By Michael Mauzeni
1. Name four (04) circumstances in which a bail can be used.
2. Write notes on an indictment or charge sheet.
INTRODUCTION
1
Criminal matters are brought before courts for criminal prosecution on behalf of the injured
party in the name of the “people” of Zambia and not in the name of the “injured party”. The
prosecution is led by the Government prosecutor or any private prosecutor appointed by the
Director of Public Prosecution (DPP). The prosecutors work under the directives of the DPP. In a
criminal case the wrong doer is called the accused or defendant. The criminal case is commenced
through the indictment or charge sheet or information as is called in the High Court.
WHAT IS A BAIL
2
Bail is the release of an accused person from the custody to appear in court at a later date.
Strictly, it is the contract whereby a person is released from the custody of the police to the
custody of persons known as sureties. In that sense, the sureties take on the responsibility to
ensure the defendant’s reappearance in court and to this end the sureties pledge a certain sum of
money or assets which are forfeited if the defendant fails to appear. Depending on the severity of
the offence, the defendant may be released on their own recognizance (undertaking) which may
or may not require a cash security. This will be a matter for the court to determine.
3
Although a money of bail system is in place in many states, the trend is to encourage the release
of accused persons without attaching financial conditions. If the court believes the accused is
likely to return for further proceedings, the court may release the accused on his/her own
recognizance that is an unsecured promise to return. On the other hand most jurisdictions either
authorise or require magistrates to deny bail for individuals who have demonstrated a high risk
1
John Hatchard& (1994). Readings in Criminal Law & Criminology in Zambia. Multimedia Publications Lusaka, James
Currey London.
2Seidaman,
R (1966). A source book on criminal law, London: Sweet and Maxwell Ltd.
3Chrisholm
R &Anor (1984). Understanding Law. Sydney: Butterworths.
of fleeing, such as individuals charged with an offences committed while out of jail on bail,
parole, or probation. Similarly, bail is typical unavailable for people charged with offences that
could result in capital punishment (the death penalty).In some jurisdictions the accused may be
preventively detained prior to trail if the prosecution can demonstrate to the court that he/she
poses a danger to others. Bail is very important as it raises constitutional issues, the rightto
liberty.
The Criminal Procedure provides under Sec 123(1) When any person is arrested or detained, or
appears before or is brought before a subordinate court, the High Court or Supreme Court he
may, at any time while he is in custody, or at any stage of the proceedings before such court,
be admitted to bail upon providing a surety or sureties sufficient, in the opinion of the police
officer concerned or court, to secure his appearance, or be released upon his own
recognizance if such officer or court thinks fit:
Provided that any person charged with- (i) murder, treason or any other offence carrying a
possible or mandatory capital penalty;
CRITERIA FOR GRANTING BAIL
4
Based on the principle that a person is innocent until proven guilty, there seems to be such a
presumption. The presumption can be rebutted and bail refused. But literal interpretation of the
provisions by the Criminal Procedure Code and the Criminal Procedure Act seem not to support
such presumption. However, the matters which will occupy the court in this inquiry are: Prior
convictions for the same offence; Risk of failure to appear; Protection of the public and possibly
protection of the accused; Seriousness of the offence; Character of the accused; and Stability of
home life.
The seriousness of the offence is very relevant for grave crimes; it is for example difficult to get
bail for a defendant charged with murder, treason or armed robbery in Zambia and other
countries.It is the court discretion to grant bail, the role of the Public Prosecutor in this respect
and the factors that will be taken into consideration when bail is considered.
4
John Hatchard& (1994). Readings in Criminal Law & Criminology in Zambia. Multimedia Publications Lusaka, James
Currey London.
It is the court discretion to grant bail, the role of the Public Prosecutor in his respect and the
factors that will be taken into consideration when bailupon providing a surety or sureties
sufficient, in the opinion of the police officer concerned or court, to secure his appearance or be
released upon his own recognizance if such officer or court thinks fit5.
