The Law Relating to Bail: Why Is It Difficult to Grant Bail to Some of the Offenses?

Abstract

The liberty of the individual must be guarded, protected and promoted but the interests of the society, of which the individual is component, must be taken into account if society is to move forward and flourish instead of stagnating and breaking apart”. Makame, J. (as he then was). Bail has its roots from both spiritual and human development concepts. It is the matter of law and practice that, any person who is related to the accused person may apply for the conditional release from the custody of the accused person. It is the right given to the suspect or the accused person to be released or be free from custody while waiting for further investigations and other criminal procedures to take place or to continue taking place. Such released must have a number of conditions which needs to be fulfilled by the suspect so as to be free from being detained, such as the presence of surety (ies). Failure to comply with such conditions may result the suspect to continued being detained. The Book of Genesis reports that the first crime as Adam and Eve's violation of habitation rules in the Garden of Eden. They were summarily banished from the premises. No criminal trial proceedings were required because the Omniscient Judge had full knowledge of all relevant facts. The next reported criminal act is the murder of Abel by Cain. In this instance, the Omniscient Judge held an inquiry as to what had happened to Abel. Disbelieving Cain's testimony, the Judge sentenced Cain to wander the Earth forever. Despite the summary nature of Cain's murder trial, it demonstrates the basic elements of modern constitutional due process: notice and opportunity to be heard. After the murder of Abel, responsibility for identifying criminals and imposing punishments passed to humankind. The Old Testament Books of Exodus, Leviticus, and Deuteronomy codify specific criminal acts and begin to outline procedures for determining guilt or innocence and imposing punishment. The Book of Numbers requires that Moses establish cities of refuge for persons awaiting trial on charges of manslaughter. These are the functional equivalent of today's bail laws. Numbers also states that persons accused of murder will stand before the congregation to be judged an early reference to the criminal proceeding of trial by jury. The reason as to why we have bail is the Constitutional Principle on Innocence. That ‘Let the accused to be free for a while as long as his guilty has not yet been established beyond reasonable doubt.’ No arbitrary arrest or detention. Bail must not be punitive by nature rather than assurance of accused attendance before the court of law when needed. In the case of Annette Pagnoule (on behalf of Aboulaye Mazou) v. Cameroon the African Commission held that detention without any charge being brought against the suspect constitutes arbitrary deprivation of liberty. In the case of Van Alphen v The Netherlands, the Human Rights Committee stated that “the term ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, and lack of predictability”. This right is given to any person. In the case of Tito Doughas Lyimo v. R, it was held that, “bail is a right and not a privilege”. However, there are some grounds which prevent the suspect or accused person from being given this right. It depends with the degree of the crime committed or the nature of the crime committed or sometimes the circumstances in which the crime was committed or the relationship between the suspect or accused person and the surrounding society. It also depends on the characteristics or behaviours of the said person. For instance, if his release may affect the criminal investigations and procedures to the extent of affecting the protection of other’s rights hence render to injustice other than justice to the victim(s). The same was argued in the case of Daudi Pete V DPP, 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. This paper presents some of the circumstances in which bail cannot be granted by a court, police or any other institution with competent jurisdiction to do so.