Deny armed robbers bail at all costs

19 Jan, 2022 - 18:01 0 Views
Deny armed robbers bail at all costs File Pic: Musa Taj Abdul (second from right) and other suspected armed robbers at Harare Magistrates court.

The Herald

Dr Masimba Mavaza Correspondent 

Bail is a temporary release of an accused person while awaiting trial. This is when the person arrested for a criminal offence and awaiting trial can be allowed to go home for free or after paying a fee until they are tried for the offence.

After arresting a person, police must bring him or her to a court usually before a magistrate within 48 hours.

This enables the magistrate to decide whether there is enough evidence to justify putting them on trial for the offence and, if there is, whether the person should be kept in prison until the trial or should be released and allowed to go free.

If the magistrate decides the suspect should be released, he or she normally imposes conditions.  The conditions ensure the person will stand trial and that he or she will not in the meantime interfere with witnesses or commit further offences.

Persons released in this way are said to be “released on bail”.

The liberty of the individual must be guarded, protected and promoted.

However, the interests of the society, of which the individual is a component must be taken into account if society is to move forward and flourish instead of stagnating and breaking apart. Zimbabweans have called on the judiciary to take a second look at the practice of granting bail to suspected armed robbers.

The phenomenon of granting bail to suspected armed robbers is frustrating the work of the police and placing the general public in danger.

Many people believe that sections of the Criminal Code, which bar armed robbery suspects arrested with offensive weapons from being granted bail are not being adhered to.

A court must balance all these considerations when deciding whether or not a person should be released on bail, and must weigh them fairly in the interests of justice.

The heaviest consideration of all, however, is that persons awaiting trial must be released unless there are compelling reasons for detaining them.
This is mandated by the Constitution itself.

Some further points must be made: Except where a person is alleged to have committed very serious crimes against public security, the prosecution bears the burden of showing that there are compelling reasons for denying him bail.

This is because the person is presumed to be innocent.

It is also mandated by section 115C (2) of the Criminal Procedure and Evidence Act.

Bail has its roots from both spiritual and human development concepts. It is the matter of law and practice that, any accused person may apply for the conditional release from custody.

It is the right given to the suspect or the accused person to be released or be free from custody while waiting for further investigations and other criminal procedures to take place or to continue taking place.

Such released people may have a number of conditions, which need to be fulfilled by the suspect, so as to be free from being detained, such as the presence of surety (ies).

Failure to comply with such conditions may result in the suspect being in continual detention.

Bail is a constitutional right, but many people have called for the review of the country’s laws to enable magistrates and judges to deny it to armed robbers.

Many have also suggested imposing life sentences on armed robbers and other hardened criminals arguing that this would incapacitate them.

It is true that armed robbery is a security concern, it has negative impacts on tourism in Zimbabwe.

These crimes range from armed home invasions, highway robberies, vehicle break-ins, and street crimes. Some of these incidents result in serious injuries and, in some cases rape and murder.

There has been a sharp rise in armed robbery and drug trafficking in the country. This situation lies squarely under the feet of the granting of bail and early releases of offenders by the courts.

This should be taken seriously. Crime is a cancer, which needs to be dealt with before it continues to sow enough seeds of discontent, frustration, fear, panicking to wreck the democratic foundation- which has been laid by the new dispensation.

When some of these armed robbers are given hefty bails, they somehow have the money, pay and are released. Once free, they regroup and then attack innocent, hardworking and bread-winning victims.

Where they get their weapons constantly to commit such atrocious crimes is beyond us all.

Armed robbers should be placed in custody until their court dates are set and then sentenced.

The public now thinks that the police are so corrupt that people have lost faith in them.

Because of various reasons, some people are afraid of tipping off the police about any criminal hideouts. But this is not the true picture.

Police have worked extremely well and scored valuable points in the fight against robbers. They are frustrated by granting of bail to the murders.

The Book of Genesis reports that the first crime as Adam and Eve’s violation of habitation rules in the Garden of Eden.
They were summarily banished from the premises.

