Here is why you should not rush to pay bail for ‘over speeding’

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By David Wanjala and Jared Juma

Certain myths about enforcement of the law have for long made people to suffer, often under the yolk of ignorance or of the preference of convenience, not wanting to get out of the comfort zone. One such myth is that a person cannot fight a government. In the interpretation, civilian population will find themselves always obedient to the enforcement of the laws including non-existent ones.

Among the laws that people have suffered under are traffic laws being enforced under traffic Act Cap 403 of the laws of Kenya.  A casual historicity is necessary while looking at how this came to be a convention. A number of road accidents and terror related activities have always made the government to launch what has become popular in Kenya as a crackdown. It is often a police department mounting roadblocks to nab un-road worthy vehicles or the ones who violate speed limits.

At times, it is just a crack down in general hoping that no motorist can be found to be fully compliant of all the legal requirements and as such, if arrested, they may have to part with something small so as to go on with their journeys, the “violation of the law” notwithstanding.

Consider this scenario: You are traveling with your family from Nairobi to Kisumu. You are aware, for example, that it is the desire of the state to save lives and so speed is regulated to not more than 100 km an hour for small vehicles on various parts of the highway. You may not be so keen on speed so as to watch the speedometer all the time as you are supposed to be focused on the road to ensure a safe in interaction with other motorists, a process that is often very unconscious once you have hit the road for a long distance drive.

At the back of your mind, you are however aware that there are police officers hiding somewhere in some bushes by the road side with a speed detecting machine that will secretly spy at your car’s acceleration and should you be detected to have violated the speed limit, there is a likelihood that you will be stopped at the next police barrier, about ten or more kilometers from where you were detected. This could be moments when you have long forgotten about the idea as you drive on.

The process involves the operator of the speed detecting machine or the speed gun, noting your car registration details then making a phone call to the next police barrier. As soon as you reach the barrier you are flagged down. A little while later, you are politely requested for the driving licence to which you comply and hand it in for inspection. No one is keen at the moment, the next minute you will be told to await the police officer that will be escorting you to the police station for you to be booked.

This script may now be familiar with many motorists, albeit with slight deviations but the bottom-line is that you will be booked in a station very far from your normal residence and that you are in a journey, with some people. The police officer then tells you to hand in your car ignition key and the driving licence.

Around the time you have been told that you were detected to have violated the speed limit of 100 km an hour at some point in your journey, your panic begins as the officer tells you to cough out a police cash bail of Sh10, 000 so that you may go on with the journey and arrange to appear before the court closest to where you were arrested on a date of your choice within a week.

This takes me to where I began, not wanting to get out of the comfort zone and the myth about the government being all too powerful.

The traffic Act that I cited earlier is couched in very absolute terms. Section 70 of the said Act is headed TRAFIC SIGNS and provides at 70(1) as follows; (1) Subject to and in conformity with such general or other directions as may be given by the Minister, a highway authority may cause or permit traffic signs to be placed on or near a road. This section is very broad and vague so an amendment was hatched in 2013 thus providing for 70(1A) as addition and it provides thus; (1A) Without prejudice to the generality of subsection (1), a highway authority shall cause to be placed on or near a road traffic signs prescribing speed limits on the road.

   However, the clear reading of subsection 5B is the one that many people have been unaware of and have ended up bribing police for nothing, if not just the ignorance. It provides as below; (5B) A person who violates a speed limit prescribed for a road under subsection (1A) by more than 20km per hour commits an offence and shall be liable, on conviction, to imprisonment for a term of not less than three months, or a fine of not less than Sh20, 000, or both.

At this point it is clear to clarify that if the speed limit is 100km an hour, then driving at 120km an hour does not constitutive an offence but constitutes a violation. In other words, it is a violation not punishable by law. A person who violates the speed limits by more that 20km an hour is one who drives at a minimum speed of 121 km an hour. That is the driver who should be arrested and arraigned in court. Otherwise violating any speed limit, even where it is provided as 50km an hour, the offence comes if a driver does at least 71km an hour and not anything less. 

But many a motorist have been coned of their hard earned cash due to ignorance. And at times the easy availability of money transfer services such that upon being arrested, a person looks for easy means to reach out to friends to bail him out and help bribe the police so that the journey can go on. It is at times very inconveniencing if you have the whole family traveling with you.

Those who drafted the Traffic Act were ever aware that the dynamics of using a motor vehicle may not allow one to do constant speeds of not more than 50km, 80km or 100km per hour and thus provided for the slight non-offensive violation that could allow for overtaking safely along the highway.

Furthermore, even though recent regulations by the Chief Justice barring the police from locking up traffic offenders have indeed gone a long way in helping ease the pressure of succumbing to bribery by the offenders, it has not eliminated the vice. It only affords the offender the comfort and extended period of looking for the bribe.

The new regulations allow the police to only impound the vehicle and the driving license of the offender, thereby allowing one all the time and liberty to find money for the bond which upon paying, one chooses a convenient day within the week for court appearance. Only a handful of Kenyans, for the love of their comfort, will be willing to appear in court. As such, offenders choose to rather pay the bail, as bribe than endure the inconvenience of going back to attend court especially if where they committed the crime is hundreds of miles from their counties of origin.

Where the bond is Sh10 000 especially for speeds above the 100km limits, the offender will negotiate and pay either half the bond or slightly above. Even where one pays full bond with intent of appearing in court, the police are crafty. They do not charge the offender until he or she has appeared with the knowledge that chances of default are high. Whenever one fails to appear, the bond is pocketed and no effort is made to track the offender to press charges for the original offence and for default. This way, it has become even more lucrative to be a traffic police officer, more so on the highways, with hundreds of millions of shillings being lost to corruption every sunrise.

>>>>>> and the part of due to convenience,

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