Bail, bailable and non-bailable offences

Bail is to set at liberty a person arrested or imprisoned on security being taken for his appearance on a day and a place specified if so required.[1]

Bail can also be defined as an agreement between the accused (his sureties if any) and the court that the accused will pay a certain sum of money fixed by the court, should he fail to appear to attend his trial on a specified date.[2]

Also bail can be defined as an agreement entered into between an accused person and the court or police for releasing from custody and entrusting him to the custody of the surety(s) upon certain conditions pending the finalization of court proceedings.[3] The accused person he will pay to the government a certain some of money fixed by the police or court should he fail to attend his trial on a specified date. When an accused person is granted bail he is not completely free, but is only released from the custody of the law officers. In order to ensure the attendance of the accused before the court or at the police station. Bail is usually attached with some conditions; the conditions may be in the form of bond, recognizance and sureties[4].

Constitution is the system of laws, rules, customs, conversion which defines how the society is organized. It is the mother law of the land if there is any law enacted which contravenes it will be declared null and void. And Criminal Procedure Act CAP 20 R.E 2002 which is referred hereunder as CPA; is the principle legislation enacted by the parliament to show the mode of carrying out of the spirit of Criminal Law.

There two types of bail which are; police bail and court bail. Police bail is granted when an accused person has been arrested and is in the police custody pending on investigation of matter alleged to him and waiting to be sent to the court of law to answer charges as provided under section 64 of CPA[5].

Another type is Court bail which is divided into two categories that are bail pending trial as provided under section 148 of CPA[6]. And bail pending appeal which is provided under section 368 (1) (a) (I) of CPA[7].

The main purpose of bail has always been to let the accused be free for a while pending his trial as long as his  guilty has not yet established beyond reasonable doubt.[8]

As a general rule, bail is a right and not a privilege of an accused person which is drawn from the concept of presumption of innocence that every person is presumed to be innocent until contrary is proved by the competent court. This concept of presumption of innocence is stipulated in the Constitution of United Republic of Tanzania 1977 as amended from time to time under Article 13(6) (b).

Also Universal Declaration of Human Rights of 1948 under Article 9 provide that “No person shall be subjected to arbitrary arrest, detention or exile” together with Article 11(1) provide that “every one charged with a penal offence has the right to be presumed innocent until proved guilty according to the law...”[9]

Therefore bail is considered to be right of a person whose liberty is at a stake pending the due process of law. As a right then, bail should not be refused without sufficient reasons. This is supported with reference to case law as follows;

In the case of PETER V R[10] Biron J stated inter alia that man whilst awaiting trial is as of right entitled to bail as there is presumption of innocence unless the contrary is proved.

Likewise, in the case of TITO DOUGLAS LYMO V. R[11] Mwaisumo J indicated clearly that bail for the accused person is seriously treated as a right and not as a privilege unless the court is convinced that to grant bail will defeat the end of justice due to; failure of an accused person to appear before the court to stand his trial or by granting bail the accused person would temper with the investigation or with exhibits which are to be tendered before the court at the time of trial.

Also in the case of DAUDI PETE V DPP[12] the court held that bail is a right and not a privilege and therefore Section 148 (5) (e) of the Criminal Procedure Act which denied bail to an accused of armed robbery was declared unconstitutional since it violates human rights.

Therefore, the release on bail is crucial to the accused as the consequences of pre-trial detention are grave. If release on bail is denied to the accused, it would mean that though he is presumed to be innocent until guilty is proved beyond reasonable doubt he would be subjected to the psychological and physical deprivation of jail life.

On addition, in the case of ABDALLAH NASSORO V. R.[13] where Willison J (as he then was) while dealing with similar application (bail) made the following observation “English Court have frequently laid down that the proper test of whether bail should be allowed as a probability that the accused, if granted bail, will appear to take his trial not to seek avoiding justice.”

However, it could be seen that the doctrine that bail is a right for an accused person and not a privilege is derogated under section 148(5) (a) of CPA which provide for non bail able offences including murder which is established under section 196 of Tanzania Penal Code[14] also under section 197 provides for murder punishment, and Treason established under section 39(1) (a) and (39) (1) (b) provide for treason punishment. Treason is also established under Article 28(4) of Constitution of United Republic of Tanzania 1977 as amended from time to time to be the gravest offence against the United Republic.

