Criminal law - NENJY ||NYAMAPFENE LAW PRACTICE

1. Section 50(1) of the Constitution provides that a person arrested or detained must:

be informed at the time of arrest of the reason for the arrest;
be permitted, without delay—
at the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and
at their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice, and must be informed of this right promptly;
be treated humanely and with respect for their inherent dignity;
be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention; and
must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.

2. Section 50(4) provides that a person who is arrested or detained for an alleged offence has the right—

to remain silent;
to be informed promptly of their right to remain silent and of the consequences of remaining silent and of not remaining silent;
not to be compelled to make any confession or admission; and
at the first court appearance after being arrested, to be charged or to be informed of the reason why their detention should continue, or to be released.

3. Section 50(5) provides that a person who is detained, including a sentenced prisoner, has the right—

to be informed promptly of the reason for their being detained;
at their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;
to communicate with, and be visited by a spouse or partner, a relative, the person’s chosen religious counselor, the person’s chosen legal practitioner, the person’s chosen medical practitioner and subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of the person’s choice;
to conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment;
to challenge the lawfulness of their detention in person before a court and, if the detention is unlawful, to be released promptly.

Did you know that an accused person is entitled to bail as a matter of right, a constitutional right? Bail is a way of allowing a person who has been remanded for trial at a later date to remain at liberty until his or her trial date. In terms of Section 50 (1)(d) of the Constitution any person who is arrested must be released unconditionally or on reasonable conditions pending a charge or trial unless there are compelling reasons justifying their continued detention. The High Court [1]ruled that the old position where the onus or duty was on the accused person to show on a balance of probabilities why it was in the best interest of justice that he or she should be freed on bail ,is no longer applicable.

The Constitution ,2013 made the right to bail a constitutional right hence the onus or burden of proof shifted from the accused person to the State(prosecutor) who should establish compelling reasons why an arrested person should be denied and remain in custody pending trial. Where the State fails to show compelling reasons an arrested person is entitled to, as of right, to be released either unconditionally or on reasonable conditions pending trial.

Compelling reasons justifying refusal of bail(detention)

As highlighted above it is the duty of the State to show reasons why an accused person can be denied bail. The compelling reasons includes the following

That the accused (suspect)person is likely to abscond trial
That the accused (suspect) is likely to interfere with the evidence e.g. by intimidating witnesses
That the accused(suspect) is likely to commit further crimes if released

In determining the application, the court must balance the interests of justice against the right of the accused to bail. Bail can be granted by way of depositing a sum of money or by surrendering title deeds of an immovable property. The essential condition of bail is that the accused must attend court at the appointed dates and places until the proceedings against him or her are over. The court may include other conditions which are ordering the accused to surrender his or her passport, reporting to a police station at regular intervals and prohibition against his or her communication with witnesses for the prosecution. Bail conditions can be amended or withdrawn by the court if new facts are brought to the attention of the court. In the event that the accused person breaches the bail conditions the court can order the person to be committed to prison and if accused absconds trial a warrant of arrest will be issued against him or her and the bail deposit will be forfeited to the State.

This article is for general information purposes only, legal advice and legal representation should be sought in a bail application matter.

[1] The case of Munsaka vs The State HB-55-16

Category: Criminal law

Constitutional Rights Of Arrested Or Detained Persons – Section 50

Right to Bail

Compelling reasons justifying refusal of bail(detention)