Rights to Bail, Presumption of Innocence and the Zambian Criminal Justice System



Muna  Ndulo

Professor of Law, Cornell Law School, USA. Also Honorary Professor at University of Cape Town, Western Cape and Free State in South Africa.


“A presumption of innocence in favour of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law”. – Coffin v. United States, 156 U.S. 432 (1895).

The treatment of applications for bail in Zambian courts – especially in the subordinate courts is inconsistent and often fails to show an appreciation of the fact that the judicial function of granting or denying bail must be done in the context of constitutional rights. The creeping judicial culture of holding people in custody unnecessarily, is unconstitutional and perverts the criminal justice system. This is so because, citizens are ordinarily and without more entitled to their personal autonomy and liberty.  This is guaranteed in the Zambian Constitution. The law is rather elementary – leaving no one including lay people in doubt as to the innocence of accused person until found guilty. The only exceptions being in the judicious and judicial exercise of powers restraining the movement, autonomy or liberty of citizens.

Being judicious therefore such powers are not to be exercised flippantly or whimsically to the detriment of the fundamental freedoms of the citizens as guaranteed and protected in the Constitution. This creates not only a substantive duty on courts in construing the normative implications of criminal legislations; it squarely burdens them with inescapable procedural duties to follow due process of law in executing the judicial function. Thus, whatever is done in the criminal justice process especially in proceedings before the courts, there must be a strict adherence to the laws regarding the innocence of the accused persons until proved otherwise beyond reasonable doubt.

What this means is that bail conditions ought to be reasonable. An unreasonable bail condition defeats the sacrosanct doctrine and rule of presumption of innocence, which forms the desideratum of our accusatorial system of the administration of justice.  This pushes one to ask a number of fundamental questions regarding the festering culture of imposing unconscionable nail conditions in the Zambian criminal justice administration in the present moment. For instance, why should sureties be employees of a given entity? On what rational basis can one argue that a surety needs to be a Government employee or indeed an employee of any other entity?  Is it reasonable to expect that a person accused of defaming the government or any public official can easily get a civil servant from the same government – the accuser – to serve as surety on his behalf?

It is argued therefore that imposing impossible conditions of bail is an unequivocal denial of bail to an accused person. Bail conditions, which unreasonably interfere with an accused’s constitutional rights, are invalid. They are injudicious and disingenuous – to put it mildly.  In addition the incarceration of indigent accused persons for no other reason other than that they cannot meet unreasonable bail conditions, strips our justice system of its credibility and distorts its operation and violates the presumption of innocence. It depicts the justice system like the Dickensian justice system illustrated in the Pickwick Papers. It is a cobweb justice system – the flies are caught while the elephants walk free.

Of course this does not portend well for the rule of law or the welfare of citizens. In the long run it is even not cost effective because meager government resources are channeled not towards ameliorating the pains of the poverty-stricken masses but towards maintaining correctional facilities, which are already overwhelmed by awaiting trial inmates. There is no way that this could be the purpose of the exercise of judicial powers in a democratic society.

The Zambian Constitution proclaims the existence of a state that is founded on the rule of law – article 1 of the Constitution of Zambia. It further proclaims the Constitution as the supreme law of Zambia – article 1. Under such a regime bound by the Constitution, legitimate state authority exists only within the confines of the law, as it is embodied in the constitution that created it, and the purported exercise of such authority other than in accordance with the law is a nullity.

This is the cardinal tenant of the rule of law. It admits of no exception in relation to the judicial authority of the state.  The Judicial powers of the state is articulated and bound by this framing. Far from conferring authority to disregard the law, the constitution makes it imperative for justice to be done in accordance with the law. Thus, as in the case of other state authorities, judicial decisions outside the constitution are invalid. They are not worth the papers on which they are written. They ridicule the legal personnel behind them because they ought ordinarily to know better.

In furtherance of this rule of law disposition and the value placed on the liberty and freedoms of citizens, the Zambian Criminal Procedure Code in section 123 (1) provides that: “when a person is arrested or detained, or appears or is brought before a subordinate court, High Court or Supreme Court he may, at any time while he is in custody, or at any stage of the proceedings before such court, be admitted to bail upon providing a surety or sureties sufficient, in the opinion of the police officer concerned or court, to secure his appearance, or be released upon his own recognisance if such office or court thinks fit.” The operative part of the provision is the security of the accused person’s appearance in court; hence the person can indeed be released on personal recognisance. The discretion to do so is given to courts so as to allow for reasonable evaluation and nothing more.

Thus, the discretion that the court has in the matter is governed by the constitutional principle of rationality – the court must be circumspect, wise, prudent and unmoved by the prodding of filthy gains and manipulative political interests. To do otherwise by imposing unconscionable conditions of bail is simply to foul the stream of justice.

