Sunday, September 27, 2020

To bail or not to bail? That is the question.

FRANCISTOWN: There is seething anger among victims of crime over what they perceive to be a law that elevates the liberties and rights of hardened criminals at the expense of the safety of the larger community.

At numerous meetings of local neighbourhood watch groups, people even threaten to take the law into their own hands to restore safety in a town embroiled in growing levels of criminal activity.
The residents say that criminals on bail are elevated to Mafia-style bosses because, when they re-join the society, they coordinate criminal activities from behind the scenes.

?We see them everyday brandishing knives in public boasting how they are not fearful of prison since they are on the way there, anyway. Prospective witnesses are intimidated,? says Onkabetse Mathodi.

While the rule of natural justice advocates presumption of innocence until guilt is proven, ordinary folk seek amendment to the law to allow the courts to deny accused people bail on account of their criminal record.

And they are not alone. They are in the company of the Minister responsible for Justice in the Office of the President, Phandu Skelemani.

While he clarifies that what the community wishes for, and what the Constitution upholds are opposing views, Skelemani ? a former prosecutor and, until four years ago, the country?s Attorney General ? told FPN that, personally, he would not grant a second offender bail but the laws of the country do not currently support that. He explains that such a scenario would be prevalent if there was a law compelling magistrates and judges to deny such people bail.

?A law attempting to deny rape suspects bail was struck out by the Court of Appeal on the grounds that it was ultra vires the Constitution,? he said, confirming that all offences are bailable.
He questions some judgments coming out of the courts saying sometimes the courts just have a way of looking at things their own way.

?How do you give bail to a foreigner facing a possible minimum sentence of seven years?? Skelemani asks, rhetorically saying if he found himself faced with the same situation, he would be foolish not to run away. This is in reference to the case of a Bangladeshi male who skipped bail two weeks ago while facing a stock theft charge.

As the procedure stands, an accused person cannot be denied bail because of his criminal history. Among factors that are considered when deciding whether to grant bail are whether the accused person is likely to abscond if released on bail, and or whether the accused would interfere with witnesses or investigations.

A private legal practitioner, Batsho Nthoi, believes that bail is an essential cog of the justice system that fulfills the presumption of innocence before evidence can be adduced to prove otherwise.

?I know it is emotional for victims and families but what if the accused is not found guilty? If he had not been granted bail he would have lost a job, his source of livelihood, and the system would probably have created another criminal,? Nthoi says.

He argues that bail protects the rights of an accused person and it is in line with the principle of fairness. Nthoi says all offences are bailable despite the prevalent notion that murder and treason are not bailable.

?The difficulty in obtaining bail in murder and treason cases corresponds to the gravity of the offences,? he says, adding that bail may also depend on the strength of prima facie evidence led against the accused.

Nthoi?s views are shared by another attorney, Odirile Itumeleng, whose argument is that pre-trial rights are human rights, and they should be accorded to everyone.

?Pre-trial rights have their roots on the right to a fair trial. Pre-Trial rights are human rights. They are universally applicable principles, which find recognition in the Universal Declaration of Human Rights adopted in 1948 by the United Nations General Assembly Resolution,? he says.

Despite the reasoning of the law, the crime victims are of the view that if the law does not address peculiar circumstances to ensure community safety then it no longer serves the people but the criminals.

?We can?t have the same people being allowed to torment the innocent, in the name of human rights. Doesn?t society have the right to be protected from people who are known to be criminals?? asks Michael Keeme.

Keeme says the law must be amended to bring it in line with the present challenges and threats; otherwise it would be detached from reality.

?It should not only be the liberties of criminals that are considered. The courts must also consider the cruelty they unleash in the civilized society,? he says.

Keeme says if nothing is done about this law then conviction rates would continue to plummet as potential witnesses avoid testifying against people they are likely to meet in the streets afterwards. His comment brings into sharp focus the need for a Witness Protection Programme. Currently, the Botswana Police Service does not have a Witness Protection Programme. (FPN)

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Sunday Standard September 27 – 3 October

Digital copy of Sunday Standard issue of September 27 - 3 October, 2020.