By: Muleta Kapatiso
In Zambia, it is not uncommon in Zambia to find suspects or accused persons in police detention for a very long periods of time. If you take the trouble to check police posts in various parts of the country, you find that people are detained for as long as 90 days without any opportunity to appear before court. Pretrial detention in Zambia is major challenge to the criminal justice system and administration of justice, one cannot discuss human rights violations in the criminal justice system without mentioning prolonged detention periods in police cells, this is especially because they are often not fit for human habitation. Whereas pretrial detention is mainly because of lack of adherence to human rights standards and the right to a fair trial, the lack of knowledge on how to obtain police bond or bail is a contributing factor. In this article, we explore the topic of police bond in Zambia, stating the procedure and the practice of obtaining it.
Police Bond is a guarantee at a police station that a crime suspect will turn up at the police station or court whenever required to do so by the police and that upon providing such a guarantee the suspect may be released from custody. The practice is that the relative or friend of a suspect who has been arrested may, on the suspect’s behalf, request for police Bond from the Police. The relatives or friends may undertake to be sureties for purposes of ensuring that the suspect or accused person, once he or she has been taken to court, appears before such court or police station. The surety also explains to a court or Police officer why the suspect has failed or accused person is unable to appear before Court or a Police station.
Police Bond is related to Court bail under which an accused person may apply for once they have appeared before Court. Both police bond and bail are intricately connected to the presumption of innocence guaranteed by Article 2 (a) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia. It is also related to the protection of the right to personal liberty as guaranteed by Article 13 (3)(b) of the Constitution of Zambia which provides for suspects who are in custody to be brought before a court without undue delay and where that does not happen, to be released either with or without conditions to fulfil the accused persons attendance in Court.
The Procedure for Obtaining Police Bond
Police Bond is provided for in section 33(1) of the Criminal Procedure Code Act, Chapter 88 of the Laws of Zambia. The section provides that where any person has been taken into custody for an offence other than one punishable by death, and it appears to the officer in-charge of such police station where such person is detained that it is not practicable to make the person appear before a competent court of law within 24 hours from the time of such custody, unless the offence appears to be of a serious nature, release the person on his executing a bond, with or without sureties, for a reasonable amount, to appear before a competent court at a time and place named in the bond.
If an officer in charge at a police station where a person in custody see that it is not possible to make a suspect to appear before court within 24hrs, the officer in charge should release the suspect if the offence does not carry a death penalty or one of a serious nature. The suspect can be released with or without sureties, for a reasonable amount. This amount is not payable when requesting for Police Bond, it is only paid if the conditions on which the bond is given are breached such as failing to attend proceedings before court without any explanation.
Despite the above, the Police may revoke police bond in certain circumstances These circumstances include where the surety or sureties have been discharged, meaning there are now no sureties to guarantee compliance with the bond and ensure the accused or suspect appear before a police station or court whenever required to do so. In such a case, the accused person or suspect may look for other sureties to replace those who have been discharged, it is therefore imperative that an accused person or suspect is at material times ready to have other people sign as sureties to secure his/her right to liberty. It is advisable that immediately one senses an eminent arrest, they request their potential sureties to be readily available to assist in executing the Police Bond. In this process, it must be noted that police bond is free, one does not need to pay anything as a fee.
There is usually an assumption that police bond ceases to have effect when one appears in court, this is not the case. Whereas the court has discretion to add to the conditions of police bond where necessary, the police bond itself does not cease upon appearing in court. Despite this position, the police can revoke police bond when the conditions upon which it was granted are breached, in this case, an accused person can apply for bail pending trial once they have appeared before court. In the case of The People V Benjamin Sikwiti Chitungu, Joseph Antonio Arthur and David Mazuma (1990 – 1992) Z.R. 190 (H.C.), the court held that since a police bond does not automatically cease once the accused appears in court, the Court has the power to inquire into the reason for cancellation of the bond and if the reasons are inadequate to issue or extend bail.
In other words, a police bond does not cease when am accused person appears in court. To add to this, the case of The People V Benjamin Sikwiti Chitungu and Others cited above also held that neither the police nor the Court have the power to cancel bonds issued by either of them. In short only the police can cancel police bond and only the Court can cancel the bail once granted, not the other way round.
In conclusion, pre-trial detention in Zambia is a major cause of overcrowding in our police cells and remand facilities, it is also a recipe for inhumane treatment of suspects and accused persons whose right to liberty is curtailed before they are found guilty of any crime. These pre-trial detentions also inhibit a suspect’s access to basic amenities as well the right to fair trial. Suspects and accused persons are less likely to adequately prepare for their case behind bars or timely consult counsel of their choice. Police Bond is a legal tool in the criminal justice system in Zambia which provides for suspects or accused persons to be out of detention while guaranteeing to appear before a court or police station when required to do so. Police Bond is free and given at a police station, the police station Officer-In-Charge can request, whenever it appears impracticable to bring the suspect before a competent court, that the suspect provide sureties to be released on police bond or release the suspect without requiring sureties. As a way of preparing for any eventualities, the suspect or accused, his/her lawyer, relative, friends or anyone who is in a place to do so, should be ready to arrange for sureties once it is certain that an arrest is imminent. This article has specifically focused on Police Bond, the means through which an arrested person can secure their liberty at the police station through administrative processes at police level. Another article will follow up with securing liberty when one has already been taken to court.
Chapter One Foundation is a civil society organization that promotes and protects human rights, constitutionalism, the rule of law and social justice in Zambia. Please follow us on Facebook under the page ‘Chapter One Foundation’ and on Twitter and Instagram @CoFZambia. You may also email us at [email protected]