By Mabor Maker Dhelbeny
March 24, 2014 - In reference to the violated cessation of hostilities’ agreement which includes the status of political detainees signed on January 23rd 2014 between the government and rebel forces loyal to Dr. Riek; and despite the mounting pressure from international community, foreign diplomats and civil rights activists, South Sudan’s government made a decision abided by the said accord and thus released only seven former SPLM leaders detained after the December failed coup attempt of last year.
Implicitly, some people usually misconstrued the term ‘arrest’ and ‘detention’. In this scenario the difference should be made briefly between arrest and detention. ‘An arrest’ means a person is deprived of his or her liberty by authority into the custody of law whilst ‘a detention’ means that the offender or accused person is held in secure confinement prior to trial or a person is put into prison for a short period of time not exceeding 24 hours, especially for political reason. In such a situation of depriving a person of his or her liberty, the police have the responsibility to use only the reasonable physical force necessary to make an arrest. Of course the necessary force was used by the police during the arrest of eleven politicians on December 17th 2013 although some people exaggerated it to have been extortion.
BAIL, WHO’S JURISDICTION TO GRANT OR TO DENY IT
Since bail is one of the fundamental rights of an accused person, it should therefore be granted or denied in the exercise of judicial discretion. In other words, the power to grant or deny bail is therefore a discretion exercised by judicial officers whose task is to apply the law in a given case under certain prevailing circumstances. Bail, according to section 5(1) of the Code of Criminal Procedure Act No.5 of 2008 – means that “the money or sureties provided by the accused to guarantee that he or she shall appear in court at a later date or on call”. In simple words, bail may mean a sum of money in which an arrested person or someone else puts forward as a guarantee that the arrested person will attend his or her trial in a court of law at later date, but if the arrested person does not attend it, the money will be lost. In short a person granted bail undertakes to pay a specified sum of the amount to court if he or she fails to appear on the date set by the court (Oxford English Dictionary).
On 29 January, 2014 the Kenyan government has executed the bail, to bring the former seven political detainees under her custody without sureties based on the terms and conditions Juba and Nairobi have agreed thereto. I think one of these terms is that the detainees should stay in Kenyan territory, though they have been allowed to participate in Addis Ababa peace talks. This terms of agreement has been in conformity with section 124 (1) of the Code of Criminal Procedure Act No.5 of 2008 – that “a case of release on bail of an arrested person shall be allowed by another person executing a bail, to bring the arrested person with or without securities”. Nevertheless the step taken by the executive or the police to grant bail is unprecedented as it falls short of legal procedures and even the terms and conditions used thereof are deemed to have undermined the court’s jurisdiction under chapter X of the said Act.
Perhaps the former seven political detainees have an offence punishable with the fine only if at all according to the Investigator and that’s why the executive decided to release them on bail (s.125 of the same Act). Notwithstanding that section 25 of Code of Criminal Procedure Act No.5 of 2008, vigorously empowered “the Justice Minister to stay the criminal proceedings against any accused on reasonable grounds after completion of an investigation at any stage of inquiry but before trial. The Minister may inform the Magistrate in cognizance of offence or court conducting such trial that he intends to stay proceedings.” The fact that the eleven detainees were divided into three groups in which Group ‘’B’’ of seven politicians happen to be freed and en-route to Kenya have caused a lot of resentments to the public.
Since the trial has commenced on Tuesday, March 11, 2014 therefore the question that poses itself is that whether there are reasonable assurances that the arrested politicians (ex-seven SPLM political detainees) will appear before the court as required or not. Whether the seven ex-detainees released on bail under the custodian of Kenyan government would take heed on call or ignore it to come back and answer their charges in the court. In regard to who has jurisdiction to grant or to deny bail, either the executive or judiciary is a question of fact. The power of Executive, particularly the police to release the accused person on bail without charges prior to trial had been in its existence for a number of decades.
Recently, the December 15th incident had demonstrated that the South Sudan police forces might have exploited their physical force unnecessarily towards the arrest of accused coup plotters. This has been entrenched by Dr. Peter Adwok Nyaba (SSN, 9 Jan, 2014) as such, “the arrest of the so-called coup plotters whose number rose to eleven began on morning of Tuesday December 17th the Minister of Interior and Wild life Force, General Aleu Ayieny Aleu at the head of a tank brigade went to arrest Hon. Gier Chuang Aluong in his house. There, the force fired randomly in the house killing a police captain, nephew of Gier Chuang; his wife Adau had to escape through the back window and managed to get to the house of Rebecca Nyandeng Garang.”
The extensive powers of police however to arrest, to investigate the crime, to grant bail and to imposed the restrictions on the liberty of a person should constitutionally be reserved to the judiciary not the executive. This may in essence, reduce the infringement of individuals’ rights embodied in the Transitional Constitution, 2011. Such extensive powers to the police in order to impose bail conditions entail that the police will develop more capacity to put controls on people not charged with a criminal offence for an extended period of time.
Avoiding this constitutional rights implication and breach of individual’s right to liberty, a necessary mechanism must be adopted if not employed for the enhancement of liberty. This should be in line with section 8(1) of the Police Service Act No. 4 of 2009 which says: - “in order to discharge the duties provided for herein, police personnel shall have the following powers, subject to the provisions of the Code of Criminal Procedure Act, 2008 and any other law in force: (c) carry out criminal investigations under the directives of Public Prosecution Attorney; (g) grant bonds and bails”. Hence, to reduce the tension created by the constitution that allowed some executive members like police to have such powers.
