that many judicial officers treat these guidelines as optional. He stated plainly that “you cannot… standardize” bail terms across cases and that the policy is only a general framework, not a rulebook: “We have provided guidelines at best… these are the factors you look at… but you cannot then say that this is what you will do”. This startling remark should alarm anyone concerned with equal protection of the law. It implies that even for similar offenses, the outcome depends largely on the whims of individual magistrates or the “prevailing circumstances” in a given moment. Such an arbitrary approach invites inconsistency and unfairness. It opens the door to implicit bias and external pressure swaying decisions, precisely what the guidelines were meant to guard against. By ignoring its own policy directives, the Judiciary undermines public confidence in the justice system. How can citizens trust that they will be treated fairly when the rules of the game appear fluid and discretionary?
The JSC’s statement proudly recites that bail decisions rely on the Constitution, the CPC, and the Bail/Bond Guidelines. But if those venerable sources were truly controlling every decision, would we see such wildly divergent outcomes for similar scenarios? Why was one magistrate in 2023 able to release dozens of protesters on free personal bonds (recognizance) as was reported, yet in 2025 another magistrate demands hefty cash bail from a poor young woman who posed little flight risk? The only explanation is that the guidelines are being applied inconsistently or not at all, a failure by the Judiciary to police its own processes. This failure directly betrays the Judiciary’s constitutional mandate to promote equal justice. It also contradicts Article 159 of the Constitution, which obligates courts to protect and deliver justice impartially and without undue technicality. The JSC should be confronting these internal lapses, not papering over them by attacking critics.
Inconsistencies and the Spokesperson’s Admissions
Hon. Paul Ndemo’s interview was meant to clarify the judiciary’s position, but it ended up revealing disconcerting inconsistencies in how justice is dispensed. Notably, Ndemo acknowledged that the Judiciary’s approach to bail has shifted over time, even for similar types of cases. “The way I handled a case two years ago is probably not the same way I’ll handle the case today in terms of bail and bond,” he admitted. This is a stunning confession. In an ideal rule-of-law system, justice should not depend on the year or on the judicial officer's mood; like cases should be treated alike. What has changed in two years to justify a harsher stance on bail, especially for protest-related cases? Ndemo insists that “in terms of the law, it is fixed… but in issuing bail and bond, I must look at what are the prevailing circumstances”. Here the “prevailing circumstances” seem to be a thinly veiled reference to the current political climate, a climate in which the government has taken a hard line against dissent. His words inadvertently confirm the very fear many Kenyans voice: that the Judiciary’s bail decisions are swayed by external pressures and the zeitgeist, rather than by consistent legal principle.
Even more telling was Ndemo’s attempt to rationalize the stark contrast between last year’s leniency and this year’s severity. Interviewers pointed out that during previous protests (in 2023/4), many arrested demonstrators were swiftly released by magistrates, often on very lenient bond terms or none at all. The courts appeared to recognize that many protest-related charges were trivial or unfounded, and thus acted as a check on executive overreach. Fast forward to 2025, under similar circumstances, we are seeing the opposite: high bail and prolonged detention for protesters, even when charges are minor. When pressed on this discrepancy, Ndemo responded that a judicial officer must be “aware of the prevailing circumstances” and that if “something happens that makes the premium very high for the person to come back to court, then I must… put a little more stringent [conditions] to ensure that this person comes to court. So it is not fixed… you have to be aware of the prevailing circumstances.”. This explanation is as dangerous as it is baffling. What exactly elevates the “premium” on a protester’s return to court, if not political considerations? By Ndemo’s logic, an individual accused in the context of public protests might face tighter bail terms purely because of the context and political optics, not because that individual’s personal risk factors are any different from those of other accused persons. This is a tacit admission that external factors, perhaps pressure to deter further protests, are influencing bail decisions. It undermines the principle of impartiality.
