Consequently, all those alleged to be responsible for the political mêlée in Kono and Bo, including an opposition Sierra Leone Peoples Party (SLPP) Member of Parliament Foday Rado Yokie, were arrested, charged and arraigned in a Freetown Magistrate Court. The initial charges have been substituted with a consolidated charge, and it reads as follows: arson, malicious damage, wounding, wounding with intent and riotous conduct. After refusing bail during the first and second hearings, the learned Magistrate J.O Wellington released the accused on bail at their third appearance. It is curious that after two previous applications had been objected to by the prosecution – led by the Attorney General and Minister of Justice Frank Kargbo – there was no objection to bail at the third appearance. What had essentially changed during the interval between the first and third application is a matter for the Magistrate or the court to inform the public.. In granting the bail, though, the Magistrate ordered that the accused persons should not enter the jurisdictions where the alleged crimes were committed (Bo and Kono) without the express authorization of the Court Registry.
The initial refusal of bail by the presiding Magistrate generated mixed reactions from the public, particularly in the case of the Member of Parliament, Foday Rado Yokie, with conspiracy theories ‘triumphing’ over deductive reasoning. In fact, the allegations became louder after bail was subsequently granted, even if, without any significant material changes in the status of the accused or the trials. For some SLPP partisans, the earlier refusals were only a ploy to punish the accused persons. For others, it was a way of sending a strong message to all that impunity had finally reached its waterloo in our jurisdiction. This piece seeks to stimulate further discourse on bail as a fair trial provision, with particular reference to the instant case and without prejudice to other cases being heard in court.
Bail, according to Black’s Law Dictionary 7th Edition, is “to obtain the release of (oneself or another) by providing security for future appearance”. Also, it refers to a security such as cash or a bond; especially security required by a court of law for the release of a prisoner who must appear at a future time. In fact, it is a constitutional right in most jurisdictions and as such, judges must explain why that right should be denied in the particular circumstance of a case. The right to bail is a by-product of the right to be presumed innocent until proven guilty in a court of competent jurisdiction. This right is a basis for the ‘equality of arms’ principle and it is fundamental for both common and civil law systems. It requires, inter alia, that when carrying out the duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt shall benefit the accused. The presumption of innocence also applies to judicial pronouncements. The presumption of innocence will be violated if a judicial decision concerning an accused reflects an opinion that he is guilty.
In Sierra Leone, the presumption of innocence is reflected in Section 79 of the Criminal Procedure Act 1965, which establishes a general presumption in favour of bail. In adjudicating a bail application, a Judge is required to consider the nature of the offence, gravity of the punishment, possibility of accused turning up for trial, and possibility of accused interfering with witnesses. A person charged with murder or treason should not get bail unless admitted by a Judge. As the Bail Policy explains, granting bail for these crimes is only meant to occur in extreme situations. For example, if an accused has been incarcerated for many years without trial. For felonies other than murder, the Judge is to grant bail if he thinks it fit. And, for all other offences (mostly misdemeanors), the Judge is to permit bail unless he “sees good reason to the contrary”. So, although bail is a right, in certain cases, to be granted or refused bail is a matter of judicial discretion to be exercised judiciously, taking constitutional, statutory provisions, and all surrounding circumstances into consideration.
That said, the unfettered discretionary power regarding bail has sometimes been susceptible to abuse in criminal matters. The ongoing matter between the State versus those allegedly responsible for the Bo and Kono conflicts has only reinforced public suspicion. On the third appearance, the prosecution dropped the initial charges and replaced them with a consolidated charge. Following a change of strategy by the prosecution, the defence made a bail application on grounds that the consolidated charges meant that the prosecution had completed its investigations.
The defence also argued that the right of the accused to enjoy presumption of innocence had to be taken into consideration as they had already spent more than 10 days in detention. The Attorney-General and Minister of Justice did not object to bail in principle, but implored the Magistrate to consider the seriousness of the offence. He recommended that should the Magistrate use his judicial discretion to grant bail, the accused should be willing to stay in the Western Area – to avoid the locality of the incident for the safety of witnesses. The Magistrate, after noting the submissions of counsel on both sides, went ahead and classified the charges, granted bail and stated the bail conditions.
The euphoria that greeted the granting of bail by mostly relatives and party stalwarts has left little room to analyze the reason for the decision. We at CARL welcome the Magistrate’s decision to release the accused on bail as it represents a critical step in promoting their rights. Unjustified, prolonged pre-trial detention in less than sanitary conditions constitutes a breach of an accused right. Having said that, the disturbing reality is that the presiding Magistrate stopped short of explaining explicitly what had significantly changed in the circumstances of the accused in granting bail, thereby leaving many questions unanswered. Is it that the consolidated charges are significantly different in terms of gravity from the previous ones? Or, were assurances from the defence counsel that the accused were no flight risk more plausible than they were before? Or, is it that there are no substantive evidence to support the claim by the Attorney-General and Minister of Justice that there was the possibility of accused interfering with witnesses?
Hon. Foday Rado Yokie
While we respect the discretionary powers of the Magistrate, it certainly serves the interests of justice for Members of the Bench to provide explanations for decisions they make. That’s accountability! In the proper administration of criminal justice, it is necessary to ensure that judicial discretions, insofar as they relate to the rights of the accused, are used in the best interests of justice. It is so because in criminal cases, when the state has marshalled its resources to accuse an individual, only the courts can “do justice”. And, the right to bail is imperative.
It is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A Judge should grant or refuse bail based on what is judicially known to him and not based on other considerations that have the tendency to undermine the best interests of justice. It is a responsibility imposed on Judges to enable them dispense justice impartially on the basis of the law and the evidence, without external pressure or influence and without fear of interference from anyone.
Since the accused persons are now on bail, CARL hopes that the trial is conducted within a reasonable time. This right protects the parties against ‘excessive procedural delays’. It further enlightens the importance of rendering justice without delays, as it has the potential of undermining effective and credible justice system. It also ensures that the person charged with an offence does not remain too long in a state of uncertainty about his fate. Yes, bringing a speedy and fair closure to judicial processes for both the victims and perpetrators is a matter of right.
This case certainly represents a litmus test for the judiciary’s commitment to protecting constitutionally guaranteed rights, particularly in the run up to elections. If this matter is disposed of in an efficient manner, it would encourage politicians to file election related complaints with the courts, with a full assurance that they will get a fair and speedy hearing, and receive a fair verdict.
If the judiciary is perceived by the public as an extension of the executive arm, public confidence in its credibility to impartially adjudicate particularly election-related complaints may suffer a nose dive. This could be disastrous as parties may be tempted to succumb to the temptations of using extra-judicial means in electoral disputes. This would ultimately increase the potential of violence in the lead up to, during and after elections. So, CARL implores all concerned: the prosecution, the defence and the judicial authorities to work together and expeditiously dispose of the cases in a fair manner.