Section 148(5)(a) of CPA in real sense does not contravene the constitution by denying bail to the accused of murder and treason since the bail for an accused is not granted without restrictions. This section of 148(5) (a)[15]  get its validity from the constitution itself where as under Article 15(2) (a)[16] which provide that though a person has a right and freedom to live as free person, it should be in accordance with procedures prescribed by laws. In which Criminal Procedure Act is included under Tanzania laws.

Furthermore denying bail to an accused person does not necessarily amount to treat such accused person like a convicted criminal. This was stated in the case of GEOFFREY ELIAWONY AND THREE OTHERS V. R.[17] the court held that denying bail to an accused person does not necessarily mean to treat such a person like a convicted person, the application on granting bail dismissed.

Therefore the following are the essentiality of having section 148(5) (a) of CPA; which denies to grant bail to the accused of murder and treason as explained here under;

To start with, the seriousness of the Offence and its punishment. It is common sense that human beings are normally tempted to flee when the prescribed punishment is severe for what they are accused of. It is also rule that the serious the offence (murder and treason) the severe the punishment (death penalty), hence the greater the temptation to flee the course of justice of the accused. Therefore serious nature of the offence and severity of punishment may lead the accused to jump bail if admitted to. This is illustrated in the case of R. V. AHAMED [18] it was held by Said J. that “the offence which Mr. Ahamed is charged with is serious… to jump the bail if is granted.

Another reason for having section 148 (5) (a) of CPA is for the safety and protection of the accused person. For accused’s own protection and safety it is of the view that the life of the accused is in danger when the victim(s) relatives or friends will revenge for what the accused did to them. As it was shown in the case of    R. V. ATHUMAN ALLY MAUMBA[19] in which the appellant was refused bail by district court because having seen that appellant safety would be better protected if he remain in custody. The same decision was made in the case of FREITA WAlTER AND THREE OTHERS V. R[20] where the accused denied bail for their safety and Protection.

Generally, as it is stipulated under Article 30(2) of the constitution[21] “this Article confers jurisdiction and recognize other laws enacted by the Legislature and declare that it should not be taken as a grant to declare any law invalid claiming on provisions which provide for fundamental basic rights including Article 13 and 15”. Therefore section 148(5) (a) of CPA does not contravene the constitution by virtue of Article 30(2) and 31(1). And if it could have been contravening the constitution, the court of law in Tanzania could have declared it to be null and void by the virtue of Article 64 (5) of the constitution of United Republic of Tanzania of 1977 as amended from time to time, which provides that any law contravening with any provision of constitution is void.

REFERENCE

STATUTES

The Constitution of the United Republic of Tanzania of 1977

CAP 2 R.E 2002

The Criminal Procedure Act CAP 20 R.E 2002

The Tanzania Penal Code CAP 16 R.E 2002

MANUAL

Mchome, S.E, CRIMINAL PROCEDURE (1995), 1^ST Edn, the Open University of Tanzania, Dar es salaam

BOOKS

Peter, C.M, (1999) HUMAN RIGHTS SELECTED CASES AND MATERIALS, Germany.

                               

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[1] Concise Law dictionary.

[2] Mchome, S.E, Criminal Procedure Open University Manual, pg 95

[3] Peter, C.M, Human Rights Selected Cases and Materials, pg 527

[4] Ibid

[5] Cap 20 R.E  2002.

[6] Ibid.

[7] Ibid.

[8] Mchome, S.E, Op Cit, pg 95

[9] Universal Declaration of Human Rights Resolution 1217 A (111) of 10 December 1948

[10] [1971]HCD 391

[11][1979] LRT 55

[12][1993] TLR 22

[13][1952] LRT  289

[14]Cap 16 R.E 2002.

[15]Criminal Procedure Act  Cap 20 R.E 2002

[16]Constitution of United Republic of Tanzania 1977

[17][1998]  TLR   190

[18][1970]   HCD   342

[19][1988]  TLR  114

[20][1991]  TLR    62

[21]Ibid