Let's focus on bail pending trial

BAIL law is an important aspect in the criminal justice system and must be understood by everyone so that justice may not only be done but also seen to be done.

Many people have raised concerns that after having reported a serious crime and the suspect is arrested, the very suspect is seen back in the streets on bail. Because of this, some have lost faith in the justice delivery system.

What is bail?

Bail is a procedure by which a judicial officer sets at liberty one who has been arrested or imprisoned, upon receipt of security to ensure the accused later appears in court for trial.

Basis for bail

Bail application is premised on the notion that an accused person is presumed innocent until proven guilty. This is enshrined in section 70 (1) (d) of the Constitution of Zimbabwe (Hereinafter referred to as the Constitution)

It is interesting to note that even if a person is caught committing a crime, the presumption of innocence prevails.

The most explicit provision which clearly states the right of the accused to bail is section 50 (1) (d) of the Constitution which prescribes that an accused person must be released unconditionally or on reasonable conditions, pending a charge or trial unless there are compelling reasons justifying their continued detention. Applying this section in the case of State vs Munsaka, the judge Justice Nicolas Mathonsi stated that the arrested person is entitled to bail as of right if we are to give the section its proper literal application.

Section 117 (1) and (2) of the Criminal Procedure and Evidence Act gives an accused a right to be released on bail at any time after he or she has appeared in the court on a charge unless the court finds that it is in the interest of justice that he or she should be detained in custody. The courts have to make a decision after balancing the liberty of the accused on one hand and the interests of justice on the other.

When bail may be refused?

If it is not in the interest of justice not to release the accused on bail, for example, if there is overwhelming evidence that the accused is a dangerous person and would terrorise the community if granted bail, then bail is denied. It must be borne in mind that the rights in the Constitution are not absolute, meaning that they can be limited by a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society.

The Constitution states that bail can be denied only if there are compelling reasons to do so while Criminal Procedure and Evidence Act prescribes that it can only be denied if the accused is:

Likely to endanger the safety of the public, likely to abscond trial or attempt to influence or intimidate witnesses or to conceal or destroy evidence and  undermine or jeopardise the objectives or proper functions of criminal justice systems.

It is debatable though whether the grounds of refusal of bail under section 117 (1) and (2) of the Criminal procedure and Evidence Act are still part of our law after Justice Mathonsi in State V Munsaka stated that they cannot remain part of our laws to the extent that they are inconsistent with section 50 (1) of the Constitution. The Legislature has to align the laws to be consistent with the constitutional provision and once that is done, the section will cease to exist.

Now we are going to interrogate the three main factors the courts take into consideration in deciding whether the constitutional right is to be enjoyed by the accused person.

Likelihood to abscond

If there are grounds for believing that the accused will take flight and become a fugitive from justice if granted bail, then bail will be refused. This is so if cogent reasons given are supported by evidence, for instance if the accused previously escaped or tried to escape from lawful custody, then bail will be denied. Further the court takes into consideration the seriousness of the offence and the likely sentence to be given once convicted.

Obviously a person will not likely to abscond if he is charged with theft of goods worth $500, the sentence once convicted cannot be more heftier than for an accused charged with murder or treason. The courts also take into consideration personal circumstances of a person, whether he has a family outside the country or is in possession of a valid passport.

Let me hasten to say that the fact that a person does not possess a valid passport should not be a major factor, taking into consideration the porous border posts. The recent bail hearing in South Africa of Enlightened Christian Gathering  leader Shepherd Bushiri and his wife taught us that even without a travel document, one can still skip the country's borders.

Likelihood of commission of other further offences

If the State maintains that further criminal conduct is likely, it must point to some facts that suggest there is such a danger and that this cannot be averted by imposition of stringent conditions. If the accused has a previous conviction, there is likelihood that he will commit other offences whilst on bail and it can be denied.

Likelihood of tampering with evidence

The State has to produce cogent reasons for believing so and not just mere gut feeling. If the accused had earlier on tried to intimidate or tamper with evidence, bail can be denied. In one of the decided cases, the accused tried to persuade a State witness to disappear, in such a case bail was denied.

Bail amount

Usually bail has to be within reach of the accused person. Excessive bail is discouraged as it will render the granting of bail a futile exercise. It is also allowed to give property as security to the court. It must be borne in mind that bail deposit is refundable after the case has been finalised.