A mockery of the entire system
Jestina Mukoko has been in police custody for two months. On Wednesday, High Court Justice Chitakunye denied her bail ostensibly because she “had yet to be advised by a court on her charges.”
Now, I don’t have any legal training, but this struck me as patently absurd. And surely illegal. Rule of law? What rule of law.
So I asked a lawyer friend for his thoughts, and for his sense of whether the Justice had any legal backing for his decision. He referenced the Criminal Procedure and Evidence Act, and helped to interpret it a bit:
117 Entitlement to bail
(1) Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.
Now the crucial words here are “at any time” and “on a charge”. The words on a charge are generally accepted here to mean not that a formal charge has been put (as the judges seemed to hold) but on allegations of having committed an offence or reasonable suspicion thereof. If, however, the person is held without there being a suspicion or allegations of having committed and offence then it is correct to state that the person cannot apply for bail. . . . The judge should order the person’s release without bail as the detention is then unlawful in terms of the Constitution, the name for the court action being the interdictum de homine libero exhibendo, more popularly known as habeas corpus in Anglo jurisdictions.
The judge presumably claimed ignorance of the meaning of “on a charge” in relation to bail applications but more importantly over looked the provisions of 117.
117A Application for bail, bail proceedings and record thereof
(1) Subject to the proviso to section 116, an accused person may at any time apply verbally or in writing to the judge or magistrate before whom he or she is appearing to be admitted to bail immediately or may make such application in writing to a judge or magistrate.
Note this section does not mention on a charge. Furthermore the section is ambiguous. It is not clear whether the phrase “before whom he or she is appearing” applies to the phrase “application in writing to a judge or magistrate”. If it does not – and my opinion is that it does not – then a detained person can make an application for bail “at any time” even before he or she has appeared in court, let alone whether any formal charge has been put.
Also aside from the technicalities of the law common sense tells even a lay person that the state cannot scupper any bail application by the simple expedient of not putting formal charges to an accused. When an accused appears in court, the state has to tell the court why the accused is there . . . this counts as appearing on a charge. Often charges are complicated and it takes some time to draw up the formal charge . . . usually only put to an accused when the trial starts.
The whole point of having time limits within which a person must be taken to court is so that a judge can speedily consider the lawfulness of the arrest and determine the question of bail so that the innocent are not held a second longer in custody than is necessary. The approach of the judge overlooks this fundamental principal of our criminal procedure.
All bail issues should be deal with as a matter of extreme expedition. I understand from another lawyer that although the courts hear applications for habeas corpus as a matter of urgency, when the police ignore these orders the subsequent complaint for contempt of court is not. This makes a mockery of the entire system.