Our laws are too lax
“OUR laws are too lax, our justice system too weak - particularly when it comes to violent, dangerous offenders” - Susana Martinez
Given the startling surge in major crimes across the country which include alarming increases in gruesome murders and gender-based violence (GBV) respectively, isn’t it becoming more imperative to reconsider reinstating - specifically for grave offenses - the once formidable yet controversial Non-Bailable Offences Act of 1993?
Hold your horses and hear me out, please before you hound or berate me for daring to propose the above. Instead, kindly take the time to read through the rest of this article and most importantly, respect my constitutional right to freedom of expression.
Lately, the above question has become a topical one that is being asked by a section of the population, including myself, as well as some members of the legislative arm of government, in light of heinous crimes that are increasingly being committed with impunity by ruthless and callous criminals in our neighbourhoods.
This legislation, although it was notorious at the time it was in place for its sternness and was perceived in some quarters as violating the legal concept of ‘presumed innocent until found guilty’, might prove effective as a deterrent against grave and gruesome offenses that are currently wreaking havoc in our society.
During a recent parliamentary session, some senators suggested that GBV and femicide should be treated or legalised as non-bailable offences and be declared a national disaster. Myself and many others have been pleading with past administrations including the present one to declare GBV as a national disaster for as long as I can recall, but in vain.
Non-bailable offences are serious offences where bail is a privilege and only the courts can grant it. On being arrested and taken into custody for a serious or non-bailable crime, a person cannot ask to be released on bail as a matter of right. That is unfortunately, the spectre of the non-bailable legislation.
CONCERN
The senators expressed concern about the high levels of GBV and femicide in the country. According to media reports, more than 14 678 cases were reported through the National Surveillance System for Violence (NSSV). The senators emphasised the need to expand State intervention to combat GBV. They also raised concerns about the granting of bail and extended trials for gender-based violence suspects.
On the flip side, in the past there were significant concerns brought up by certain groups about the constitutionality of categorising certain crimes as non-bailable offences. Concerns were raised questioning the fairness or morality of denying suspects their right to being granted bail, especially in regards to suspects’ rights under the ‘presumed innocent until proven guilty’ principle.
The topic of non-bailable offences has always sparked controversy in legal and moral discussions. Some believe that non-bailable crimes are necessary to protect public safety, while others argue that they can infringe upon the fundamental right to personal liberty.
Before I proceed with the theme of this article, allow me to take you down memory lane.
Once upon a time in the year 1993 if I recall correctly, a government gazette was published listing as non-bailable certain offences which included murder, rape, robbery and other offences. It was a legislation that raised a furore in many circles particularly the country’s Law Society that was in office at the time. The law was later repealed after a public outcry which included among others concerns, the violation of the innocent until proven guilty concept.
PUNISHING
If my memory serves me well, in or around 2010, the late Prime Minister Barnabas Dlamini proposed revising the Non-Bailable Offences law. However, this proposal was strongly opposed and dismissed by the Law Society of Swaziland at the time. The Society argued that the Non-Bailable law was akin to punishing someone who had not been convicted, and instead suggested that the government should prioritise improving the efficiency of the justice system rather than introducing a new law.
The Law Society’s argument was based on the principle that a person is considered innocent until proven guilty by a court of law. Therefore, they argued that it was unjust to detain someone in jail for a charge that had not been tested and proven in court. Instead of implementing a Non-Bailable Offences law, the Law Society suggested that the government should focus on improving the efficiency of the justice system.
This, the Law Society argued, included hiring more judges, magistrates, and prosecutors to ensure that cases were processed and tried within a reasonable timeframe, ideally within six months. By so doing, individuals would have their cases heard and resolved more quickly, ensuring a fair and timely delivery of justice.
Two weeks ago in this column, I made a passionate plea to the three arms of government, specifically the judiciary to consider being stringent in granting bail to repeat offenders with a history of violence specifically against women.
This was in light of the release on bail of one Bhekumuzi Mbingo, who allegedly went on to brutally murder a 16 year-old girl in the Thulwane, Timbutini area in the Mafutseni constituency. Allegations are to the effect that the suspect is no stranger to violent behaviour against women, having previously allegedly murdered two or so women. The burning question is on what grounds was this monster granted bail when he allegedly had such a horrendous record of violence against women.
In my two cents worth of opinion, granting bail to such suspects who have previous records of violent behaviour against women is a recipe for disaster. Mbingo allegedly abused his release on bail, violating whatever bail conditions set - and struck. He brutally ended the life of an innocent girl.
