Bail and Bond in Zambia

Challenges and Recommendations considering Legal and Administrative

reforms

Ms. Kristen Petersen

@ACJReform
Introduction
 The Constitution of Zambia guarantees fundamental rights and
freedoms including pre-trial rights.
 Overcrowding remain a challenge in detention facilities –excessive
use of pre-trial detention identified as a problem.
 Excessive and extended pre-trial detention violates a number of
rights, key among are the right to liberty, dignity, a fair and speedy
trial, and to be free from torture and other ill treatment.
 The implementation of fair and adequate bail and bond systems and
provisions could provide substantial relieve to this phenomenon.
Overview of the presentation
 Zambia has a functioning bail and bond system BUT there seem to be
challenges with implementation by police and courts / lack of certain
bail mechanisms.
 My presentation is divided into the following areas:
Importance of legislative bail provisions
Important facets of good bail systems
Brief overview, analysis ,shortcomings of Zambia’s Legislative
Framework on Bail
Recommendations and Conclusion
Importance of legislative bail provisions

Presumption of
Liberty Fair Trial Rights
Innocence

Pre-trial detention Freedom of

as a last resort movement
Important facets of good bail systems
General provisions on bail must be clear, concise and unambiguous and should
clearly define bail procedures and categories of bail and bonds available.

Information on bail and right to apply for bail at first court appearance

Reasonable and just factors to guide officials in executing bail decisions

Reasonable conditions set when granting bail /bond
Bail amounts and sureties set should be just and equitable and should not exceed
the economic capabilities of the accused
Non-bailable offences violates the presumption of innocence
Important facets of good bail systems
Withdrawal of bail by the State : there should be clear and legitimate conditions
and guidelines for withdrawing /revoking bail
A bail system with legislative prescripts that would prevent lengthy undue delays in
pre-trial detention .i.e. pre-trial custody time limits, mandatory periods of
commencement of trial
In the case of above, a mechanism in place to automatically review the pre-trial
custody time limit of the accused

A system with an appeal process that allows one to appeal (a) a bail decision and
(b) to apply for bail pending an appeal of case
Analysis: Zambia
General  Legislative provisions - Criminal Procedure Code of Zambia (CPC)
Provisions  Functioning bail and bond system - extensive provisions that are clear,
concise; forms of bail /bond defined –that are generally clear
 The CPC has a 24 hour rule within which an accused must be brought to
court if police bond was not granted unless the offence is serious. Despite
this, there is evidence which suggests non-adherence to this rule.

Police Bond (or  The CPC makes provision for police and court bail at any time throughout
other bond the course of proceedings provided sufficient sureties are provided.
besides bond)  Despite legislative provisions allowing for police bond at the discretion of a
police official for bailable offences, in practice, it seems that bail is
generally granted by courts
Analysis: Zambia
Right to apply for  There is a right to apply for bail at first instance for bailable offences
bail at first
appearance

Factors courts take  Such as the possibility of the accused absconding or interfering with
into account when witnesses, the severity of the crime or punishment, whether the
considering bail accused is employed or not, is capable of providing credible sureties of
fixed abode, the independence of sureties if bail were to be granted
and whether the possibility exists that the accused will fail to attend
court proceedings
Analysis: Zambia
Conditions set for  The payment or deposit of sufficient sureties (money or property),
bail/bond  the condition that the accused must attend at the time and place
mentioned in his or her bond; [123 (2) CPC]
 the court or officer has a discretion to impose any other condition as
may seem reasonable and necessary. [123 (2) CPC]
 Others: the accused must not engage in any criminal activities, interfere
with witnesses, keep the peace or be of good behaviour.
Analysis: Zambia
Provision for Before any person is admitted to bail or released on his own recognizance, a
sureties bond, for such sum as the court or officer, thinks sufficient, shall be executed
by such person and by the surety or sureties, or by such person alone. [Article
Bail Amounts 123 (2), CPC.]
 Despite legislation requiring that bail amounts fixed not to be excessive,
there seem to be a problem in respect of the required sureties that are being
invoked by police authorities- practices of requiring 2 working sureties,
preferably civil servants.
 Violates accused persons’ right to apply for bail which is affordable
 Considering alternatives to issuing of sureties / payment of cash bond/bail :
the release of an accused on warning
Analysis: Zambia
Non-  Yes. Article 23 (1) CPC. Non-bailable offences includes murder, treason, any
Bailable offence carrying a mandatory capital penalty; misprision of treason or
Offences treason-felony; aggravated robbery; theft of motor vehicle, if such person has
previously been convicted of theft of motor vehicle.
 The existence of non-bailable offences in the Zambian criminal justice system
violates this notion despite constitutional protections guaranteed in the
Zambian Constitution
 The enforcement of non-bailable offence provisions treats people unfairly; it
places persons in pre-trial detention as if they are already guilty or convicted
of the alleged offence and denies persons their right to liberty and restricts
their freedom of movement.
 Constitutional Bail provisions in Article 13 (3) (b) are not being used.
Analysis: Zambia
Legislative  The CPC contains no mandatory legislative time limit provisions for pre-trial
time limits detention
for pre-trial  Constitutional bail provisions exists which requires one to show that there has
detention been an inordinate delay which is not due to the fault of the accused, but this
seems not to be effected and there is no automatic review mechanism which
triggers this mechanism.
 Evidence suggesting constitutional bail provisions are not being utilised and
accused persons linger in pre-trial detention for lengthy periods of time.
Recommendations and Conclusion
• Repeal all provisions on Non-bailable offences.
• Enhance police understanding on the fundamental objectives of bail
and bond and ensure police bond are regularly utilised in less serious
offences. Consider defining in the law or national directives/policy,
categories of crimes where police bond may or may not be executed.
• Ensure compliance by the police with the legislative time limit of 24
hours within which an accused must be brought to court, in cases
where police bond is not executed.
• Restrict police practice requirement of working sureties. Consider
restricting in law or national directives/policy what sufficient sureties
are for categories of offences to avoid this practice.
Recommendations and Conclusion
• Enhance judicial officials understanding on the main purpose of bail and
ensure judicial officials use alternative release mechanisms, such as release on
warning.
• Alternatively, and in addition to the above, consider adding a provision in the
criminal code which automatically triggers the review by the judicial official, to
reflect whether bail was previously granted, and thus enforcing the judicial
officer the opportunity to reconsider the bail amount and or release the
accused on warning.
• Implement mechanisms to ensure that the provisions in Article 13 (3) (b) of the
Constitution are regularly invoked in cases of inordinate delay in relation to
people on remand by implementing provisions in law that would trigger an
automatic review of these cases.
Thank you