No criminal trial proceedings were required because the Omniscient Judge had full knowledge of all relevant facts.

The next reported criminal act is the murder of Abel by Cain. In this instance, the Omniscient Judge held an inquiry as to what had happened to Abel.

Disbelieving Cain’s testimony, the Judge sentenced him to wander the earth forever.

Despite the summary nature of Cain’s murder trial, it demonstrates the basic elements of modern constitutional due process: notice and opportunity to be heard.

After the murder of Abel, responsibility for identifying criminals and imposing punishments passed to humankind.

The Old Testament Books of Exodus, Leviticus, and Deuteronomy codify specific criminal acts and begin to outline procedures for determining guilt or innocence and imposing punishment.

The Book of Numbers requires that Moses establish cities of refuge for persons awaiting trial on charges of manslaughter.

These are the functional equivalent of today’s bail laws.

Numbers also states that persons accused of murder will stand before the congregation to be judged an early reference to the criminal proceeding of trial by jury.

The reason as to why we have bail is the constitutional principle on innocence.  That ‘Let the accused to be free for a while as long as his guilty has not yet been established beyond reasonable doubt.’ No arbitrary arrest or detention.

People who are awaiting trial may be released on bail whenever possible, for several reasons.

They have not yet been convicted of an offence and so the law presumes them to be innocent.  Quite a large number of them are in fact innocent. It would be unjust to imprison them before their trial.

Allowing them to go free pending trial enables them to consult their lawyers and prepare for trial.  It is difficult to do this from prison.

Keeping people in prison is expensive for the State and deeply humiliating for the people concerned.

Above all section 50(1)(d) of the Constitution states that anyone who has been arrested:“must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention”.

In other words, they must be granted bail unless there are compelling reasons not to do so.

On the other hand, it has to be accepted that many people awaiting trial will be convicted, that some may be tempted to abscond, others may commit further offences, and some may try to interfere with witnesses and evidence.

If the likelihood of any of these happening is strong enough it may amount to a compelling reason for keeping the persons in prison.

Bail must not be punitive by nature rather than assurance of accused attendance before the court of law when needed. We must realise that detention without any charge being brought against the suspect constitutes arbitrary deprivation of liberty.

This is what people should guard against.

But when the suspect is charged then if the charge is robbery bail must never be automatic. In law we must remember that the term ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, and lack of predictability.

This right is given to any person and we must know that bail is a right and not a privilege.

However, there are some grounds which prevent the suspect or accused person from being given this right.
It depends with the degree of the crime committed or the nature of the crime committed or sometimes the circumstances in which the crime was committed or the relationship between the suspect or accused person and the surrounding society.

It also depends on the characteristics or behaviours of the said person. For instance, if his release may affect the criminal investigations and procedures to the extent of affecting the protection of other’s rights hence render to injustice other than justice to the victim(s).

In Zimbabwean legal system, bail is a right and not a privilege. Therefore, sections of the law which deny bail to an accused of armed robbery will be unconstitutional since it violates human rights.

The decisions on bail in criminal proceedings represent an important stage in the prosecution process.

The results of these decisions can have far-reaching consequences for victims of crime and the public in general.

From the viewpoint of the defendant, bail decisions made by a court can result in the deprivation or restriction of liberty for a substantial period of time.

It is for these reasons that the prosecution has included the way in which these decisions are made as a benchmark of the quality of our case management and preparation in our criminal trials.

Opposing bail where it is appropriate to do so, taking account of the risk posed to victims, the public and the course of justice is the skill the prosecutor must possess.

It is vital that prosecutors recommend the appropriate course of action to a court in connection with bail.

Sufficient comprehensive information is available to a court in connection with the decision whether or not to grant bail. But in doing all this, the court must try to think about the trauma suffered by the victim if robbers are granted bail.

It is more reasonable for robbers to be blessed with toughness. Granting them bail is a frustrating measure and it must not be done.

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