Online Reporter
Bail pending trial: A constitutional right
Pro Deo, [email protected]
The 2013 Constitution of Zimbabwe, as amended, entrenches bail as a fundamental constitutional right, and while much attention is often given to bail pending trial.
It must also be stated that the law recognizes the related concept of bail pending appeal or review, though this installment focuses specifically on bail pending trial as it relates to the rights of accused persons already discussed.
Before trial, an accused person is presumed innocent until proven guilty by a competent court of law, and in keeping with this progressive constitutional dispensation.
It is the State, acting through the National Prosecuting Authority, that bears the onerous duty of placing before the court compelling reasons why an accused person should be deprived of liberty and held in prison pending trial.
Under section 50(1)(d) of the Constitution, it is provided that every person who has been arrested must be released unconditionally or on reasonable conditions pending trial, a right that can only be taken away upon proof by the State that there are compelling reasons justifying continued detention.
The question that naturally arises is what constitutes compelling reasons, and the jurisprudence and practice show that an accused person may be denied bail where there is a real likelihood that he will flee, where he is likely to interfere with witnesses, tamper with investigations or evidence, or where his release would pose a threat to public safety or the safety of society.
Section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07] exhaustively deals with the question of entitlement to bail and provides the statutory framework within which courts assess these applications.
A bail application is an urgent application that can be made at any time, either verbally or in writing, to the judge or magistrate before whom the accused is appearing.
It must be noted that for certain serious offences, the power of a magistrate to entertain bail is excluded or qualified, with offences such as murder, rape and armed robbery being classic examples where the High Court has original jurisdiction.
While the legal onus rests on the State to justify continued detention, it is nevertheless prudent for an accused person to make adequate preparation for a bail application.
This includes requesting the opposing affidavit in order to properly attack the grounds advanced by the State, and ensuring that kith and kin are available to confirm residential addresses because a person of no fixed abode is often viewed as a flight risk.
Relatives and friends should also be on hand to assist with issues relating to valid travel documents that may be surrendered to the court, bearing in mind that an expired travel document is treated the same as one that does not exist, and it is equally important to outline, even in broad terms, the nature of the defence to take the court into one’s confidence.
Given that a bail application is a complex process involving constitutional interpretation, factual persuasion and legal argument, it is prudent to engage a legal practitioner to navigate the procedure and to ensure that the constitutional right to liberty pending trial is fully protected.