Equally concerning is Ndemo’s reluctance to acknowledge any error in Julia Wangui’s case. The “court of public opinion,” as the interviewers phrased it, has concluded that something went very wrong when a young woman with no criminal history ended up with such onerous bail that she perished in remand. Ndemo rightfully expressed condolences and agreed “it should never have happened in that manner.” Yet, he immediately retreated into non-committal vagueness: “It would really be very speculative for me to sit and say that that bail was too high or it was too low… some are saying it was low, some are saying it is too high. So, it’s really dependent on the circumstances that the judicial officer looked at.”. This equivocation is startling. If a Ksh 50,000 bond for a jobless 24-year-old protester isn’t “too high,” what is? By refusing to even admit the possibility of misjudgment, the Judiciary’s spokesperson displayed a troubling lack of introspection. This stance suggests that the institution is more interested in defending itself than in learning from mistakes. How can the public trust a system that, faced with an avoidable death, offers only platitudes and shrugs?
Such responses reinforce the perception that judicial accountability is lacking. The JSC’s press statement talks about “unwarranted personal attacks” on judges, but there is a stark difference between attacks and constructive criticism or demands for accountability. When a bail decision appears grossly unjust and results in loss of life or liberty, calling it out is a duty of citizens and the media, not an attack. Ironically, the JSC statement itself acknowledges that public interest in court decisions is legitimate, and that judges rely on established law and guidelines. All we ask is that they actually follow those laws and guidelines consistently. If pointing out inconsistency and injustice is deemed an “attack,” that reveals a Judiciary more concerned with its image than its service.
Weaponisation of the Judiciary in a Charged Political Climate
Ndemo’s interview and the JSC statement cannot be divorced from the broader political context in Kenya today. Over the past two years, Kenyans have witnessed recurring waves of public protests, over economic hardships, taxation, electoral grievances, and police brutality. These protests (popularly dubbed “maandamano”) have often been met with heavy-handed state response, including mass arrests and dubious charges against protesters and opposition figures. There is growing alarm that the justice system is being leveraged to intimidate and suppress dissent. This is what commentators mean by the “weaponisation of the law” or “weaponisation of the judiciary.” Instead of acting as a neutral arbiter that protects citizens’ constitutional rights, the courts risk being perceived as an extension of the punitive machinery of the state when they uncritically endorse punitive bail terms or detention for protesters. Even the interviewers in Ndemo’s session pointedly noted that many see the judiciary as the last bulwark against such abuse, and they questioned why that bulwark seems to be failing in some instances. They cited instances where protesters faced disproportionately high bond terms (up to Ksh 100,000) for minor offences, and observed that “the judiciary can see that there’s a weaponization of the law happening”, yet not uniformly so, since some protesters were freed while others were hit with stringent terms.
The prevailing political climate is one of tension, where the Executive has shown impatience for dissent, and some leaders publicly question the Judiciary whenever decisions don’t go their way. The JSC, chaired by Chief Justice Martha Koome, is understandably keen to defend judicial officers from overt political intimidation, hence the emphasis on decisional independence in their statement Judicial independence is indeed sacrosanct. But independence is not a shield against accountability; nor should it be an excuse for courts to retreat into an ivory tower insulated from valid criticism. Moreover, independence cuts both ways: Judges must be independent not only from populist pressure, but also from executive or political interference that seeks to use the courts as a tool to stifle opposition. Unfortunately, the pattern of bail decisions in protest-related cases suggests that this balance is off. When courts impose harsh terms on peaceful demonstrators without clear compelling reasons, it gives the impression, rightly or wrongly, that they are yielding to political pressure to deter protests. This corrodes public trust far more than any angry tweet or speech ever could. As one human rights observer lamented, we expect the courts to be the citizen’s refuge when laws are misused; if that refuge closes its doors, where else can justice be sought?