Police Bail the description of bail as given above refers to the situation where the court grants
bail. However, the police also have power to grant bail for instance in The People V SikwitiAnd
Others 1990-1992 ZR 190. Where a person has been arrested and has not yet been brought
before the court, bail may be granted by a police officer. The police do not have the power to
grant bail for certain serious offences (such as murder).
6
The granting of bail by a police officer involves the signing of an undertaking by the defendant
to appear in court on a certain date, the failure to do so constituting an offence. In some
jurisdictions, but not in Nigeria, the arrested person may for some relatively minor cases be
required to lodge cash bail, rather than signing an undertaking to appear. In this case, the failure
by the arrestee to appear means forfeiture of the bail. Commonly, the amount of cashbail set is
relatively low and the arrestee/defendant may decide not to appear in court, forfeiting the bail but
as no conviction is recorded for the offence this may be satisfactory result all round.
7
Bail pending trial from courts for instance in Oliver John Irwin V The People 1993-1994 ZR
54Kambarange Kaunda v The People (1992) ZLR 215.One should consider the background
information; State the offence including its provision in the statute book with which the
Applicant is charged; State the Court before which the Applicant appears; State the fact that
the Applicant is currently incarcerated or remanded.
Factors the court will consider; State that the Applicant is of fixed abode;State that the
Applicant is capable of raising independent sureties;State that the Applicant will not interfere
with the witnesses if granted bailState that the Applicant will undertake to comply with all the
conditions that the Court will impose to the bail subject to its grant8.
5
Ibid pp.56-67
D et al (1986). An Introduction to Law. Sydney: The Book Company Ltd.
6Derham
7
Steven Bwalya Skeleton Notes Pdf.
8
Ibid
Furthermore CPC under Section 123(3) CPC states that When any person is arrested or
detained, or appears before or is brought before a subordinate court, the High Court or
Supreme Court he may, at any time while he is in custody, or at any stage of the proceedings
before such court, be admitted to bail upon providing a surety or sureties sufficient, in the
opinion of the police officer concerned or court, to secure his appearance, or be released upon
his own recognizance if such officer or court thinks fit:Provided that any person charged
with- (i) murder, treason or any other offence carrying a possible or mandatorycapital
penalty;(ii) misprision of treason or treason-felony; or (iii) aggravated robbery; shall not be
granted bail by either a subordinate court, the High Court or Supreme Court or be released by
any Police Officer.
9
Bail pending appeal under section 332(1) CPC states10. For instance in Mayonde V The People
(1976) Z.R 129 (H.C)
11
Constitutional bail when a person has been arrested on suspicious of committing a criminal
offence they should be tried without delay and if there is delay they should be granted
constitutional bail. The subordinate court nor the Supreme Court cannot grant Constitution bail
but the High Court. In12 the Lusaka high court dismissed an application for constitutional bail by
murder suspect, George Kalomo who is alleged to have killed his niece Ruth Mbandu. High
Court Judge ChalweMchenga dismissed the application on grounds that Kalomo had not proved
his case to warrant him the application. The judge said it was not sufficient for Kalomo to simply
show that he had been in custody for eight weeks without producing evidence. Judge Muchenga
said that the assessment of evidence would have made it possible for him to determine whether
the delay in was reasonable. Thus the judge stated: “I have difficulties in coming to a
conclusion that the delay in bringing the applicant to trial is unreasonable and is not because
of any fault or stratagem of him. “ In other words, the applicant has not provided the evidence
to prove a balance of probability that the case has been unreasonably delayed and he has not
contributed to the delay”, the judge ruled.
9
Steven Bwalya Skeleton Notes Pdf.
Section 332. (1) After the entering of an appeal by a person entitled to appeal, the appellate court, or the subordinate
court which convicted or sentenced such person, may, for reasons to be recorded by it in writing, order that he be
released on bail with or without sureties, or if such person is not released on bail shall, at the request of such person,
order that the execution of the sentence or order appealed against shall be suspended pending the hearing of his appeal.
10
11
Steven Bwalya Skeleton Notes Pdf.
Parekh V The People Zr 1995-97, 78
12ChentankumarShantal
Kalomo had through his lawyer, Kelvin Hang’andu applied for constitutional bail pursuant to
provision of 13Article 13(3) (b) of the Republican Constitution of Zambia 1996.
