CAN SOMEONE WHO HAS BEEN CONVICTED BAILED OUT?

               

OpinionBy Faustine Kapama
               When a person is convicted of a criminal offence and that person decides to file an appeal to challengethe conviction and sentence imposedagainst him, he can apply to the appellate court to be granted bail while pursuing his appeal.It has been a common practice that only an accused person, when he is taken before a court of law, is entitledto bail if he is charged with a bailable offence, as he is presumed innocent as per Article 16 of the Constitution until proved to the contrary.
              Offences which one could not be granted bail fall under Section 148 (5) of the Criminal Procedure Act (CPA).Section 148 (5) says that a police officer in charge of a police station ora court before whom an accused person is brought or appears, shall not admit that person to bail if that person is charged with murder, treason, armed robbery, or defilement; terrorism against the Prevention of Terrorism Act and money laundering.Other offences covered includes illicit trafficking in narcotic drugs against the Drugs and Prevention of Illicit Traffic in Drugs Act, but does not include a person charged for an offence of being in possession of drugs under which the offence was committed, was not meant for conveyance or commercial purposes.The narcotic drugs include heroin, cocaine, prepared opium, opium poppy (papaver setigerum), poppy straw, coca plant, coca leaves, cannabis sativa or cannabis resin (Indian hemp), methaqualone (mandrax), catha edulis (khat) or any other drug or psychotropic substance whose value exceeds 10m/-.But a prisoner could apply Section 368 of the Act to seek bail.
               The law gives a room for such a prisoner to apply for bail, pending appeal.Section 368(1) reads that the High Court or the subordinate court which convicted or sentenced such person may, for reasonable cause, in the case of a person sentenced to a termof imprisonment order such person be released on bail with or without sureties pending hearing of his appeal.
               The provision further states that the execution of the sentence appealed against may be suspended pending the hearing of his appeal in which case the appellant shall be treated asa remand prisoner, pending the hearing of his appeal.Sub-section (2) states that if the appeal is dismissed and the original sentence is confirmed or some other sentence of imprisonment substituted thereof, the time which the appellant has been on bail shall be excluded in computing the term ofimprisonment to which he is finally sentenced.This is what the two convicted formerministers, Basil Mramba and Daniel Yona have attempted to do. Without going into the details of the application, the two have applied to be granted bail while pursuing their respective appeals against the judgment passed against them recently.Legal experts say that the right of bailpending appeal does not become automatic. One has to show exceptional circumstances to secure such rights.According to the Law Handbook, bail pending appeal is uncommon. If an accused person is convicted of an offence and sentenced in the Magistrates' Court and lodges an appeal against conviction and, or sentence to be heard by a regional court, he may apply for bail in the Magistrates' Court pending the hearing of the appeal.The Magistrates' Court must determine the application as if the accused was charged and is awaitinghearing for the offence subject of the appeal.
               While it depends upon the individual facts of the case, it is common for an accused person to be granted bail oncondition that they have an appeal pending, particularly if the person hasbeen on bail and has complied with all bail conditions before the hearing of the charges in the Magistrates' Court.If an accused person is convicted of an offence and sentenced in the Supreme Court or County Court and lodges an appeal against conviction and/or sentence (in the Court of Appeal), they may apply for bail pending the hearing of the appeal in the Court of Appeal.
               However, a grant of bail pending an appeal to the Court of Appeal is very uncommon. It will only be granted in very exceptional circumstances.The justification for this is that the verdict of the jury should be regardedas final and not conditional. Accordingly, unless a person is able to demonstrate that they will have served the entirety of their sentence prior to an appeal being heard, or thattheir appeal will most likely succeed and the conviction will be set aside, they will remain in custody until the appeal is heard.In the Criminal Appeal No. 170 of 2004 between Amin Mohamed versusRepublic, the appellant presented two grounds to justify grant of bail pending appeal.They include sickness and overwhelming chances of success ofthe appeal against conviction and sentence imposed.
             High Court Judge Augustine Shangwa, who was hearing the application, has this to say, "The issue is whether his illness constitutes a sufficient cause to grant him bail pending appeal.For me, think it does. The judge held that the appellant's health problems namely hypertension, headache and diabetes with which he was affected could not be controlled when one is living in poor Prison conditions as those at Keko Prison from where he was serving his sentence.He said, "The said prison is crowded with prisoners. The majority of them are very noisy. Those who are servinglong sentences are in a State of despair and are quite troublesome in their daily life. The prison food services are notoriously poor.
             Mostly,the prisoners are fed on porridge, Ugali, beans and broth."Sometimes, the judge observed, the prison authorities serve food or porridge with much sugar and much salt in the beans and broth and patients with diabetes and hypertension such as the appellant are advised by medical doctors not totake sugared and salty foods."When such a patient is in prison it become next to impossible to avoid noisy situations which are prevalent there. Also is next to impossible to avoid sugary and salty foods which are detrimental to diabetic patients and patients who are suffering from hypertension, like the appellant," he said.
                  This means that the appellant's illness was not controllable in prison and for such reason there was sufficient cause for him to to be granted bail pending hearing and determination of the appeal. One of the tests which is commonly applied by the Court in considering application for bail pending appeal is whether or not the applicant's appeal has overwhelming chances of success."This is an old test. I find that this old test has some disadvantages in applying it. One of its greatest disadvantages is that it attracts pre-mature comments by the court on merit of the appeal and it calls for a pre-judgment in the pending appeal," the judge observed.