Generally therefore an accused person who is in custody is entitled to be released on bail if the court is satisfied that the interests of justice permit.

The only exceptions provided under the Zambian Criminal Procedure Code (section 123(2) relates to murder, treason or aggravated robbery, which are not ordinarily bailable. A person charged with an offence should be released pending trial unless the state can show that there are relevant and sufficient reasons to justify his continued detention.  These circumstances include where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses or flee from jurisdiction of the state.  However a mere assumption that the accused would interfere with the investigations or abscond if released on bail does not justify an exception to the rule that an accused person is entitled to bail.  The state needs to provide grounds for the concern and explain why they could not be addressed by setting an appropriate sum of bail and other conditions of release designed to ensure that the accused comes to court.  It is never the duty of the accused to prove his innocence hence bail is presumed in his favor until the state proves otherwise.

Holding charge or remand of citizens in custody through high bail conditions or setting conditions impossible to meet is undoubtedly a violation of an accused person’s constitutional rights.  It is a punishment before conviction.  It perverts the criminal justice system.  If an accused person is eligible for release on bail, the judge must hold a hearing to determine the accused person’s ability to enter a bond through a reasonable surety. The bail bond must not be tied to an unreasonable amount. The underpinning principle being to provide an assurance that the accused will attend his trial.

It is not to sale justice to the highest bidder. Indeed it is a duty incumbent on the Judge to hold a further hearing in order to ascertain if there are non-financial conditions that would fulfill the requirements of law. The legitimate goal of bail being to secure the attendance of the accused at trial.

Under this framework if the prosecutors believe someone should be detained until his trial, the prosecutors will have to present evidence that meets the constitutional standards.

Magistrates must remember that there is a fundamental difference between the objective of bail proceedings and that of the trial. In a bail application the enquiry is not concerned with the question of guilt. A bail proceeding is therefore not a trial on merit.

Indeed it is advisable not to make orders or statements in a bail proceeding that could prejudice the case of the accused during the trial on merits. That is for the trial court. The focus at the bail stage is to decide whether the interests of justice permit the release of the accused pending trial. That in the main entails securing the attendance of the accused at trial and protecting the investigation and prosecution case against interference with witnesses.

The presumption is that the accused is entitled to bail unless his or her attendance at trial is in doubt or there is evidence that he or she might interfere with witnesses.  Magistrates must remember that the highest judicial responsibility is and must remain the enforcement of constitutional rights. It is worth repeating that excessive bail is unconstitutional. These conditions are overreaching to the rights and privileges of the citizens guaranteed in the constitution.

The right to freedom before conviction helps the unhampered preparation of a defense by the accused, and serves to prevent the infliction of punishment prior to conviction.

Unless the right to bail before trial is preserved the presumption of innocence secured after centuries of struggle would be meaningless.  Bail is excessive when it is set at a figure higher than the amount reasonably calculated to ensure the State interest.  We repeat here that only legitimate state interest is that the accused should stand trial and not interfere with witnesses.  Bail is not a mechanism for locking people up. It is not a form of punishment no matter how heinous the allegation might seem. An allegation is not a conviction and the loss of liberty cannot be based on just an allegation whose merits have not been passed through the crucible of cross-examination.

In summary, excessive bail conditions make a mockery of the presumption of innocence.  Article 18 (2) of the Zambian constitution, provides that everyone person who is charged with a criminal offence shall be presumed to be innocent until he or she is proved or pleads guilty. This principle is also reflected in all international Human Rights Conventions including the African Charter on Human and Peoples Rights and the International Covenant for Civil and Political Rights.  The presumption of innocence imposes on the prosecution the burden of proving the charge. It guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. It also ensures that the accused has the benefit of doubt and requires that persons accused of a criminal act must be treated in accordance with this principle.

A court hearing a bail application must do what a court must do, namely to bring reasoned and balanced judgment to bear in an evaluation, where the liberty interests of the accused are given the full value accorded by the constitution.

To bring some order to what is happening in the magistrates courts the High Court; judges need to be reminded that under section 337 of the Criminal Procedure Code, the High Court has supervisory powers over subordinate courts.  Section 337 provides: “The High Court may call for and examine the record of any criminal proceedings before any subordinate court, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, legality or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.” Under this power, where a magistrate has imposed outrageous bail conditions, the High Court does not have to wait for an appeal to remedy the situation.  The accused, handicapped by incarceration, often does not have access to a lawyer or the money to pursue an appeal. High Courts have powers to review and jettison such perverse bail conditions in the interest of the fundamental rights of the accused citizens.

The question the judge must ask is this – if it suffices to keep an accused in jail by mere accusation what becomes of the innocent, the unjustly accused and the common man whose voice might be muffled by the crowd of hirelings? A conscientious answering of this question is inescapable for the Zambian judiciary at this hour.


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