Introduction
The Minister of Environment, Tourism and Hospitality Industry, Hon Prisca
Mupfumira, has been arrested on serious charges involving corruption and
abuse of office. When she appeared in court after being arrested her lawyer
applied for bail but the Prosecutor-General issued a certificate forbidding the
grant of bail for 21 days, so the magistrate accordingly refused it and remanded
her in custody for 21 days.
In this Court Watch we shall not comment on whether Hon Mupfumira is guilty
of the crimes alleged against her ‒ that will be for a court to decide in due
course. Nor shall we go into the question whether she should be released on
bail – that should be a consideration for a court.
What this bulletin will do is to question the constitutionality of a law which gives
the Prosecutor-General power to forbid the grant of bail to accused persons.
First though we should explain briefly what it means to be released on bail
pending trial.
What is bail pending trial?
Anyone who is arrested must be brought before a court within 48 hours, but
their trial can seldom take place so soon, so they have to be remanded ‒ that
is to say, ordered to come back to court at a later date. The court has to decide
whether in the interim the person must be kept in custody or whether they can
be released on bail, i.e. set free subject to conditions. These conditions usually
require the payment of a sum of money which will be forfeited if the person fails
to obey the order to come back to court.
The Constitutional Right to Bail
The granting of bail is a very important part of our criminal procedure because
it allows people who have been arrested to remain at liberty while waiting for
their trials to begin. It must be remembered that these people are presumed
to be innocent until they have been found guilty by a court, and until then they
should not suffer the indignity and hardship of detention in prison unless there
are compelling reasons justifying their detention. So important is the right to
liberty that section 50(1)(d) the Constitution enshrines the right of arrested
persons to bail in those very words:
“Any person who is arrested—
…..........
Court Watch 9/2019 The Right to Bail 31 July 2019
court will give judgment in their application before her 21-day detention comes
to an end.
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