Preventing languishing in jail
When
I wrote about the Laws' Delays last week, I was referring to delays in
bringing forward laws or amendments that everyone agreed were essential,
but which were held back because of inefficient coordinating mechanisms
for all stakeholders. This factor, combined with the lethargy or perhaps
diffidence that affects so many government departments, leads to
protracted suffering for citizens.
But there is another area too in which the laws' delays cause
problems. This is systemic failure with regard to those in remand or
indicted, which results in cases not being settled for years.
I have referred to this previously, but now the Human Rights
Commission has done some investigation and produced a Preliminary Study
which includes some worrying statistics. It seems that 53 persons have
been in remand for over three years with no prospect of an end to their
cases. One has been in remand for over 15 years, having been arrested in
1996, while seven others have been in remand for over 10 years.
I was told about this when I met the chairman of the Human Rights
Commission, in pursuing fulfillment of the policy laid down by the
President in last year's budget speech.
There he spoke of the enormous wastage in human and material
resources caused by the practices of remanding practically
automatically, and of indiscriminate sentencing to jail, and suggested
alternative procedures.
In addition to greater reliance on non-custodial sentencing, these
could include much readier recourse to bail, as well as entrenching
systems to ensure swift disposal of cases.
Legal changes
I was thankful that the Human Rights Commission, in its much more
active incarnation now, has been looking at this and other problems, and
seeking structural solutions. We had previously had a meeting at the
Ministry of Rehabilitation and Prison Reforms, but that had dealt more
with other questions, so it had been decided to have a separate meeting
on this issue.
The task would I thought be easier because the ICRC had prepared a
preliminary paper on the subject, which they had shared with the
Ministry of Justice as well as Prison Reforms. The Minister of Justice
was keen to proceed, but even though the legal changes required were the
responsibility of his ministry, obviously the lead would have to be
taken by the ministry with specific responsibility.
It turned out that the Human Rights Commission had not seen the
paper, which is a pity, because they too would be in a position to
contribute to reform.
I am not sure whether the ICRC, which deals with government
departments, has a line of communication with the Human Rights
Commission, but that should be encouraged by government. Given the
responsibilities of the Commission, and the research they have done,
they could advise the Ministry of Justice as well as the Judicial
Services Commission on precisely what reforms are needed, with regard to
expanding the category of bailable offences, requesting the Police to
proceed on the basis of that category rather than that of non-bailable
offence, and instructing magistrates to exercise discretion liberally
when necessary.
Rigid guidelines
There should also be rigid guidelines, with exceptions having to be
justified, as to the time within indictments should be issued. In the
cases explored by the Human Rights Commission, indicting had taken a
couple of years or longer. Failure to apprehend others suspected of the
same offence should not lead to delays, but decisions ought rather to be
made swiftly on whether the evidence available is sufficient to indict
those in custody. If not, they should be released within a reasonable
time.
With regard to delays for those who are actually indicted, reasons
range from failure to translate necessary documents in time to required
reports not being available. We had discussed this previously, at
meetings of the Task Force, and I was pleased to find that, as
recommended, the Secretary to the Ministry of Justice has instituted
meetings at which officials from different departments responsible for
cases meet to ensure that whatever is needed will be available when the
case is called. I would have liked these to happen on a weekly basis,
but I suppose once a month will do, provided all those involved are well
prepared.
We have also suggested that courts should share information about the
speed with which they act. Currently the ministry is supposed to have
statistics as to cases settled and postponements granted, but there is
no compulsion to study these and issue advice accordingly to expedite
justice. If however such information were available to the public, on
websites, or at least in documentation readily examinable at each
courthouse, that would provide a much needed spur to dispose of matters
swiftly.
There is certainly no reason not to publicize such statistics, apart
from the old colonial mentality that information belongs to those in
authority unless there is good reason to share it. On the contrary, in
the modern age the principle should be that information belongs to the
people, and must be made available, unless there are good reasons,
involving security issues, why it should be withheld. |