Bail must not be used as punishment – Chief Justice

Windhoek-Namibia's Chief Justice Peter Shivute has expressed dissatisfaction and grave concern with the manner in which judicial officers handle bail, saying often bail is equated with punishment.

He points to the public interest in bail, through demonstrations against granting bail to people accused of committing serious offences, as an indication that the public do not know how the bail system works.

He also said that at times when accused persons are not afforded bail their individual liberties have not been considered as required by the Constitution, and as such are denied opportunities to be out on bail to arrange their legal defence and other affairs.

An accused person who does not pose a danger to the public or the administration of justice should not be incarcerated unnecessarily before conviction. Such an accused person must be afforded the opportunity, as much as possible, to mobilise resources to prepare for trial, including engaging a legal practitioner of his or her own choice, said Justice Shivute.

Judging from the reaction in certain sectors of society when bail is granted to an accused arraigned on one or more counts involving serious offences, the granting of bail and the bail amount posted are often equated with punishment, said Justice Shivute when he opened a workshop on bail on Friday in the capital.

He said this is probably due to the fact that many in society are not familiar with the finer points of the law, coupled with the fact that courts are bound by legal principles and rules of law.

As such, sight is often lost of the basic purpose of bail, which is that where it is not necessary to keep an accused detained pending the finalisation of the trial, that person might be released on bail.

He was emphatic that bail is a procedural device to balance competing rights. Pre-trial incarceration may amount to punishment before conviction, even if it is not intended to punish. Therefore the norm is that an accused person needs to enjoy the right to liberty, unless that cannot be done because of the dangers of absconding, interfering with witnesses or the interests of society, before he or she is convicted.

The court thus has to balance the individual liberties of the accused against the interests of the victim, the effectiveness of the administration of justice and the safety of the wider public, he stressed.

Shivute said he can not emphasise enough that the court's responsibility towards society is not only to protect the rights of the accused but to ensure the rights of the victim are also safeguarded and that trust in the judicial system is maintained.

He said the wrong perceptions among the public regarding the granting of bail must be addressed.

I wish to emphasise that it is essential that magistrates have a thorough knowledge and understanding of all the legal principles and considerations involved in a bail application.

According to Shivute there is nothing more fundamental to the country's democratic system of governance than its citizens' trust in the judicial system.

I am sure you all will agree with me when I say that if our citizens lose faith in the criminal justice system, restoring such faith, trust and confidence becomes an uphill battle.

He pointed out that the Constitution makes provision for a right to a fair trial as enshrined in Article 12. This, he said, is a comprehensive right, which includes the right or opportunity to prepare for the trial as well as the right not to be punished before conviction by a court of law.

He added that together with the right to a fair trial is the right to liberty as protected in Article 7 of the Constitution.

Source: New Era Newspaper Namibia