Factors the court will consider when granting a Constitutional bail; State that the accused is of
fixed abode; State that the accused is capable of raising independent sureties; State that the
accused will not interfere with the witnesses if granted bail; and State that the accused will
undertake to comply with all the conditions that the Court will impose to the bail subject to its
grant.
CONCLUSION
Bail is the release of an accused person from the custody to appear in court at a later date.
Strictly, it is the contract whereby a person is released from the custody of the police to the
custody of persons known as sureties. In that sense, the sureties take on the responsibility to
ensure the defendant’s reappearance in court and to this end the sureties pledge a certain sum of
money or assets which are forfeited if the defendant fails to appear. Depending on the severity of
the offence, the defendant may be released on their own recognizance (undertaking) which may
or may not require a cash security. This will be a matter for the court to determine.
Based on the principle that a person is innocent until proven guilty, there seems to be such a
presumption. The presumption can be rebutted and bail refused. But literal interpretation of the
provisions by the Criminal Procedure Code and the Criminal Procedure Act seem not to support
such presumption. However, the matters which will occupy the court in this inquiry are: Prior
convictions for the same offence; Risk of failure to appear; Protection of the public and possibly
protection of the accused; Seriousness of the offence; Character of the accused; and Stability of
home life.
AN INDICTMENT OR CHARGE SHEET
INTRODUCTION
13
13. [Protection of right to personal liberty]
(1) No person shall be deprived of his personal liberty except as may be authorised by law in any of the following cases:
(a) in execution of a sentence or order of a court, whether established for Zambia or some other country, in respect of a
criminal offence or which he has been convicted;
(b) in execution of an order of a court of record punishing him for contempt of that court or of a court inferior to it;
14
An indictment is found and presented by a Grand Jury legally convened and sworn. It
originates with a prosecutor and is issued by the grand jury against an individual who is charged
with a crime. Before such individual may be convicted, the charge must be proved at trial beyond
a reasonable doubt.The purpose of an indictment is to inform an accused individual of the charge
against him or her so that the person will be able to prepare a defense.
15
This word, indictment, is said to be derived from the old French word inditer, which signifies
to indicate; to show, or point out. Its object is to indicate the offence charged against the accused.
To render an indictment valid, there are certain essential and formal requisites. The essential
requisites are, first that the indictment be presented to some court having jurisdiction of the
offence stated therein.
Second that it appear to have been found by the grand jury of the
proper county or district. Third that the indictment be found a true bill, and signed by the
foreman of the grand jury. Fourth that it be framed with sufficient certainty; for this purpose the
charge must contain a certain description of the crime or misdemeanor, of which the defendant is
accused, and a statement of the facts by which it is constituted, so as to identify the accusation.
The indictment must be in the English language. But if any document in a foreign language, as a
libel, be necessarily introduced, it should be set out in the original tongue, and then translated,
showing its application. Secondly, formal requisites are, 1st. the venue, which, at common law
should always be laid in the county where the offence has been committed, although the charge
is in its nature transitory, as a battery. The venue is stated in the margin thus, "City and county of
_____ to wit ". The presentment, which must be in the present tense16.
NOTES ON AN INDICTMENT OR CHARGE SHEET.
17
Every person has the right of access to any information held by the state and any other person
and which is required for the execution or protection of any rights. The principle finds expression
in respect of different aspects of criminal procedure.
14
Derham D et al (1986). An Introduction to Law. Sydney: The Book Company Ltd.
15Seidaman,
16
R (1966). A source book on criminal law, London: Sweet and Maxwell Ltd.
Ibid pp.78-89
John Hatchard& (1994). Readings in Criminal Law & Criminology in Zambia. Multimedia Publications Lusaka, James
Currey London.
17
The term indictment or charge sheet is used in a court in connection with prosecutions. This
document in which it is alleged that the accused is guilty of a specific crime or crimes, inform
him/her of the contents and facts of the charge because it is essential that the accused must
always know what the charge against him/her18.
