The bastardisation of justice
Mmegi Editor | Friday February 2, 2018 16:21
Each day, via Btv and other channels, Batswana witness violent criminals being paraded after capture, only to learn that the brazen, unrepentant and smug scoundrels are granted further bail.
Late last year, a mob of suspects in violent robberies was shown on Btv, with the report noting that more than half of them were already on bail for other crimes, with others having two bails pending.
Recently, two notorious armed robbers were nabbed in Block 7, only for Batswana to learn that they were both on multiple bails already.
This week, police appealed to Batswana to help them trace a dangerous 19-year old wanted for murder and serious assault. The teen had been out on bail for a year in another murder case.
Most of these criminals will again apply for bail, because, as their lawyers note, being suspected of a crime is not a violation of previously granted bail conditions.
When they are finally imprisoned, some of these criminals then qualify for presidential pardons, which they then abuse by inflicting even more violence on the community. One incident from 2014 still rankles, in which a young man was pardoned and went off to kill most of his family.
The criminal justice system and its adversarial make-up, when they work perfectly, are supposed to ensure justice and equity for both defendants and the public good.
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.
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.
Members of the public, who should act as witnesses, are also discouraged from coming forward as they see suspects picked up today and tomorrow roaming the streets with apparent impunity.
We once again plead with Justice Minister Shaw Kgathi and our legislators to review the Criminal Procedure and Evidence Act and tighten the award of bail conditions, as well as the scenarios under which these are said to be violated.
A national dialogue needs to be had on this matter. Many of these suspects and victims are our children, our brothers, uncles, sisters and it is critical that we find that balance between mercy, justice and the preservation of our way of life.
We welcome your thoughts on this. Please email to dikgang@mmegi.bw and get the dialogue going – Editor