The Bail Jurisprudence of Ghana, Namibia, South Africa and Zambia
Amoo, Samuel Kwesi, Forum on Public Policy: A Journal of the Oxford Round Table
Part 1: Introduction
Topics such as bail jurisprudence more often that not conjure up emotions of security concerns about the "bad guy that must kept off the streets". Most often, we tend to forget about the cardinal principle of the presumption of innocence in criminal justice. Contemporary international policies and measures taken by some powers to combat international terrorism testify to the dangers of actual pre-trial punishment. The root cause of this, it is submitted, is the concentration of excessive powers over security matters in the Executive. Refusal of right to bail assumes a position that our criminal justice systems are perfect and that individuals detained for allegedly committing serious offences will be charged and tried in accordance with the precepts of the due process of the law. Yet empirical evidence proves the contrary; there are cases in certain jurisdictions of torture at detention camps (1) and the inability of the State to bring detained persons for trial within reasonable time.
Security concerns traditionally come under the jurisdiction of both the Legislature and Executive but the determination of bail application forms part of the due process of the law which belongs to the domain of the Judiciary. The question as to which organ of state has the final say in bail applications is a question of choices. Bail jurisprudence involves the balancing of the values relating to the rights of the individual and the security of the state; it involves the balancing of the dictates of positivism and rationality and how these choices impact on the individual and the society; it is a cultural phenomenon since the values of the society dictate the content of bail jurisprudence.
As stated by Nagel: (2)
"The basic purpose of bail, from the society's point of view, has always been and still is to ensure the accused's reappearance for trial. But pretrial release serves other purpose as well, purposes recognized over the last decade as often dispositive of the fairness of the entire criminal proceedings. Pretrial release allows a man accused of crime to keep the fabric of his life intact, to maintain employment and family ties in the event he is acquitted or given a suspended sentence or probation. It spares the family the hardship and indignity of welfare and enforced separation. It permits the accused to take an active part in planning his defense with his counsel, locating witnesses, proving his capability of staying free in the community without getting into trouble."
In criminal justice jurisprudence, the right to bail has often times been discussed in the context of the presumption of innocence and the right to liberty.
As stated by Mahomed J in S v Acheson (3):
"An accused person cannot be kept in detention pending his trial as a form of anticipatory punishment. The presumption of the law is that he is innocent until his guilt has been established in Court. The Court will therefore ordinarily grant bail to an accused person unless this is likely to prejudice the ends of justice."
But it is submitted that the better approach to the jurisprudence of bail is a holistic one; an approach that must look at bail as part of the rights of the accused to the due process of the law and therefore forms part of the human rights discourse. Due process of the law in human rights jurisprudence under both international and municipal laws is an all embracing concept and in the context of bail, as indicated earlier, includes the right to liberty, fair trial and the presumption of innocence.
As stated by Hiemstra CJ in the case of Smith v Attorney-General, Bophuthatswana (4),
"Every man is entitled to 'due process of the law'. This principle is so ancient that it can be traced back to the Magna Carta"
Bail may be defined as security to procure the release of a person from legal custody together with an undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court. …