Bail Act: How much will the Bail Act achieve?

11 Aug 2019

BY JOSEPH BALISE

Succinctly put, the intentions are, to a great extent, ill-advised and still born, unless proved otherwise once the wheels begin rolling out for all to see and gauge for themselves their success. If ever there will be any.

At a Bail Pitso held at Thapama Hotel in Francistown for all stakeholders on the back of persistent public outcries over the admission to bail of criminal suspects especially indicted with serious crimes of murder, rape and others, it became apparent that even the enactment of a Bail Act whose resolution which was adopted amid dissenting voices, the enactment of the Act may ultimately prove not to be what the doctor prescribed as the desired remedial solution.

It became crystal clear during the deliberations that the actual problem was not premised in the lack of an appropriate legal framework, but rather in the sloppy processes within the Department of the Administration of Justice (Oak), the Botswana Police Service (BPS) as well as the Directorate on Economic Crime and Corruption (DCEC) in fully executing their investigations mandates.

Top of the problems bedevilling the criminal justice system is under-resources of its components, a fact acknowledged by Director of Public Prosecutions Stephen Tiroyakgosi in his presentation conceding that “the wheels of criminal justice are very slow”.

The issue of insufficient resources for all the components of the criminal justice system is not a new phenomenon. It dates years back but the relevant authorities are seemingly not addressing it with the verve and zeal that it deserves.

Addressing the 2017 judicial conference in Palapye with the theme: “Judicial reforms 2008 – 2017: Achievements and Challenges”, former Chief Justice Maruping Dibotelo observed that the major challenge that the judiciary faced was under-resourcing.

To that extent Justice Maruping said, “I have pronounced publicly my deep seated conviction to devote what remains of my tenure as Chief Justice to advocating and ensuring that the funding of the Judiciary especially and its stakeholders takes centre stage. Whilst we appreciate the support the Government has extended to the judiciary to ameliorate the situation such as the provision of vehicles and caravans for special stock theft courts as well as buses for the Special traffic Courts, much more still needs to be done.

“For example, equipment such as tents, boots and special clothing for those who man the special stock theft courts need to be purchased and funds for that purpose are urgently required. The same applies to the replacement of old vehicles for Judges. The shortage of registry clerks both at the Magistrates and High Court is adversely affecting our performance at both levels. This state of affairs has impacted negatively on our reforms of Court Records Management System and Judicial Case Management”.

Justice Maruping explained that the truth of the matter was that “even with our greatest of efforts at re-engineering our processes and the incremental use of technology, the shortage of human and financial resources continue to cripple our best plans. These reforms still need people to drive them”.

The former Chief Justice observed that in 2015 they converged in Mahalapye to discuss the issue of a well resourced judiciary and its crucial role in the expeditious delivery of quality justice. At that conference it was noted in consensus that the independence of the judiciary was affected when it was not well funded and the conference further identified the need to urgently convene a conference on the resourcing of the judiciary and its key stakeholders which recognized that the budget allocation top the judiciary was inadequate and hampered the judiciary’s financial and institutional independence.

It was also resolved that government should amend the necessary legislative framework to ensure that a specified percentage of the national budget is allocated to the judiciary as well as other stakeholders to enhance effective justice delivery.

From the bail Pitso proceedings, most of the issues raised by former Chief Justice Maruping evidently remain unaddressed to date as most speakers raised them time and again to the extent that Mishingo Jeremiah, representing Law Society of Botswana, illustrated the delays they encountered through statistics of murder cases handled by his law firm which have not been concluded despite having been registered as far back as more than three years ago.

Jeremiah said cases committed to trial on takes an average of three years before they are heard and concluded and that it is not in the interest of justice for suspects to be kept in remand for so long.

After Jeremiah’s presentation which was quite enlightening to the participants, the conference focus shifted to the need of adequate resourcing all the components of the criminal justice system extending to other areas of the justice system.

Magistrate Tonoki explained that he was dealing with at least 195 cases per month, a task that was excruciatingly overwhelming, in illustrating of how over burdened judicial officers were. The Bail Pitso resolved the need to capacitate of all relevant stakeholders in the criminal justice system to assist them to deliver on their mandates effectively.

The other topical issue that the Bail Pitso identified was need for public education on the bail issue as it became clear that the issue was barely and hardly understood by the general public, hence the ensuing public outrage and to that extent it was resolved that public education and interaction is key as the be public at lathe ought to be taught about the presumption of innocence until proven guilty by a legitimate court of law as espoused in the Constitution.

