Online Reporter
Legal Position
Trust Maanda
EVERY person has a constitutional right to be tried without delay and within a reasonable time.
It is not permissible for an accused person to be continuously remanded to further dates without an explanation.
The prosecutor must always inform the court why a postponement is needed, instead of the matter being tried to finality.
The reasons for the postponement are many, but in many cases, you hear the prosecutor saying the witnesses’ statements are yet to be recorded, investigations are not yet complete, the witness was not served for court, the state is just not ready, and so forth.
All these delays cause prejudice to an accused who uses his money for travelling and costly legal costs, spares his time, leaves his other business undone, in order to attend court proceedings.
In order to prevent the delays from happening, the presiding officer must always demand reasons for the postponement to be given by the prosecutor.
Of course, there are times the delays are caused by the accused person himself or his legal practitioner.
The court still has to ask why the matter must be postponed. The court may order that the case must now be tried.
In order to prevent the delays, the Criminal Procedure and Evidence Act has provided in Section 167A what should be done where there is unreasonable delay in commencing or finalising the trial
A court before which criminal proceedings are pending shall investigate any delay in the completion of the proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, to the accused or his or her legal representative.
This assessment goes to a witness or other person concerned in the proceedings, or to the public interest.
In considering whether any delay is unreasonable the court shall consider all the circumstances of the case including: the extent of the delay, the reasons advanced for the delay, whether any person can be blamed for the delay; whether the accused has raised such objections to the delay as he or she might reasonably have been expected to have raised.
The court also considers the seriousness, extent or complexity of the charge or charges and any actual or potential prejudice which the delay may have caused to the State, to the accused or his or her legal representative or to any other person concerned in the proceedings.
Not only does this prejudice the accused. It prejudices the witnesses too, who come to testify in the matter. They waste their precious time and money in coming to court.
In some cases, the court itself may cause delays. Nothing has been said about what happens if the delay is caused by the court itself.
The court assesses the effect of the delay on the administration of justice. The court also considers the adverse effect on the interests of the public or the victims in the event of the prosecution being stopped or discontinued.
If the court finds that the completion of the proceedings is being unduly delayed; or there has been an unreasonable delay in bringing the accused to trial or in completing the trial; the court may issue such order as it considers appropriate in order to eliminate the delay and any prejudice arising from it or to prevent further delay or prejudice.
The court has various options open to it. It can refuse further postponement of the proceedings. In that case it orders that the matter should proceed to be heard. It can refuse further remand, leaving the prosecutor to proceed by serving fresh summons on the accused, when the state will be ready. This prevents the accused from just coming to court.
The court can grant a postponement subject to such conditions as the court may determine. This means that the court may endorse on the record that on the next date the matter has to proceed to be tired or the accused will be removed from remand.
The court can also order that the prosecution of the accused for the offence be permanently stayed. This means that the accused would never be tried again for the offence because the proceedings against him are permanently stayed. This amounts to an acquittal.
The Prosecutor-General may appeal against an order of permanent stay as if it were an acquittal of the accused.
One of the things the court can do is to refer the appropriate authority for an administrative investigation and possible disciplinary action against any person responsible for the delay.
An accused person has a right to request the court to intervene so that the delays caused may be stopped one way or the other by the court. An accused person has a right to be tried speedily, while the facts are still within his memory and witnesses alive.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646
