A miscarriage of justice

Mmegi Editor | Thursday June 8, 2017 11:56

The scales of justice, when they work perfectly, are supposed to be balanced in such a way that they are tipped only by the evidence led, the counter-arguments given and the mitigation.

However, more and more, it is becoming clear that the adversarial system appears to favour defendants over prosecutors, particularly in the initial stages of a case when the highly contentious issue of bail appears.

A number of cases have highlighted the weaknesses and imbalance of the bail issue in recent years, months and weeks, with suspects already on bail for multiple serious allegations, being granted even more bail in fresh and even more serious cases. Some of these suspects have gone on to commit more crimes while on bail or flown to freedom over the porous borders, again dealing the concept of justice a blow.

In the latest incident, a suspect with 11 cases of armed robbery pending, was granted bail and went onto allegedly commit another gunpoint robbery involving more than P100,000. His co-accused, equally laden with multiple serious charges and multiple bail, including for rape and armed robbery, is in the wind, spreading panic amongst the general society.

By principle, local law adheres to the presumption of innocence for suspects, which places the burden of proof on the accuser, who in criminal cases is the state. While this globally-accepted principle is prudent in protecting the rights of citizens, in Botswana the threshold for securing bail is set so low that it prioritises the rights of suspects over the public.

For instance, as long as a defendant with multiple cases before court continues to honour their mention appearances, they may be eligible for bail when they are arrested for another case. While considerations for bail include attendance at trial, nature of charges, severity of possible punishment, possibility of absconding and public interest, it appears the increasingly sophisticated suspects and their powerful lawyers are no match for the underfunded and often amateurish prosecutors.

The end result is that the meagre resources of our police service – already staffed by generally demoralised members – are kept chasing after suspects who regularly turn into fugitives, or become involved in fresh cases. As police have said in the past weeks, their efforts to pursue justice are being hampered by the ease at which suspects are granted bail, even when these suspects are facing multiple serious charges.

Members of the public, who should act as witnesses, are also discouraged from coming forward as they see suspects picked up today and tomorrow braggartly roaming the streets with apparent impunity. As raised by Justice Minister Shaw Kgathi a few years ago, it is clear that a review of the Criminal Procedure and Evidence Act is necessary, even if constitutional amendments are required to make this happen.

Today’s thought

“Batswana are worried about the levels of crime committed by people who have been granted bail by the courts.” 

 - Shaw Kgathi