The Judiciary should recall that its constitutional mandate under Article 159 is to uphold justice for all, and under Article 10 to abide by national values like human rights and good governance. The JSC’s own mandate is to ensure accountability and promote public confidence in the courts. That confidence is undermined when young Kenyans fear that wearing a protest t-shirt or shouting a slogan might land them in jail on an unaffordable bond, effectively criminalizing dissent. It is further eroded when serious charges like terrorism are hinted at for protest activity, a concern raised in the interview about protesters possibly being slapped with terrorism allegations to deny bail for 30 days. Although Ndemo assured that even in such cases the prosecution must show “compelling reasons” to hold someone, the mere possibility of upcharging protesters with grave offences is chilling. The Judiciary must be vigilant against becoming a complacent enabler of such tactics. Each bail decision should reflect an independent, courageous commitment to individual rights, not an overzealous alignment with state security narratives.
Conclusion: Uphold Justice, Not Just Judges
The JSC’s July 17th statement was ostensibly about “unwarranted attacks” on judges, but it missed the forest for the trees. The public is not interested in attacking judicial officers for sport; Kenyans are desperate for an assurance that the Judiciary is on their side when it comes to upholding justice and the rule of law. The outcry over bail and bond rulings is a symptom of deeper frustrations: that courts sometimes appear detached from reality, insensitive to the plight of the poor, or too pliant in the face of political winds. The Judiciary’s first duty is to the Constitution and the people, not to the ego or comfort of judicial officers. As a legal professional, I fully support judicial independence and condemn personal threats against judges. However, robust criticism of judicial decisions is part of accountability in a democracy. Judges are not infallible, and when patterns of questionable decisions emerge, the public has not only a right but a responsibility to call them out.
Instead of bristling at criticism, the JSC and the entire Judiciary ought to engage in self-reflection and reform. They should ask: Why are Kenyans (including respected civil society voices and media) so alarmed about bail decisions lately? What can be done to ensure greater consistency, fairness, and adherence to the law in such decisions? Concrete steps might include revisiting and reinforcing the Bail and Bond Policy Guidelines, making sure every magistrate and judge actually follows the established criteria. The Judiciary could institute regular reviews of bail rulings, especially in politically charged cases, to check for outliers and rectify excesses (the law already allows the High Court to revise excessive bail set by lower courts, CPC §123(3), a mechanism that should be used proactively to prevent injustices). Additionally, training and circulars from the Chief Justice can remind judicial officers that bail is a right, not a favour, and that socio-economic status must be considered to avoid indirectly jailing the poor for their poverty. The courts can also embrace non-custodial measures (like personal bonds, community ties, or electronic monitoring) as alternatives to cash bail, aligning with the principle of minimal intrusion pending trial. All these would be actions in good faith to restore public trust.
Ultimately, the Judiciary must hold itself to the same standard it demands of others: fidelity to the law and the Constitution. The JSC’s statement invoked the idea that criticism of judges “misrepresents the Judiciary’s constitutional role” and “corrodes public trust”. But nothing corrodes public trust more than a sense that justice is not being done. The Judiciary’s constitutional role is not just to be independent, but to be accountable guardians of justice. When a young Kenyan dies in remand on a trivial charge, justice has manifestly failed. Pointing that out is not an attack on the Judiciary, it is a call for the Judiciary to live up to its own ideals. Rather than dismissing public outcry, the JSC and judicial leaders should listen to it. Upholding the rule of law means protecting rights in practice, not merely reciting them in press statements. Kenyans will continue to demand that the courts truly become, in deed and fact, the “last bastion” of defense for our rights, as Ndemo rightly described, and not a tool for those who would trample those rights.
In sum, criticism of recent bail decisions is warranted because we expect better from our Judiciary. The Constitution and laws have set a high bar for justice, it is time for the Judiciary to clear it, consistently and resolutely. The next time the JSC feels tempted to issue a blanket defense of judicial officers, it should instead take a hard look at whether those officers’ decisions honour or hinder the cause of justice. No amount of public relations will substitute for the real work of reforming bail practices and recommitting to the Judiciary’s constitutional mandate. We the people are watching, and we will not be silent when justice is at stake.
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