WINDHOEK, Sept. 19 – Bail is a procedural device to balance competing rights and as such, bail must be granted to the accused persons immediately after formal request for bail has been handed-in without further delay, according to Chief Justice Peter Shivute.
Pre-trail-incarceration may amount to punishment before conviction even if it is not intended to punish,hence the norm is that the accused person needs to enjoy the right to liberty, he added.
“An accused person who does not pose a danger to the public or the administration of justice should not be incarcerated unnecessarily before conviction. Such an accused person must be afforded the opportunity as much as possible to mobilize resources to prepare for the trial (and select) a legal practitioner of his or her choice,” Shivute said.
Currently, securing attendance at court in criminal cases is largely done through arrest and pre-trail detention to ensure that the accused person stands trail and does not abscond.
On one hand, the court must not necessarily keep an accused in detention who might later be found not guilty, while on the other hand, consideration must be given to the risk of harm posed to the community if such a person were to be released or if he or she re-offends or fails to appear in the court if not held in custody.
Shivute also said: “The court thus has to balance the individual liberties of the accused against the interest of the victim, the effectiveness of the administration of justice and the safety of the wider public.”
Stringent conditions such as a regular reporting to the police or a complete prohibition on travelling could be attached, all of which are aimed at making it difficult for the accused to abscond after being admitted to bail. – Jonsey Douglas