By: Augustine Sorie-Sengbe Marrah Esq
The body authorized to interpret the provisions in the twin UN covenants on human rights has interpreted the right to liberty and the presumption of innocence to mean that ‘bail should be granted as a rule and not the exception’. In essence, the admission of persons to bail is at the very heart of the spirit and intendment of the right to liberty and the right to be presumed innocent until proven guilty.
While the ICCPR does not have a specific provision on the right to bail, the said right to bail is inextricably bound with the presumption of innocence right. It seems international human right’s rationale for granting bail is the right to be presumed innocent (ei incumbit probatio qui dicit, non qui negatone is considered innocent until proven guilty).
In a comparative context, the South African Constitution, there is a right to be released from detention albeit with limitations. The constitutional court of South Africa has held in regard this provision as follows: 18 Section 35(1)(f) in its context, makes three things plain. The first is that the Constitution expressly acknowledges and sanctions that people may be arrested for allegedly having committed offences, and may for that reason is detained in custody.
The Constitution itself therefore places a limitation on the liberty interest protected by s 12.14. The second is that notwithstanding lawful arrest, the person concerned has a right, but a circumscribed one, to be released from custody subject to reasonable conditions. 4. The economic implications of the rampancy of refusal to admit persons to bail pending trial Sierra Leone is one of the least developed countries on the planet despite its numerous natural resources.
What this means is that the economic livelihood of her people are severely constrained. Recently UNDP estimates that about 70% of the youthful population of Sierra Leoneare unemployed. 19 In current times, economic progress has 17 Hill and Hill v. Spain [2 April 1997, UNHRC, 526/1993; Violation of Article 9(3)] (para. 12.3) 18 Bongani Dlamini v The State and Others CCT 21/98; Per Kriegler J, para.6. 19 http://www.sl.undp.org/content/sierraleone/en/home/countryinfo.html 8 plateaued out following the Ebola outbreak and drop in the iron ore prices (which had become the nation’s economic mainstay).
With the population of the sole maximum prison being almost double its capacity, there are no doubt regarding the huge economic implications in terms of administrative and other costs in running and maintaining security in and around the prison. The author argues that the effect of the court’s pervasive refusal to exercise its judicial discretion in the admission of bail has double-fold economic implications.
Chiefly, it means spending national resources (precious taxpayers’ money) on a category of inmates which could have been avoided by the grant of bail and secondly, disruption of the economic and social livelihoods of the very persons remanded. 4.1 High cost on national budget in the schedule to the Appropriation Act 2017, which is the national budget for the fiscal year 2017/2018, Le.87.9 billion is allocated in the said budget to the Sierra Leone Police while Le.34.3 billion is allocated to the Sierra Leone Correctional Services. 20 The allocation to the correctional services is laudable as compared to previous allocations and also it is almost half of what is allocated to the police force.
However, it is worthy to note that if a preventative (police) rather than a curative (incarceration) approach were adopted, the police would have been allocated thrice the sum allocated to the correctional services so that crimes are prevented and not merely prosecuted and criminals incarcerated. Such approach might substantially help in reducing the high rate of commission and prosecution of crimes and that would naturally minimize the costs in maintaining or running the correctional services.
Clearly there is a cost burden involved in refusing to admit accused persons to bail and even more so in the rampancy of punitive sentences (rather than the imposition of fines, where that is statutorily possible). There is unanimity of opinion on the manifest weakness of the criminal justice system of Sierra Leone in both national and 20 http://politicosl.com/articles/sierra-leone-amends-tax-regime-2017-budget (accessed 10/03/2017) 9 international reports.21 The mass detention of persons who are refused bail (which is about half the population of the said maximum prison) clearly is not a depiction of the strength of the criminal justice system but a glaring weakness.
Strong criminal justice systems even admit accused persons charged with murder to bail (the recent example is Oscar Pistorius who was admitted to bail while facing trial for murder in South Africa). The judicial attitude in refusing bail in cases of misdemeanors is putting a strain on the national budget and most certainly an economic burden on the correctional services to keep, provide security and daily provisions for the many inmates on remand.
The author did not find any literature on the cost of keeping one person on remand in the Pademba Road Maximum prison, but it is obvious that with the rising number of inmates on remand comes ranging logistical (resource) issues. 4.2 Disruption of economic livelihood Contemporary social and economic commentators have made a case against mass incarceration especially in countries like the US22 and other developed countries.
