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Whenever the topic relating to bail is discussed, there is usually a public outcry about the judiciary granting suspects bail unnecessarily. This has now caught the attention of the political lords and recently, the minister of Nationality, Immigration and Gender Affairs Edwin Batshu expressed worry over the deteriorating justice system in Botswana.
Batshu is calling on all stakeholders involved to look into the issue of bail adding that the Directorate of Public Prosecution (DPP) and other law enforcement agencies especially the police should never grant alleged hardcore criminals bail but rather should instantly deal with the matter as soon as possible. ”They should speed up their investigations to avoid the defendant escaping by using the length of investigations as an excuse,” said Batshu.
According to legal dictionary, bail is money or some form of property that is deposited or pledged to a court by a suspect, in return for the release from custody or pre-trial detention. If the suspect does not return to court, the bail is forfeited, and the suspect may possibly be brought up on charges of the crime of failure to appear.
The courts have several methods available for releasing defendants on bail. The judge determines which of these methods is used. One alternative is for the defendant to post a bail bond or pledge of money. The bond can be signed by a professional surety holder, the accused, or the family and friends of the accused. Signing the bail bond is a promise that the defendant will appear in the specified criminal proceeding. The defendant's failure to appear will cause the signers of the bond to pay to the court the amount designated. The amount of bail is generally an amount determined in light of the seriousness of the alleged offense.
A defendant can also be released upon her or his own recognisance, which is the defendant's written, uninsured promise to return for trial. Such a release occurs only if the suspect has steady employment, stable family ties, and a history of residence in the community. Willful violation of the terms of a personal recognisance constitutes a crime.
The number of serious criminals who are out on bail has reached a boiling point after one of the suspects named “Jesus” was released on bail but committed another offense a day after his release. This angered Chief Justice Dibotelo Maruping to a point where during the opening of the legal year, he reminded the public of what he said in 2013.
“Please allow me to quote myself on what I said at the 2013 Legal Year ceremony about the public outcry on its perception on how the Judiciary has and is handling the issue of bail in this country. I want to assure the nation that their concerns have fallen on deaf ears. There seems to be a blame game amongst stakeholders in the Judicial and Legal System on the issue of bail in particular with regard to the granting of bail to those who have committed certain types of offenses and repeat offenders,’’ said Dibotelo.
Whilst admitting that it is the Court as the arbiter which is vested with the power to decide whether one is released on bail or not, the court does not act in isolation neither does it rely on any other facts other than those presented before it to make a determination and the providers of this information are none other than the Police as investigators and prosecution.
Minister Batshu is against bail given to repeat offenders and called on law enforcement officers never to lose sight when dealing with such kind of suspects to create a good enabling environment and to build public confidence.
Dibotelo commended the Police for the job they are doing and appealed for better resources and establishment of specialized Units in critical areas which impact on investigations.
“We however note an emerging disturbing perception that whereas the Police arrest suspects the courts are quick and busy frustrating their noble endeavours by releasing the said suspects on bail. This narrative if not properly handled has the effect of setting the public against the Judiciary,” said Dibotelo.
Dibotelo said early February this year, the Police paraded on national Television (BTV) one accused person by the name Keodiretse Tlhofatsi alleged to have committed another offence of murder whilst on bail for alleged murder offense.
He narrated that the records shows that the accused was denied bail on 15th November 2016 but when he appeared on 29th November 2016 the police officer who represented the Prosecution did not oppose bail. Instead he proposed that conditions under which the accused should be released on bail and shockingly the suspects committed murder for the second time after being granted bail.
Dibotelo called on law enforcement officers to be careful when dealing with issues relating to bail to avoid a situation of public outcry. He advised them rather to oppose and leave the rest to the Judge or magistrate. Dibotelo admitted that there is some kind of delay in committing murder cases to the High Court for trial.
”It is worth noting that even though this offense of double murder was allegedly committed in 2016, the accused has not been committed for trial by the High Court,” said Dibotelo
He said Statistics from Magistrate Courts for the period November 2016 to October 2017 show that 4 207 bail applications were registered of which 731 (17%) were opposed resulting in 33476 (83%) bail applicants being released on bail unopposed,163 re-offended and were arraigned for similar or other offences. The total numbers of applications refused bail and have been in custody for a period in excess of 3 months is 278 while 87 have been in custody for a period in excess of 6 months whilst 17 have been in custody for 12 months pending investigations.
”It should also be emphasised that the denial of bail must not be used as a mechanism for imprisoning people under the guise or pretext that investigations are ongoing as something tangible has to be produced before the court,” said Dibotelo.
Dibotelo shared the same sentiments with Minister Batshu that the justice system needs to be given much attention to protect Batswana. He said Judges and Magistrate live in a society and discharge their duties without fear or favour and asked Police Officers and Prosecution to up their games to avoid confusion.
He said the nation should not be allowed to be threatened by alleged criminals like “Jesus” and double murder suspects Keodiretse Tlhofatsi as Police should speed up their investigations for such suspects to be tried on time because they are deemed dangerous in the society but in such instances the law should be respected as the same suspects have some rights until proven guilty.