After the complaint has been made the complaint, then a charge is drawn up either by a
magistrate, public prosecutor or legal practitioner representing the complaint or the complaint
himself/herself19 .The charge sheet consists of a statement of offence which is based on the
correct section of the law and particulars of the offence which must give the accused a sufficient
indication of the exact nature of the charge to which he has to answer20 .
21
The 1st schedule of the Criminal Procedure Code acts as a guide to the wording of the statement
of offence and the format used there should be adopted by those responsible for framing charges.
The 2nd schedule to the Criminal Procedure Code consists of precedents for some of the more
common offences and the charge should be drafted as nearly as possible in the format set out in
the schedule.
The charge sheet is drawn up in the name of the People, in which the court is informed that the
accused is guilty of the crime alleged in it. In the document the date and place of the crime, as
well as other details that might be necessary, are also mentioned. Where no preliminary
investigation was conducted, the indictment must be accompanied by a summary of the material
18
Ibid
19THE
CRIMINAL PROCEDURE CODE ACT CHAPTER 88 OF THE LAWS OF ZAMBIA Section 90. (1) Proceedings
may be instituted either by the making of a complaint or by the bringing before a magistrate of a person who has been
arrested without warrant.
(4) The magistrate, upon receiving any such complaint, shall(a) himself draw up and sign; or
(b) direct that a public prosecutor or legal practitioner representing the complainant shall draw up and sign; or
(c) permit the complainant to draw up and sign; a formal charge containing a statement of the offence with which the
accused is charged, and until such charge has been drawn up and signed no summons or warrant shall issue and no
further step shall be taken in the proceedings.
20THE CRIMINAL PROCEDURE CODE ACT CHAPTER 88 OF THE LAWS OF ZAMBIA Section 137. The following
provisions shall apply to all charges and informations and, notwithstanding any rule of law or practice, a charge or an
information shall, subject to the provisions of this Code, not be open to objection in respect of its form or contents if it is
framed in accordance with the provisions of this Code:
(i) A count of a charge or an information shall commence with a statement of the offence charged, called the statement of
offence;
(ii) the statment of offence shall describe the offence shortly in ordinary language avoiding as far as possible the use of
technical terms, and
without necessarily stating all the essential elements of the offence and, if the offence charged is one created by enactment,
shall contain a reference to the section of the enactment creating the offence;
21
University of Africa Civil and Criminal Procedure CCP110 Module. Lusaka.
facts of the case that are necessary to inform the accused concerning the allegations against
him/her provided that it will not prejudice the administration of justice to the security of the
state.
The purpose of the summary of material facts is to supplement the reasonably concise review
that provided almost inevitably by the indictment. The State is not, however, bound to the
summary and consequently cannot be prevented from leading evidence that refuse it.
A list of names and addresses of the witnesses that the Director of Public Prosecution intends to
call must also be provided, even though the Director of Public Prosecutor may withhold it if
he/she is of opinion that witnesses can be tampered with or intimidated.
22
The indictment must be read to the accused. This occurs in terms of the rules of the court or by
the Judge who preside over the case. Unless an accused has been summoned to appear before the
court, the proceedings at summary hearing commerce in a lower court when the charge sheet is
submitted by the Clerk of the Court to the presiding Magistrate. The charge sheet is not served
on the accused, but it is read by the court. The accused can peruse the charge at any stage of the
criminal procedure in question. In such a case the accused is present in the court on the ground of
written notice, summon or arrest.
The Criminal Procedure Code provides for the amendment of the charge sheet in three
circumstances; where it is inadequate because of the lack of an essential allegation in it; where
there is a difference between the allegation in the charge sheet and the evidence that is
presented; where words have been omitted or excessive words have been inserted or any other
error has been made.
Under Section 20123 of the Criminal Procedure Code, the courts may at any time before a final
judgment is made, allow the complaint to withdraw the charges against the accused and acquit
the accused. Under Section 8824 (a) (b) of the Criminal Procedure Act in any trial before a
22University
23THE
of Africa Civil and Criminal Procedure CCP110 Module. Lusaka pp..44-48
CRIMINAL PROCEDURE CODE ACT CHAPTER 88 OF THE LAWS OF ZAMBIA Section 201. If a
complainant, at any time before a final order is passed in any case under this Part, satisfies the court that there are
sufficient grounds for permitting him to withdraw his complaint, the court may permit him to withdraw the same, and
shall, thereupon, acquit the accused.
