Principal Judge Dr Flavian Zeija
Principal Judge Flavian Zeija has directed all magistrates not to release on bail suspects who face capital charges.
Previously, magistrates were at liberty to release suspects who were facing capital offences like murder, treason, terrorism, and aggravated robbery, among others, if they had been on remand for 180 days (the equivalent of six months) without the State concluding investigations and having them committed to the High Court to stand trial.
“Following the gazettement of the Judicature (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022, bail for accused persons other than juveniles charged with capital offences before their committal can only be granted by the High Court after a formal application has been filed,” Justice Zeija wrote in his December 12 administrative circular no. 2 of 2024.
He added: “This also serves to direct all judicial officers of the lower bench that are still releasing accused persons charged with capital offences, who are not juveniles to desist from doing so. Please ensure immediate compliance.”
The Principal Judge has instructed registrars to forward files with bail applications to judges in the High Court for immediate consideration, and that these applications should be heard on a day-to-day basis.
“You are instructed to circulate the forms widely within your jurisdictions, through your court user committees, circuit coordination committees, and district coordination committees to make accused persons charged with capital offences aware of their rights and obligations before the High Court. The forms should be made available to Prison authorities to enable unrepresented accused persons to fill them out and forward them to relevant courts,” the Principal Judge instructed.
In a telephone interview with Monitor yesterday, Mr James Ereemye Mawanda, the Judiciary public relations officer, said: “As the Judiciary, we have no contradiction with the law, but now going forward, judicial officers are required under the law to process bail, if someone has clocked 180 days before the High Court and not the Magistrates Courts.”
Hopeful
He added: “We have hundreds of suspects on warrant of arrest because they wantonly issued mandatory bail by magistrate courts and we believe that once we shift this process to the High Court, there will be more precaution before suspects are released on bail.”
The Constitution under Article 23, states that if a suspect spent more than 60 days (two months) on remand on a non-capital offence, they could apply and be released by a magistrate court if their trial hasn’t started.
Likewise, if a suspect facing capital offences and has spent 180 days (six months) on remand, he or she can apply and be released on such reasonable conditions by the magistrate court, a position which has now changed.
Senior criminal lawyer Henry Kunya disagreed with the change in the practice, saying the Constitution stands supreme.
“Regardless of the change, the constitutional provisions remain the final law and anything contrary to that is null and void,” Mr Kunya said.
“The Constitution provides for the presumption of innocence and we have had scenarios where someone has been on remand for a long and after maybe the DPP drops the charges or he/ she is acquitted. So you rather grant someone bail after all bail is not an end in itself. They are the same people who are complaining of congestion."
