admin
Trust Maanda
Post Correspondent
AN accused person is entitled to bail pending trial.
In terms of 50 (1) (d) of the Constitution of Zimbabwe, bail should be granted unless the State has compelling reasons for a person not to be admitted to bail.
Bail is a right which can only be curtailed upon the State satisfying the court that it is not in the interest of justice for the accused to be released on bail.
In discharging its onus to have bail denied, the State has not only to allege, but should prove cogent grounds on which bail should not be granted. The entitlement of an accused person to bail is regulated by Section 117 of the Criminal Procedure and Evidence Act (Chapter 9:07) – inserted by Section 9 of Act 9 of 2006.
Statutory Instrument 117(2) of the Criminal Procedure and evidence Act provides: “The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established—
(a)where there is a likelihood that the accused, if he or she were released on bail, will—
(i)endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or(ii)not stand his or her trial or appear to receive sentence; or
(iii)attempt to influence or intimidate witnesses or to conceal or destroy evidence; or(iv)undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; In turn, Section 117(3) (b) elaborates the specific c factors to be taken into account in evaluating the likelihood of abscondment, including “the efficacy of the amount or nature of the bail and enforceability of any bail conditions”
The onus is not on the accused to prove that he or she is a suitable candidate for bail. It is on the State to prove that the accused is not a suitable candidate for bail. It is not sufficient for the State to make bald and unsubstantiated assertions that particular grounds for refusing bail exist.
The assertions must be grounded on well-established facts. Simply alleging that the accused may abscond, that the matter is serious, and that the accused may endanger the public or will interfere with witnesses, without substantiating such allegations, does not amount to compelling reasons for the denial of bail.
The seriousness of the offence alone and the severity of the penalty prescribed must not be left open-ended by not specifically addressing the accused’s disposition to abscond in that regard. That an accused owns a passport cannot be relied on to conjecture that that the accused will abscond.
That the evidence against the accused is strong must be measured against the accused defence. The weaker the State’s case is the less likely the accused will abscond.
Ultimately, the court must identify any cognizable indication that the accused would abscond and not stand for trial if released from custody.
If there are no indications that the accused will not stand trial if released on bail or that he or she will interfere with witnesses or otherwise hamper or hinder the proper course of justice, he or she is entitled to and will normally be granted bail. The gravity of the offence on its own is not a sufficient ground for denying an accused person bail pending trial. The seriousness of the offence like public violence and murder allegation does not constitute sufficient grounds for denying an accused bail. is principle has been established in several decided cases. It is because of the presumption of innocence that the courts are expected, and required, to lean in favour of the liberty of the accused.
But where cogent grounds have been established by the State why an accused cannot be released on bail, the accused has to show that it will be in the interest of justice for him to be granted bail.
The court may grant bail on conditions such as that the accused deposits a certain sum of money with the clerk of court, surrenders his or her passport to the Clerk of Court, continue to reside at given address until the matter is finalised and to order him or her not to interfere with state witnesses.
An accused person is presumed innocent until he or she is proven guilty. Bail ensures ensure that as far as possible an accused enjoys his or her liberty and not be punished by pre-trial incarceration before he or she is found guilty.
It is only in cases that the interest of justice will not be served by releasing an accused on bail that bail will be denied. In order not to defeat the interests of justice an accused person released on bail should comply with the conditions on which bail was granted.
◆ Trust Maanda is a legal practitioner and a
partner at Maunga Maanda And Associates.
He writes in his personal capacity. He can
be contacted on +263 77243264
Online Reporter