Denial of bail: Is it a violation of the right to personal liberty?

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Bwembya, Stephen
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Crime is a very undesirable vice in all societies of the world, Zambia inclusive. Capital crime is even worse. It is because of crime that: innocent people get murdered or maimed unjustly on account of properties or assets which they have laboured throughout their lives to possess; democratically elected governments are taken over by force; drugs are peddled that have inflicted very drastic effects to the lives and health of well meaning members of society including children and women; to mention but a few negative effects of crime. It is for this reason that many legislatures have come up with statutory provisions that are primarily aimed at deterring crime. One such being the enactment of statutory provisions that preclude bail to crime suspects of certain crimes, e.g., murder, treason, misprision of treason, aggravated robbery, drug trafficking, etc. In as much as it is important to come up with efforts to stamp out capital crime completely from the society or to deter it, it is important to do so in line with the supreme law of the land - the Constitution. The Zambian Constitution, for instance, provides for the presumption of innocence for any person accused of committing any crime until being pronounced guilty by the court of law. This provision must at all times be adhered to even in the face of dealing with a capital crime suspect. The Constitution at the same time provides for the availability of bail to suspects of all types of crimes, capital offences inclusive, except that it is not given out as a matter of right, but that it is at all times in the court's discretion. There is no provision in the Constitution where the discretion of the grant or denial of bail is taken away from the courts to the Legislature as is the case with the subordinate legislations that deny bail. In view of the foregoing, the following questions need answers: Does it mean that capital crimes can only be deterred by statutorily precluding bail from a suspect? What about stiffening penalties to people convicted of capital crimes by courts of law: is that not going to serve as effective deterrence? The Constitution in Article 94(1) provides for original and unlimited, inter alia, criminal jurisdiction of the High Court. The question to pose here is that of whether statutory provisions that preclude bail do not contravene the Constitution by taking away the discretion to hear and determine criminal matters, from the High Court to the
Bail-Zambia , Right to liberty