Bail application in Zambia case must proceed
Bail delays in 'carnal knowledge' case must end
The Southern African Litigation Centre (SALC) and the Open Society Initiative for Southern Africa (OSISA) have expressed their deep concern at the Zambia High Court’s delay in hearing the bail application of the two Kapiri men accused of ‘unlawful carnal knowledge’, who have been in detention since May 2013.
“It is unacceptable that these two young men have been in custody for almost five months,” said Chivuli Riva Ukwimi, OSISA’s Marginalised Populations Coordinator. “The High Court’s delay in attending to their bail application, in addition to the numerous delays in their trial, casts a serious shadow over the criminal justice system in Zambia.”
On 22 May 2013, the Kapiri Magistrates Court denied bail to the two men, who had pleaded ‘not guilty’ and whose trial had not yet started, for spurious reasons. The accused’s lawyers have made repeated attempts since then to apply for bail in the High Court, which seems intent on never hearing the application. On the last occasion, a Kabwe High Court judge postponed the bail application for a further five weeks – without giving reasons.
“This case is one of many in Zambia that illustrate a disregard for the constitutional rights of accused people and the principles underlying the provision of bail,” said Anneke Meerkotter, a lawyer at SALC.
Zambia’s constitution enshrines the right to personal liberty, dignity and freedom from inhuman treatment. Every accused person has the right to a fair trial, which includes the right to be presumed innocent. However, it is estimated that one in every three people in prison in Zambia are pre-trial detainees.
“In a bail application the presumption of innocence is supposed to operate in favour of the applicant so every person arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit – and subject to reasonable conditions,” said Meerkotter. “There are no rationale reasons why the two Kapiri men should not have been granted bail.”
Section 123(3) of the Criminal Procedure Code provides that when any person is detained, the High Court may, at any time, on the application of an accused person, grant him or her bail. Any bail inquiry must be conducted impartially, judicially and in accordance with the law.
“Any postponement or refusal of bail without lawful justification amounts to an unlawful deprivation of a person’s liberty” said Meerkotter. “It is of great concern that the Kabwe High Court has failed to attend to the bail application of the two Kapiri men on an urgent basis.”