Monday, May 25, 2020

Will The 37 Accused Remain In Detention Till October?

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No justice system could close its eyes to such a system of justice. Two fundamental principles of criminal justice are at stake in this case. It is a fundamental principle of justice that justice delayed is justice denied. It is also a fundamental principle of justice that an accused person is presumed innocent until proven or has pleaded guilty.

This means that if a person is remanded in custody by a magistrates court he/she must be brought back to court within seven days. Interestingly enough when the thirty seven people appeared in court yesterday the court transferred the matter to the high court with the claim that it is beyond its competence to try them.

Incidentally the high court is on vacation and will not resume till October. This means that the accused persons will not be subjected to trial till October. Section 19 subsection (5) of the Constitution reads:

If any person arrested or detained as mentioned in subsection (3)(b) is not tried within a reasonable time, then without prejudice to any further proceedings which may be brought against him or her, he or she shall be released either unconditionally or upon reasonable conditions, including, in particular, such conditions as are reasonably necessary to ensure that he or she appears at a later date for trial or proceedings preliminary to trial.”

It is therefore absolutely clear that section 19 subsection (3)(b) makes it mandatory for a person who is arrested to be brought before a court within 72 hours. But if that person is brought before a court and is not tried within a reasonable period, he should be granted bail. As far as this provision is concerned, all offences are bailable as far as a person is not tried within a reasonable period.

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It is therefore important for the custodians of the justice system to intervene to prevent miscarriage of justice. No one should be remanded in custody by a court which claims to be incompetent to try a person especially when that same court claims to be incompetent to consider bail application. This cannot be right under standard of justice. Mockery of justice cannot be the characteristic of a democratic dispensation.

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