A Survey Report on the application of bail and bond in Zambia
Incarceration should be used only as a measure of last resort on the basis of proportionality and reasonableness. Many defendants around the world are unable to secure their right to freedom.
The Open Society Foundations’ work on promoting alternatives to detention takes as its point of departure that States have a responsibility to protect the fundamental rights of individuals not to unlawfully be detained; deprived of their liberty; or have their freedom of movement restricted. Further, that incarceration should be used only as a measure of last resort on the basis of proportionality and reasonableness. Many defendants around the world are unable to secure their right to freedom. They cannot challenge the grounds of their detention, contest unsubstantiated charges, or exercise their right to await trial in liberty. In some countries, the right to bail is enshrined in law, but seldom accessible to those without a lawyer. In others, demands for public safety lead politicians to support increasingly rigid penalties, and many offences are deemed “non-bailable”.
Against this backdrop, with support from OSISA and the OSF Human Rights Initiative (HRI), the Zambian Human Rights Commission undertook a comprehensive audit of the criminal justice system in Zambia. The findings revealed, among many other things, a high number of accused persons in detention, often for extended periods of time, on bailable offences. Under a follow up grant in 2014 the Commission sought to better understand the reasons for this problem with a view to improving the ability of detainees to access bail where appropriate. Research was conducted in all 10 provinces and included a sample of 2,168 respondents including inmates, magistrates, prosecutors, judges, police officers, prisons officials and the legal aid board. This process culminated in a report that reveals a number of areas where the system requires review. It was found for example that while both the Constitution and the Criminal Procedure Code provide for release on bail there are several inhibiting factors to the enjoyment of this right. The courts have unfettered discretion to grant bail except where the offences are deemed to be “non-bailable”. Accused persons are also entitled to apply for constitutional bail where there has been an inordinate delay in the adjudication of their case even for non-bailable offences. However, less than half of those surveyed had accessed bail. Reasons given were either that they were told that the offence was not bailable, that they had no working sureties, or that they had no knowledge of this right. The research also showed that those offered bail could seldom meet the stipulated conditions.
On the basis of the report findings, with ongoing support from HRI and OSISA, the Commission now plans to lobby key players in the criminal justice system to press for reforms to the law relating to bail and police bond. In so doing it intends to take advantage of the plans by the Zambia Law Development Commission (ZLDC) to review the Criminal Procedure Code (CPC) in 2015. The primary goal will be to ensure that detained persons are able to exercise their right to await trial in liberty through improvements to law and practice. More specifically the Commission will push for amendments to the CPC to do away with non-bailable offences; their argument being that deeming an offence ‘non-bailable’ and thus compelling incarceration awaiting trial inordinately punishes the accused even though he/she is legally regarded as innocent until proven guilty. It also takes away any discretion that the adjudicating officer may wish to apply based on the circumstances of the individual case. Clarity will also be sought on the law as regards the conditions that may be imposed for bail or bond as the research found that most judicial officers find the current iteration vague and are unsure of what they can lawfully impose. The Commission will push for the inclusion of provisions in the CPC that compel magistrates to address the issue of bail during initial proceedings and to provide guidelines on the determination of eligibility for bail. The latter will seek to mitigate draconian bail conditions e.g. the requirement that the accused provide two working sureties or the setting of the bail amount at a level that is clearly at odds with the economic circumstances of the accused. In addition to concrete changes to the law, the Commission wishes to sensitize the public and police officers on the right to bail and to dispel the widely held misconceptions that the denial of bail is intended as a punishment and that the granting or denial of bail is a yardstick of the extent of guilt or innocence of the accused.