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Monday, September 26, 2022

Know your rights part2: How an accused person can apply for court bail

It is the Constitutional right of a person accused of a criminal offense to apply for bail. This right flows from the presumption of innocence as provided for under Article 28(3) (a) of the 1995 Constitution (as amended) which states that; β€œAn accused person is presumed to be innocent until proven guilty or until that person has pleaded guilty”.

The Constitution in this Article recognizes the common law doctrine as a fundamental human right or an inherent human right. This therefore means that a person should only lose his or her freedom after he or she has been convicted.  

The Procedure to follow when one is applying for bail

An application for bail can be made orally by an accused or his or her lawyer/advocate in court. Alternatively it can be made in writing and should be supported by an affidavit.

An affidavit is a sworn statement made by someone setting out the reasons as to why court should consider accepting their application. This statement can be used against the accused person in case of failure to appear in court as required.

The court before granting bail to the accused person considers the following.

  • A surety/sureties. A surety is a person who assures the Court upon the grant of bail to an accused that he/she will return to court every time he is required. A surety should possess an introduction letter from the LC 1 Chairman of the area where they reside, a valid identity card indicating their place of work, business, or residence and a passport or driving permit can also be used for identification.
  • Security. This is the amount of money paid or property pledged to Court by the accused or his/ her surety as an assurance that he/she will appear for trial. Court issues a General receipt that is used for refund when the accused has fully complied with the bail terms and the case has been completed. 

When an application for bail is made by the accused or his/her lawyer and has presented his sureties, there are conditions followed by Court on whether or not to grant bail. These include the following:-

  • The nature of the offense the accused is charged with. The Law prohibits granting of bail to persons being charged with capital offenses.
  • The seriousness of the offense and how severe is the likely punishment for an offense? The court looks at whether the maximum penalty for the offense is death or life imprisonment and whether the accused is likely to run away from charges.
  •  The character of the accused, and whether the accused is likely to report to Court whenever required. The Court looks at whether the accused is a first-time offender or he/she was previously charged with criminal offenses.
  • Whether the accused has a fixed place of abode (residence) within the court’s jurisdiction.
  • Whether the accused is likely to interfere with State witnesses.

However, it is important to note that when court is to set conditions for the grant of bail, for example, payment of money by the accused then the money should not be so high as to make it virtually impossible for the accused to pay, nor should it be so low to undermine the purpose for the law on bail.   

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