The author identifies with those arguments and will state that not only does the refusal to admit persons to bail by the courts result in a pressure on the meager natural resources but it also does disservice to the economic wellbeing of those persons refused bail.
Firstly, a remanded accused person is deprived of economic opportunities and some who are employed would stand the risk of losing their jobs while on remand. Secondly the labour market of Sierra Leone is denied the skills and potentials of the horde of inmates on remand and for a nation with huge human resource deficit. This is certainly not in the economic interest of the nation. Thirdly, most people in Sierra Leone like many Sub-Saharan African societies are family oriented which means that the relatives/families that depend on the income or resources of those inmates on remand would be economically deprived and those dependents might very well end up 21 The Sierra Leone Human Right Report 2016; World Justice Project, Rule of Law Index 2016 data.worldjusticeproject.org (data on Sierra Leone at page 133) 22 Grace Wyler, The Mass Incarceration Problem in America, https://news.vice.com/article/the-massincarceration-problem-in-america (accessed 10/03/2017) 10 committing crimes in their struggle to survive.
Abrams writing on the “Lost Productivity and the Value of Freedom” states that: 23 While incarcerated, offenders are restricted from performing work that could be beneficial both to themselves and to society. They also lose a number of other opportunities afforded to those who are free… So not only is the crowd of inmates on remand by reason of not being admitted to bail a stress on taxpayer’s money it is also economically disempowering for those people who could otherwise be on bail and continue to be economically useful until they are convicted.
So it cannot be more patent that the rampancy of judicial refusal to admit persons to bail is economically unhelpful for Sierra Leone. And a disruption of the economic livelihood of those persons who even though not convicted has begun to pay the economic price in addition to the restriction of their personal freedom of movement.
Conclusively, it is about time that the courts approached the issue and practice of bail with a human right and economic perspective. Firstly, as discussed supra, a conjunctive interpretation of the right to liberty and the presumption of innocence provisions suggest that bail should not be approached without the lens of the human rights of the accused persons.
Fundamental right is or should be the bedrock of every criminal justice system. Sadly, this is hardly the case in the corridors of justice in Sierra Leone. The author views rights not as favours doled out to a helpless, dying or impoverished people, but as core human values and entitlements that are vested in every human and where they are recognized by a nation’s constitution, they must be accorded the utmost respect in every judicial decision involving them.
The author is aware of a preliminary work in developing bail and sentencing guidelines. It is a commendable step though a belated one and it is hoped that the said guidelines would be human right-centred 23 Abrams, David S., “The Imprisoner’s Dilemma: A Cost-Benefit Approach to Incarceration” (2013). Faculty Scholarship paper 553 at page 948. http://scholarship.law.upenn.edu/faculty_scholarship/553 (accessed on 23/02/2017) 11 and would accelerate the demise of the inconsistency of the reasons in the consistency of the refusal of bail by the lower and upper bench.
Also as canvassed supra, a cost–benefit approach to remanding persons in the correctional services should be adopted by the courts especially at this time when the bail guidelines are being developed. The large number of inmates on remand is a direct result of the frugal exercise of the judicial discretion to grant bail and the resulting economic consequences of the same are avoidable and should be avoided.
It would be prudent to use the modest national resources to rehabilitate convicted prisoners so as to help them re-integrate into society and not to spend on remand prisoners resources that could be avoided in the first place. Remand inmates who are eventually discharged or acquitted are never really compensated by the state even though they would have lost several years of their economic lifespan.
It is about time that the courts took into consideration the economic implications of their commonplace refusal to admit accused persons or defendants to bail on the nation’s budget and the resulting economic deprivations of those persons. The author fully understands the need to have persons who face prosecutions on summary trial or trial to be available at all times for prosecution/trial, should also be given due consideration in the admission of bail of accused persons. That is why bail is and should be granted on terms and not with indiscretion. Because if bail is not granted on terms/conditions, accused persons might flee prosecution and victims would be denied their own right to justice.
The author would also suggest that payment of bonds be introduced in addition to sureties for felonious crimes. This would ensure that in breach of any conditions of a bail, such sum(s) could be made payable to either the state or the victim in cases of flight. So while protecting the rights of accused persons and victims, the economics is in order