The public education drive must include in its agenda the teaching on the legal principle of bail pending trial and bail pending appeal as well other considerations that the court take into consideration in determining whether the candidate is eligible to be granted or denied bail.

The conference also resolved that the criminal justice components should also take advantage of technological advancements especially with regard to court recording systems that engender real time court proceedings recording.

On the realization that there are often repeat offenders who commit offences in one jurisdiction and migrate to other jurisdictions where they continue terrorizing people and committing more offences, it was resolved that a data base accessible to ascertain the offender's history be created. The data base must be interlinked to all relevant stakeholders in the criminal justice system if it is to achieve intended results.

The conference further resolved that a system be created that will ensure effective monitoring of bail conditions on those who have been granted bail.

It was also resolved that the law must be re-visited to allow the state to appeal bail rulings to the High Court as currently the law precludes the state from appealing bail rulings. The appeal issue must be a provision in the envisaged Bail Act.

Prosecutors and magistrates took issue with the 14 days mention requirement which they labelled tedious, hence ripe for amendment. A resolution was passed to extend the mention to a period not exceeding two months.

Deputy Director at DCEC and a renowned human rights lawyer Joao Carlos Salbany cautioned that the extension to two months had immense potential to prejudice suspects in custody who seek bail. Salbany also implored the gathering to tread cautiously on a Bail Act fearing that it may contrive the Constitution that guarantees the right to liberty.

The other resolution entailed creation of Safe House or measures geared towards witnesses and victims protection.

The DPP managed to squeeze through the Bail Act which was adopted amid dissenting voices especially that the main issue that had been identified during proceedings was not the envisaged Act but rather the adequate resourcing of all the criminal justice system components to ensure speedy delivery of justice so that the innocent are discharged and offenders incarcerated.

Proposing the enactment of a Bail Act, DPP deputy director Wesson Manchwe explained that the public outcry about the issue of accused persons committing criminal offences while on bail is captured in media reports and other forage and manifests itself in the castigations of the DPP and the judiciary which are accused of dereliction of duty.

Manchwe said the outcry bothers them as DPP particularly that it has a bearing on public confidence on the DPP as an institution and indeed in the criminal justice system.

“There is a public outcry… the public is crying very loudly for something to be done to stem the tide of offences committed by accused persons following their being granted bail. It is our view at the DPP that the public should be pacified and only the law can do so. In terms of the Constitution, Section 3 thereof to be precise something can and should be done. It is time regard to the public interest was heard and the right to liberty of people accused of committing very serious crimes increasingly abridged… The Constitution should be used in such a manner as to make it responsive to the problem under discussion. The liberty of the subject must give way to the public interest in this situation.

“For the sake of completeness, it needs to be stated that non-opposition of a bail application by the prosecution is not decisive in that it is for the court to decide whether or not the applicant is deserving of bail”, said Manchwe.

Manchwe in his theatrical element said in the event that their position is misinformed which they doubted as the DPP, they wonder whether the time is not ripe to address the public’s concerns regarding bail through an enactment of a Bail Act.

The Act in Manchwe’s view will “ease the seemingly insurmountable legal hurdles prosecutors have to contend with in practice when opposing bail applications”.

Delivering a key note address on behalf of the Minister of Defence, Justice and Security, Bafi Nlanda, the county’s Receiver, conceded that intrusive and violent crimes are on the increase and the issue has attracted a lot of public interest.

“What worries the public most is that the suspected offenders continue to roam the streets as they are granted bail by the courts. The public believe that this is done so without their consideration and as such puts them at the mercy of the perpetrators of crime”, said the minister.

It was pointed out that the decisions on bail, in criminal proceedings, represent an important stage in the prosecution process. The results of the decisions can have far reaching consequences for victims of crime and the public in general.

“From the view point of the suspect or accused person, bail decisions made by a Court can result in the deprivation or restriction of liberty for a substantial period of time…to avoid prejudice to the suspects occasioned by lengthy investigations and slow disposal of cases, the courts are often inclined to grant bail even when they were not minded to do so. There is therefore a need to speed up investigations and trails as well as improving our jurisprudence. As a benchmark, other considerations like United Kingdom have by statute excluded automatic bail, especially in the lower courts, certain offences in the consideration for bail e.g. murder, manslaughter and sexual offences”, read Nlanda from the minister’s keynote address speech.