New bail law to give rape victims a voice
Mpho Mokwape | Wednesday December 6, 2023 09:24
The Bail Bill of 2023 presented by Minister of Justice, Machana Shamukuni which is in its second reading before Parliament, will provide for the rights of complainants in cases of rape and other offences an opportunity to have a say during bail hearings. "It gives such complainants the right to have a say in the bail proceedings by allowing them the opportunity to give to the prosecutor any information that may be useful in determining whether to grant or refuse bail or in determining the conditions of recognisances," explains the reading of the Bill. According to the Bill, there has been a gap in the current law where criminal acts are regarded as crimes against the state, therefore, the prosecution of criminal acts does not take into consideration the rights of the complainants, victims or witnesses of criminal acts. "This part, therefore, seeks to bridge this gap and give a voice to victims of crime," reads the Bill in part.
Another important aspect of the Bill is that it will provide for the constitutional principles upon which bail is premised and the circumstances under which bail may be granted or refused and provides further for what is expected from the accused person whilst on bail, which is, amongst others, to attend court as and when required. It explains that the above part also makes it mandatory for the judicial officer not to release the accused person if one of the stated grounds is established, for example, if the accused was likely, in the eyes of the court, to commit any of the offences of murder, stock theft, motor vehicle theft, rape or defilement amongst others. The Bill, in general, is expected to address challenges surrounding bail, especially public outcry that accused persons are granted bail with ease and escalating cases of repeated offenders while on bail. The Bail Bill's main objective is to provide for circumstances under which a suspect or an accused person may be granted or refused bail.
The Bill comes at a time when there have been rising concerns about easy bail laws that seem to be encouraging the commission of crimes, knowing that one will get bail easily. Over the years, there has been widespread public concern and outcry that accused persons are granted bail with relative ease and that the law is skewed in favour of the accused. "Bail is granted with little or no consideration for the safety concerns of victims and witnesses of the crime; and persons accused of serious offences are granted bail and then proceed to commit similar offences while on bail," reads one of the concerns. The Bill, which is divided into nine parts, will provide factors that should be considered by balancing the rights of the accused person and the public interest. It is expected to look into factors such as the accused person’s fundamental right to liberty and the accused person’s fundamental right to a fair trial within a reasonable time, balanced with the delay in completing investigations. Further, the accused person’s fundamental rights to liberty and the accused person’s fundamental right to a fair, balanced public interest and the interest of victims and witnesses of the crime. One factor that will look into victims of crime explains that victims and witnesses of crime should be afforded an opportunity to be heard and responded to before granting bail, especially in domestic violence cases and sexual offence cases.
The Bill indicates that "there must be serious consideration of the following, i. level of risk posed to a victim or witness, the nature and seriousness of the offence, ii. whether the accused is a repeat offender, including the accused’s character, history and record in relation to previous grants of bail; and iii. conversely, the security of the accused must be considered where the accused will be released on bail and may be at risk of retaliation by relatives of the victim of the crime he is alleged to have committed".