In fact, the legal position that the accused person is entitled right to apply for bail but whether this constitutional right is respected by the court remains unquestionable. It’s well articulated in the Transitional Constitution, 2011 article 19 (4) that, “a person arrested by the police as part of an investigation may be held in detention for a period not exceeding 24 hours and if not released on bond to be produced in court. The court has authority to either remand the accused in prison or to release him or her on bail.”
With the regards to the constitutional right to bail, the bail for capital offences like treason in the above case of eleven should be denied until after six months on remand had the right procedural aspects been followed by the executive. This is what has been established by section 127(1) of the Code of Criminal Procedure Act No.5 of 2008, which says, “A person accused of an offence punishable with the death shall not be released on bail”. Since granting or denying of bail is authorized by the court (judiciary), therefore the granted bail without charges on seven political detainees by the executive has constrained our legal system. It has been pointed out in the case of Dr. Kizza Besigy vs. Uganda, Const. Ref. No. 20 of (2005) by the Constitutional Court: - “that the grant of bail is a discretion which the court exercises in accordance with the law”.
For court to grant the bail, an accused person must prove that certain exceptional circumstances exist which either justify his or her release on bail. For instance, severe illness certified by a medical officer of the prison or other relevant institutions that the accused cannot receive enough treatment whilst in custody or detention. But in case of an offence tried by both of the Lower Court and High Court for two months before trial, still court is obliged to release the accused person on conditions that it may think fit.
Does it mean that court may be the only institution or authority entrusted or vested with power to grant or deny bail through the exercise of judicial discretion, then how did the South Sudan government arrived at her decision to release the seven political detainees on bail, just after the investigations without charges? The answers to this question are already mentioned but I’ll leave the rest of them to my dear esteemed readers.
Bail is however considered by the authority administering it under certain circumstances, either to be granted or denied based on the nature of charges against the accused person or if an accused person has previous criminal records in which he or she had been convicted several times before, he or she may be denied bail. Such certain circumstances to be considered by the Public Prosecution Attorney, Magistrate or Court in granting or denying bail include: the protection of the public, the seriousness of the offence charged as mentioned above, the past criminal records of the accused and the probability of his or her appearance at an inquiry date for trial of the case according to section 128 of the said Act No.5 of 2008. Indeed the executive (police) and judiciary (court) hitherto had been at an unfair demerit in power for competing to grant or release the arrested persons on bail, but especially in the case of eleven SPLM political detainees there’s controversy in the legal regime.
RECOMMENDATIONS AND CONCLUSION
Therefore, the legal framework to be employed in order to achieve some objectives of South Sudan’s criminal justice systems and in case if the need may arise; the following suggestions are:
• The legislator must be advised to review the powers of police in regards to grant of bail, because if suspects are remanded in custody for six months before trial; hence this will create the environment for extortions from the accused persons by security agent in the sense that the accused persons will pay some of the mount in return to avoid incarceration.
• Judicial officers should not delay in the exercise of granting or denying bail, particularly in criminal cases so that the concurrence of powers between the court and police is avoided. This will ensure that the right of the accused person to fair, free and speedy trial is maintained. It may also act as a tool to decongest prisons, police cells and jails.
• Since an accused person is presumed innocent until proven guilty beyond reasonable doubt, he or she should be granted bail or be given an opportunity to prepare for his or her case. As it was pointed out in one of English cases, Woolmington vs. DPP (1935), that the case which set the law on how far the prosecution must prove its case to get conviction.
• As judiciary is the custodian of all the enacted laws, thus their implementation and application should encounter the aspirations of our people. In this respect the charges inflicted on the accused person as criminal offences which demand bail for six or two months before the trial, must be categorized and marked clearly to avoid inconvenience.
• In my view, there should be an amended article or clause in the next Permanent Constitution that provides as follows on bail: where a person is arrested in respect of criminal offence and for the case triable only by the High Court; if that person has been remanded in custody for six months before the case is committed to the High Court, that person shall be released on bail on certain conditions which the court may reasonably consider. Otherwise clause 4 of the said article 19 in Transitional Constitution is not enough and thus there’s no law governing bail except Criminal Procedure Act, 2008 which falls short in description in terms of days or months of granted bail.
In conclusion, if the above-mentioned issues suggested are due to be implemented with immediate effect, then the maintenance of our criminal justice system will come through the exchange of balance act, protection of the accuser’s rights and assurance that justice is seen to be done is done. Additionally, this case which seems to be very much interesting, may later on invite devil’s advocates who will express their opinions in order to provoke the debate in public domain, since the judges have avoided the trial in camera. Lastly but not the least, the non-procedural grant of bail by the executive will be another implication of the court to proceed with the prosecution of the accused coup plotters as well as lack of substantial evident raised by the lead defend lawyers in the special court formed by the President of Supreme Court under the provisions of section 16 of the Code of Criminal Procedure Act No.5 of 2008.
The author is a Legal Practitioner who lives in Juba. Email him at firstname.lastname@example.org