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CHIEF Justice Luke Malaba took the opportunity when opening the legal year on Monday to carefully set out the dual independence of those involved in the criminal justice system, and the rights retained by an accused person until they are properly convicted.
The judiciary, all the way down from the Chief Justice to the most junior magistrate, are independent and cannot be given orders by anyone to convict or acquit an accused, or for that matter to remand an arrested person or to give or withhold bail.
They make their decisions based on the facts. There are appeal procedures, usually a maximum of two layers depending on which court is making the decisions, with the Constitutional Court able to step in if there is a non-trivial query over how exactly a constitutional right is applied in a particular case, or even if the law being used is constitutional.
This theory is backed by practical safeguards, largely the extreme difficulty of firing a judge or even a magistrate.
Judges can be dismissed, but it is a very complex process starting with the accumulation of enough evidence to at least make the Judicial Service Commission, itself an independent body with most of its members being members of the judiciary or the legal profession, take notice and come to the conclusion that a more formal investigation is required.
The President can launch that investigation, but only after the commission has made the recommendation.
The investigation needs to be presided over by a retired judge, someone who themselves is incredibly independent since there is no pressure that can be applied, along with a couple of independent lawyers. And that tribunal makes the final recommendation.
That triple process gives judges incredible security. We note that making judgments the population and the Government dislike cannot be a ground for even a preliminary investigation.
Magistrates, since they were removed from the general civil service and brought under the Judicial Service Commission, also have practical security from disciplinary action for making unpopular decisions. That is not a ground for action.
But what perhaps many do not realise is that the sheer start of a criminal prosecution is also done by an independent body, the National Prosecution Authority headed by the Prosecutor-General, who has the sort of security of tenure given to a judge and so has practical as well as constitutional independence.
Chief Justice Malaba made it clear that no one outside the NPA can make a decision to prosecute, neither the police or other investigating agency, nor the police as an arresting agency, nor even himself and the rest of the judiciary.
A judge or magistrate can refuse to remand an accused, or can in particular circumstances find the charge is so badly drawn up or bears so little relationship to a possible crime committed by the accused, that it should be dropped.
Magistrates and judges can also find the accused not guilty after the prosecution case, if the prosecution has not even made a case.
The Chief Justice touched on bail. This is one of those decisions that is made by the magistrate or judge before whom the accused appears and applies for bail. So no one else except a judicial officer can make the decision to grant or withhold bail.
As the Chief Justice noted, bail is both a constitutional and a legal right. An accused person has the right to be admitted to reasonable bail unless there are good reasons not refuse it, and basically there are only three grounds to refuse bail: that the accused may skip the trial, that the accused may interfere with the criminal investigation; or that the accused may re-offend while out on bail.
The first is the one everyone knows about, that the accused person might just vanish. That has to be assessed by the court and there a lot of practical precedents to help the court, basically how other accused in similar circumstances may have behaved. Few argue over this.
The second is whether the accused will interfere with the investigation.
This becomes important in cases like fraud and corruption, where very often a person is arrested sometime before there is adequate evidence to mount a prosecution.
The reason for an early arrest is obvious, that if someone who is corrupt hears that investigators are after them they might be able to destroy or change evidence or get potential witnesses to all give the same false story.
An early arrest blocks that, since usually someone arrested on corruption charges is also suspended from their position, and forbidden access to the building where the records, or hard drives, are kept.
But both the early arrest, and the subsequent suspension and barring of access, make bail easier since the judicial officer is faced with the fact that there could be a long period until the trial, and the fact that the accused is simply not able to interfere with the investigation, but the formal bail condition adds an order to the practical measures already taken.
Many have suggested that a corruption arrest should only be made when there is overwhelming evidence, but in this particular set of offences, overwhelming evidence can often only be obtained once the accused is out of the way and on ice, either in remand prison or so constrained by bail conditions and administrative procedures that they cannot mess up the probe.
Re-offending, common in some criminal matters, possible in others, is fairly unlikely in a corruption case, since everyone is gazing at the person’s records and lifestyles.
The upshot is that usually the tests come out in favour of the bail application. It is not “catch and release” but rather a magistrate or judge looking at the facts and finding that since there is little chance of the accused vanishing, interfering with the investigation, or re-offending then bail must be granted.
Remand prison is not and can never be punishment. It is there if the person cannot be trusted to appear for trial, cannot be trusted not to actively interfere in the investigation, or cannot be trusted on their own record of past behaviour not to re-offend.
And no one but a magistrate or judge can give or refuse bail, whatever the investigators or others might want. It is these sort of problems that make corruption trials so difficult, and why ever greater stress is being put into the civil procedures to strip the corrupt person of their ill-gotten gains, as well as pushing along with the investigations to see if all the secret deals along the corrupt highway can be prised open.
But meanwhile, a corrupt person, or allegedly corrupt person, retains their rights, and we should be grateful that the judiciary want to enforce rights.
It could be us who are wrongly charged one day, and even if we are correctly charged, we still have the right to a full trial. Only an independent judiciary can protect us.
Online Reporter