24Section 88. In any trial before a subordinate court, any public prosecutor may, with the consent of the court or on the
instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the
prosecution of any person; and upon such withdrawal-
subordinate court any Public Prosecutor may with the consent of the court withdraw from the
prosecution of any person.
25
The Criminal Procedure Act provides that any number of the participants in the same crime can
be tried jointly as well as any number of accessories after the fact or participants as well as
accessories after the fact in respect of the same offence.
When it is alleged in a charge sheet that two or more persons committed separate crimes at the
same time and place or at the same place and approximately the same time and the public
prosecutor informs the court that evidence which, his/her opinion is permissible in the trial of
one of those persons, is in his/her opinion also permissible in the trial of the other person or
persons, such persons can be tried jointly for the crimes in that charge sheet.
The Criminal Procedure Code contains certain provisions which must be compiled with at the
trial, but apart from this the trialis in the hands of the presiding judicial official. All the
instructions given by the judicial official during the trial in order to ensure that the proceedings
go smoothly must be strictly obeyed by the parties, the court personnel and the public and
anyone who is guilty of deliberate disobedience can be sentenced summarily for contempt of the
court26.
The standards that a judiciary must maintain during the questioning of witnesses, including the
accused are as follows. The court: must not handle questioning in such a way that its
impartiality can be questioned or doubted; must not participate in the case to the extent that its
vision is obscured by the dust of the arena; must not intimidate or upset a witness or the
accused so that his/her answers or credibility is prejudiced and; must control the trial so that
impartiality, fairness and reasonableness are clear to all who have an interest in the trial in
particular the accused.
CONCLUSION
(a) if it is made before the accused person is called upon to make his defence, he shall be discharged, but such discharge of
an accused person shall not operate as a bar to subsequent proceedings against him on account of the
same facts;
(b) if it is made after the accused person is called upon to make his defence, he shall be acquitted.
25 John Hatchard& (1994). Readings in Criminal Law & Criminology in Zambia. Multimedia Publications Lusaka, James
Currey London.
26
Ibid pp98-107
The term indictment or charge sheet is used in a court in connection with prosecutions. This
document in which it is alleged that the accused is guilty of a specific crime or crimes, inform
him/her of the contents and facts of the charge because it is essential that the accused must
always know what the charge against him/her.
After the complaint has been made the complaint, then a charge is drawn up either by a
magistrate, public prosecutor or legal practitioner representing the complaint or the complaint
himself/herself .The charge sheet consists of a statement of offence which is based on the correct
section of the law and particulars of the offence which must give the accused a sufficient
indication of the exact nature of the charge to which he has to answer.
REFERENCS
Chrisholm R &Anor (1984). Understanding Law. Sydney:Butterworths.
Derham D et al (1986). An Introduction to Law. Sydney: The BookCompany Ltd.
Griffths, L et al (1993). Introducing the Law. Sydney: CCH.
John Hatchard& (1994).Readings in Criminal Law & Criminology in Zambia.
Multimedia Publications Lusaka,James Currey London.
Seidaman, R (1966).A source book on criminal law, London:Sweet and Maxwell
Ltd.
University of Africa Civil and Criminal Procedure CCP110 Module. Lusaka
STATUTES
Constitution of Zambia 1996 Lusaka: Government Printer
The Criminal Procedure Code Act Chapter 88 ofthe Laws of ZambiaMinistry of
Legal Affairs, Government of the Republic of Zambia.
TABLE OF CASES
The People V SikwitiAnd Others 1990-1992 ZR 190.
Kambarange Kaunda v The People (1992) ZLR 215.
Mayonde V The People (1976) Z.R 129 (H.C)
Oliver John Irwin V The People 1993-1994 Zr 54BukasaPeluSekele V The People (1990) S.J. (S.C.)