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Danai Chirawu
What is bail?

After making a report to police about someone’s alleged criminal activity knowing that they have been arrested, most times provides a sort of comfort and reassurance in the justice system.

Many times this comfort is stripped away when you see the same person walking down the streets and resuming their lives, sometimes as early as the day they were arrested and other times months after they were convicted.

This is because when a person has been charged with a crime and arrested, they often have the option to apply for bail either in writing or verbally and if this bail is granted it means the accused person will be released from police custody pending trial.

What this involves is that they pay some money to the court or sometimes to the police as surety that although they have been released they will still appear in court for their trial.

The expectation is that throughout the duration of the trial they will be going to court from home.

Sometimes even after a person has been convicted or more simply put, found guilty of a crime, they may apply for bail pending appeal.

The frequently made assumption is that once someone is released on bail they are automatically not guilty of the crime they are being charged with.

This is far from the truth.

A person who has been released on bail may be found guilty of the crime and even sentenced to serve a jail term.

The option of bail is based on a legal presumption that one is innocent until proven guilty. It is understood that it is unfair on the accused person to start serving a sentence for a crime that they have not been convicted of as they have a right to freedom.

Bail is a temporary application which is not an indication of whether or not the accused is guilty of the crime they are being charged with.

Generally the accused person has to prove that they are not a flight risk, meaning that they will not run away before a judgment is passed and will appear for their trial.

They must also prove that they will not be interfering with the State witnesses and may have additional conditions such as reporting to a designated police station to prove that they are not planning to run away before a sentence is passed.

Some crimes such as theft (stealing grocery items from a store for example) are easier to prove that an accused person deserves to be granted bail.

If, however, a person is being accused of rape or murder or even both, then they have a more difficult case to prove during the bail hearing.

There are different types of bail that an accused may apply for depending on what stage they are on in their court procedures.

Police bail

Before discussing what this type of bail entails, it is necessary to note that only an assistant inspector, officer in charge or a police of a higher rank, can grant a police bail.

It can only be approved where a Magistrate or a Judge is not available, for example on weekends and on public holidays.

The nature of the charge should not be something as serious as rape, fraud or murder, among other crimes.

The accused is likely to be fined an amount which will be decided by the officer granting the bail and should leave hers/his passport as proof that they do not intend to flee the country.

If this bail at this stage is not granted, the option to apply for bail in court still remains.

Court bail pending trial

The difference between bail before trial and bail after trial is mainly that if a person applies for bail before the initial trial they are still presumed to be innocent therefore they have less to prove.

The accused at this stage can even make an oral application for bail.

In making an order for bail the court will be guided by conditions such as; seriousness of the crime, the maximum sentence one is likely to get if they are found guilty, the strength of the State case and whether the police have finished their investigations, whether or not they are a repeat offender, if they have previously made an application for bail and if they honoured the conditions, the possibility that they could run away before sentencing, the possibility that they could interfere with the State witnesses, if the trial is ready to commence and finally at their personal situation such as age, health and marital status.

The accused person is usually asked to surrender their passport and to report to a designated police station at specific times during the week.

They also need to provide an address of where they will be living while they await trial.

Again at this stage, the granting or dismissal of a bail application is not an indication of the accused person’s guilt or innocence in the matter at hand.

Sometimes after these same people resettle back into the community where the complainant resides, they torment the complainant and flaunt their freedom. Such behaviour can be regarded as breach of the bail conditions and a warrant of arrest can be issued against the accused.

The conditions where a convicted person can be granted bail differ in nature.

Bail pending appeal

There have been situations where after a man has been found guilty of rape and sentenced to prison, they were successfully granted bail pending appeal.

This same person reintroduces himself to the society by throwing a big party and subsequently mocking and even humiliating the complainant.

They resume their life in the same neighbourhoods and stores where the complainant also lives, much to the latter’s horror and because appeals may take time to be heard in court, it could be some time before they are called to appear for trial.

It is because bail pending appeal is an application for bail made after a person has already been found guilty of a crime and given a custodial sentence which they are appealing against.

Because the person has already been convicted, it is more difficult to prove that after tasting conditions of jail they will not use bail as an opportunity to run away.

Before the accused can even apply for bail they must show that there are reasonable prospects of success on appeal, what is known as leave to appeal.

This may be an appeal against either the sentence or the conviction.

When making this application, the judge has to be convinced that you have reasonable prospects of success if you appeal.

The fact that there are reasonable prospects of success on appeal do not automatically entail that bail will be granted.

As with bail pending trial, there are a number of factors the court looks at. If the accused has been given a long sentence, the court is less likely to grant bail because the possibility of fleeing as soon as freedom presents itself is high.

The judge also looks at the seriousness of the crime in making the decision of whether or not to grant bail.

If bail is granted the accused is likely ordered to pay a certain amount of money to the Clerk of court’s office, surrender title deeds and travel documents.

This also includes reporting to a designated police station at a specified time pending trial.

The aim is to reduce the risk of them absconding while they are not in police custody.

To curtail the convicted person’s ability to torment the complainant, sometimes the court can order that the person move away from a certain neighbourhood or place of business/employment.

Previous conduct if the person once either served a sentence or was granted bail will be useful to the court.

A convicted person has an opportunity to apply for bail pending appeal after an application for the same has been dismissed if, and only if there has been a material change of circumstance.

What happens to the money and assets paid or surrendered for bail?

If the accused or the appellant has been reporting to the designated police station religiously, has abided by all their bail conditions and has not fled or gone into hiding then they can recover their money and assets back.

This is regardless of whether or not they were convicted of the crime. However, if those conditions are not fulfilled, the State simply applies for confiscation of those items surrendered at bail.

Our criminal procedure has a clear blueprint on how one may be granted bail.

It even provides safeguards to ensure that the accused has their day in court. However this does not come without shortcomings.

It is true that there is no sure way of ensuring that one does not abscond.

A person may easily migrate illegally or go into hiding.

Granted, a warrant of arrest is issued against them. However once someone slips through the hands of justice, they may not be so easy to find. In some situations, the same people that society fears for all the crimes they have been purported to commit or convicted of committing are returned back into society.

These same people are expected to stay away from the State witnesses but there is really no guarantee that they will keep to themselves.

As a result people lose faith in the law and continue to live in danger and/or in fear.

What must be remembered after all has been said and done is that bail is not a temporary sentence by the court. It is simply a way to honour an accused person’s right to freedom and it is not something that should be granted at a whim.

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