AT THE CHIEF JUSTICES GARDEN AT THE SUPREME COURT BUILDING
LAUNCH OF THE BAIL/BOND POLICY
[20TH MARCH, 2015]
The Honorable the DCJ;
Distinguished guests; Ladies and Gentlemen; All protocol observed. 1.On behalf of the ODPP, I am honored to have been invited to participate in the development of the Bail and Bond Policy Guidelines. And also to attend their formal launch today. 2.I thank the CJ, DCJ and the entire judiciary for initiating and spearheading the process that has led to the development of the Guidelines. 3.I also commend Lady Justice Achode, the Chairperson and all the other members of the Taskforce for being able to deliver on this crucial assignment within very strict
timelines
and
for
producing
very
comprehensive and high quality document.
Ladies and Gentlemen, 4.Under our Constitution, a person charged with a criminal offence is presumed innocent until proven 2
guilty. Flowing from this presumption of innocence,
the Constitution requires that a person charged with a criminal offence shall be released on bail/bond on reasonable terms unless there exist compelling reasons for denying bail. 5.Unlike in the old Constitution, under the current Constitution, all offences including capital offences such as murder, treason, and robbery with violence are bailable. 6.The challenge however has been (and still is) that the Constitution does not stipulate what constitutes compelling reasons. 7.Therefore, what amounts to compelling reasons has been left entirely to the discretion of the trial judge/magistrate. 8.This unchecked discretion has often times resulted in unpredictable,
conflicting
and
contradictory
decisions from the courts.
9.Furthermore, it has led to a blame game between the investigators, prosecutors and the judiciary. On the one hand, investigators/prosecutors blame judges 3
and magistrates for being too lenient and too
generous in granting bail to those persons charged even
with the most serious
offences
such
as
murder, terrorism, drugs and sexual violence.
10.
On their part, judges and magistrates blame
investigators/prosecutors for simply not doing their
job, and for failing to demonstrate compelling reasons why bail should be denied. 11.
Happily, the Guidelines being launched today, do
set out to a large extent what would constitute
compelling reasons. 12.
Therefore, investigators and prosecutors know
what they are required to prove if they are to
succeed in opposing bail. There should therefore be no excuse on their part for not providing the required material
and
justification
in
opposing
bail.
Prosecutors cannot and should not be expected
simply to stand up and say I oppose bail and expect the court to agree with them. They must bring themselves
within
the
requirements
of
the
Guidelines. On this, I therefore call prosecutors to up
their game as they no longer have excuses for not
doing their job. 13.
On the other hand, judges and magistrates will
no longer exercise their discretion in a manner that is
or may appear to be capricious and unreasonable. What constitutes compelling reasons shall no longer depend on the size of the shoe of the particular judge or magistrate. Judges and magistrates when making their bail/bond decisions must know that their decisions will be tested in the higher courts and in the court of public opinion on whether they are reasonable, justified and consistent with the Bail/Bond Policy Guidelines. Ladies and Gentlemen, 14.
We have been told repeatedly that the aim of
bail/bond is to ensure that an accused person does
not abscond trial. Whilst this is no doubt a very important consideration, it cannot be the only consideration. There are other equally important and competing considerations for example: The safety and security of the witnesses; 5
The potential of the accused person to interfere
with investigations and witnesses; The views and the interests of the victims of crime; The likelihood of the accused committing other crimes; The safety and security of the accused persons themselves; and The question of national and public safety and security. 15.
These are all factors that must be balanced as
against the accused persons right to be released on
bail. 16.
In other words, the right to bail, constitutional as
no doubt it is, is not absolute; is not unqualified.
That right must be balance as against the other rights; the rights of the victim and of the wider public.
17.
I am happy to note that these Guidelines do
provide guidance on how to strike this delicate
balance. 18.
Am particularly impressed that the Guidelines do
recognize the participation of victims of crime in the
bail/bond processes and also give special recognition to the unique circumstances of the vulnerable parties in the criminal process. Ladies and Gentlemen, 19.
In conclusion, it is important that following
todays launch, these Guidelines be widely circulated
to the public and that all criminal justice sector agencies, players and stakeholders be sensitized about them. 20.
It may also be important to consider whether the
CJ or the Rules Committee should formally gazette
these Guidelines in order to give them the requisite statutory anchorage. 21.
On my part, I wish to affirm our commitment as
ODPP to working closely with all the other agencies
and stakeholders in the criminal justice system in 7
ensuring that the Bail/Bond Policy Guidelines are fully