It is strange that people think that a person convicted of a crime cannot be released on Bail. Before the 1994 Constitution, the power was statutory under the Criminal Procedure and Evidence Code and the Supreme Court of Appeal Acct – both passed around 1968.
The 1994 Constitution in section 42 (1) creates a right to any person to challenge the lawfulness of one’s detention. The Constitution actually mentions that the right insures to a convicted person.
An appeal is a challenge to ones detention by imprisonment. Section 42(2) is clear that the right under it – including the right to release from custody in section 42 (2) (e) – are in addition to the right of an accused person as a detained person.
The Criminal Procedure Evidence Code and the Supreme Court of Appeal, albeit passed before the Constitution, are made under the 1994 Constitution. A Court, therefore, in applying these provisions is not acting without the law. A court is within the law.
The Criminal Procedure and Evidence Code and the Supreme Court of Appeal Act are empowering and anchoring on the Constitution. It should not, therefore, be surprising to the public that a convicted person is released on bail.
Notice that a lot of circumstances come into play and courts must not restrict the power by their own rules- fettering the power. So that the principle must as a matter of principle, even without the Constitution express provision, be in the interests of justice – balancing between the rights of citizens and the public interest. When it is rough, rights should be taken seriously.
It will not be long when it will not be necessary to put somebody in prison until the appeal is determined – and precisely because appeals take too long and there is gross injustice when there is an acquittal or the prisoner should have served a lower term or prospect of a retrial.
My first case to release a convict on bail was around 1996/1997. I thought that section 240 of the Penal Code, theft by public servant presuming guilty, was a reverse onus provision.
I could not, therefore, let the prisoner to remain in custody for the question to be settled and I released the person on bail. So I have considerable experience on the matter.
