Section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] reads:“Subject to this section and section 23, a person who is in custody in respect of any offence shall be entitled to be released on bail at any time after he or she had appeared in court on a ...
Section 117(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] reads:
“Subject to this section and section 23, a person who is in custody in respect of any offence shall be entitled to be released on bail at any time after he or she had appeared in court on a charge and before sentence is imposed unless the court finds that it is in the interest of justice that he or she be detained in custody.”
The use of the word shall be entitled to bail, in my view, denotes, that, where possible, the court should lean in favour of the liberty of the individual provided the interest of justice is protected by such a decision.
Section 117 of the Criminal Procedure and Evidence Act clearly spells out, that, an accused person is entitled to bail unless the court finds that it is in the interest of justice that an accused person should be detained in custody. The detention can be in the interest of justice if one or more factors mentioned in section 117(2)(a) and (b) of the Criminal Procedure and Evidence Act is or are established against him.
Section 117(2)(a)–(b) of the Criminal Procedure and Evidence Act reads:
“(a) Where there is a likelihood that the accused, if he or she were released on bail, will;
(i) Endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or
(ii) Not stand his or her trial or appear or receive sentence; or
(iii) Attempt to influence or intimidate witnesses or to conceal or destroy evidence; or
(iv) Undermine or jeopardise the objectives or proper functioning of the criminal justice system including the bail system; or
(b) Where, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.”
Subsection 3(a)–(e) goes on to outline some factors, among others, which the court may take into account on determining whether or not the applicant is a suitable candidate for bail.
If one or more factors alluded to in section 117(2) of the Criminal Procedure and Evidence Act are established, then, the applicant ought not to be released on bail; if, on the other hand, such factors are not established, then, the applicant ought to be admitted to bail.
The court must therefore endeavour to seek to establish a balance between the interest of administration of justice and the individual liberty.
In Attorney General v Phiri 1987 (2) ZLR 33, REYNOLDS J lucidly underscored that the fundamental principle governing the court's approach to applications for bail is that of upholding the interest of justice.
This requires the court, as expeditiously as possible, to fulfil its function of safeguarding the liberty of the individual while at the same time protecting the interest of justice.
The questions that are to be considered are; whether the applicant will stand or evade trial; whether or not the applicant will interfere with witnesses or investigations; whether or not the applicant will commit other offences; and whether or not release will endanger public peace and security, to name but a few.
