03 Dec 2023

Minister of Justice, Mr Machana Shamukuni has tabled before Parliament Bail Bill No. 19 of 2023, which seeks to answer public outcry regarding suspects who contiues  to commit crimes while on bail.

Presenting the Bail Bill of 2023, Mr Shamukuni said the objective of the bail was to provide for circumstances under, which a suspect or an accused person may be granted or refused bail.

Mr Shamukuni said in 2019, a Bail Pitso was convened at which various challenges surrounding bail were discussed.

He said the concerns included that over the years there had been widespread public outcry that accused persons were granted bail with relative ease.

He said the Pitso also established that the law obscured in favour of the accused and that bail was granted with little or no consideration for the safety concerns of victims and witnesses of the crime.

Additionally, the Pitso reiterated that persons accused of serious offences were granted bail and went on to commit similar offences while on bail.

The minister said one of the recommendations of the Pitso was to come up with a Bill to have a law on bail codified in one enactment for ease of reference.

Therefore, he said Bill No. 19 codifies the law as well as addresses the mischiefs surrounding bail by laying down factors to be considered by the courts on whether to grant or refuse bail.

Mr Shamukuni said part nine of the Criminal Procedure and Evidence (CP&E) Act makes provision for bail setting out procedures and processes to be followed from when an accused person makes an application for bail until it was granted or refused.

“Every person committed for trial or sentenced in respect of any offence except treason or murder may be admitted to bail at the discretion of a magistrate.

Any person who is aggrieved by the refusal of a magistrate to admit him/her to bail may appeal to the High Court,” said Mr Shamukuni.

He said part of the CP&E Act was read against Chapter 2 of the Constitution, which guaranteed fundamental rights and freedoms of an individual subject to the respect for the rights and freedoms of others and to the respect of public interest.

He said sections 5 and 10 of the Constitution made provision for the protection of personal liberty as well as providing for criminal trials within a reasonable time.

“In terms of section 5 (2) of the Constitution if a person is arrested upon reasonable suspicion of him/her having committed or about to commit a criminal offence and a person is not tried within a reasonable time, the person shall be released either conditionally or upon reasonable conditions to ensure that such a person appears at a later date for trial or for proceedings preliminary to the trial,” he said.

Mr Shamukuni said the Bail Bill contained provisions of section 90 and Part 9 of the CP&E Act on bail as well as factors that the courts had previously considered in refusing or granting bail.

Furthermore, he said as the Constitution was the supreme law, the bill codified factors to be considered by balancing the rights of the accused person and public interest.

He said the accused person’s fundamental right to liberty and accused person’s fundamental right to a fair trial within a reasonable time should be balanced with the delay in completing the investigations, public interest and interest of victims and witnesses of the crime.

Mr Shamukuni said victims and witnesses of crimes should also be afforded an opportunity to be heard and responded to before granting bail, especially in domestic violence cases and sexual offences.

He said there must be serious consideration of level of risk posed to a victim or witness or the nature and seriousness of the offence.

“Whether the accused was a repeat offender, including the accused character, his history and record in relation to previous grants of bail will also be taken into consideration,” he said.

Mr Shamukuni also said conversely, the security of the accused person must be considered on whether to release him/her on bail or there may be a risk of retaliation by the relatives of the victim of the crime he/she was alleged to have committed.

He said the Bill was divided into nine parts of which part one provided for the preliminaries while part two provided for the constitutional principles upon, which bail was premixed and circumstances under, which bail may be granted of refused.

He said part two further provided for what was expected from the accused person while on bail.

He said the part made it mandatory for the judicial officers not to release the accused person if one of the stated grounds was established like in a case where the accused was likely in the eyes of the court to commit offences like murder, stock theft, motor vehicle theft, rape and defilement amongst others.

Mr Shamukuni said part four provides for the rights of the complainants in cases of rape and other offences the right to have a say in the bail proceedings by allowing them an opportunity to give to the prosecution any information that may be deemed useful in determining to grant or refuse bail or in determining the conditions of recognisances. Ends