The child Mplilwenhle Mavimbela now lies dead, buried deep down in the bowels of the earth while her alleged killer, a sadistic human predator is still on the run.Who knows, he might strike again.
Let us now dissect the pros and cons of granting bail to suspects accused of committing serious crimes and in conclusion, decide if suspects accused of grievous crimes like murder and/or GBV deserve to be granted bail or not..
We have to be honest with ourselves and objectively take it into consideration that releasing suspects on bail is indeed a critical aspect of the criminal justice system. It allows individuals who have been accused of a crime to be released from custody while they await their trial, under the condition that they will return for their court dates.
According to my understanding, on the one hand, one of the primary purposes of bail is to ensure the accused’s appearance in court. By allowing them to be released from custody, it upholds the principle of ‘innocent until proven guilty’ and recognises their right to freedom during the pre-trial phase. This is an important aspect of the justice system as it prevents unnecessary detention and allows individuals to continue with their lives while their case is being processed.
SAFETY
However, on the other hand, the practice of releasing suspects on bail also raises concerns regarding public safety and potential flight risks. The former - that is, public safety - is what concerns some of us the most. Common sense dictates that hardened criminals who are repeat offenders are more likely to engage in serious crimes while out on bail. The Thulwane murder suspect’s case is a classic example of the risk associated with releasing suspects on bail who have a record of habitual engagement in gruesome crimes.
There is more often than not, a strong possibility that such individuals as Mbingo, who are released on bail may pose a serious risk to the community if they were previously involved in violent or dangerous crimes. Crime is addictive. That is an indisputable fact. I can equate releasing such dangerous suspect on bail to live among communities to priming a live grenade, leave it in a public place. When, how and under what conditions it will eventually explode I leave that to your imagination...
Finally, let’s talk about the importance of the presumption of innocence, shall we?
The pros: You see, although it might not go down well with some of us, releasing suspects on bail is also said to be about upholding the fundamental principle of ‘innocent until proven guilty’. It is about giving individuals the chance to await trial outside of jail, affirming their right to freedom while they wait for due process to take its course.
Bail is just not only about legal stuff, it is also about enabling suspects to keep their jobs, support their families, and take care of their personal responsibilities while they await for trial. This way, innocent individuals do not have to suffer unnecessary hardships like losing their jobs or facing family disruptions due to pretrial detention.
Releasing suspects on bail has the advantage of actually helping ease overcrowding in prisons by reducing the number of pretrial detainees behind bars. This not only saves costs for the criminal justice system but also ensures that taxpayers’ moneys are used more efficiently in other areas where most needed.
That said, let us consider the disadvantages (cons) of releasing suspects on bail. The most important disadvantage some of us are concerned about is, you guessed right - public safety concerns.
DISADVANTAGE
One disadvantage of releasing suspects on bail is the potential risk they pose to public safety if they commit another offence while out on release. Don’t deceive yourself, criminals are very smart, cunning and calculating. They wouldn’t hesitate to abuse their bail conditions to their criminal advantage. Without proper monitoring, some individuals have the propensity to engage in more criminal activities during the pre-trial period whist out on bail.
There is also the risk or worry flight risk - that suspects released on bail might not show up for their court dates, especially if they have strong reasons to avoid prosecution. High-risk offenders with adequate resources might choose to run away instead of facing trial, which disrupts or undermines the whole judicial process. We live in an undemocratic country and it is a stark reality that if a non-bailable law were to be legislated the propensity to abuse such by government - especially this government - is a reality.
Advocating for non-bailable offences can lead to abuse of power. We’ve experienced it before in this country many decades ago where political opponents of the regime were detained indefinitely under the 60-Day Detention Without Trial Order. Non-bailable offences can be manipulated to silence political opposition, unfairly single out individuals, and limit freedom of expression.
The vague and broad nature of non-bailable offences allows authorities to charge someone with such a crime just for expressing a different viewpoint or criticising the government. This can suppress free speech and violate the right to speak freely. Rings any bells?
What about the potentially devastating impact the releasing of suspects on bail before trial has on families or relatives of victims of criminality, especially those of the calibre of Bhekumuzi Mbingo, who are accused of killing their victims?
We’ve previously witnessed alleged murderers being released on bail not very long after committing heinous crimes in this country. This can be very distressing for victims, their families and witnesses who might unexpectedly encounter them outside of legal proceedings. It’s important to consider the impact on those affected by the alleged crimes.
The late Mplilwenhle Mavimbela of Thulwane paid the ultimate price - an excruciating death - at the hands of a brute, merely due to her parents reporting the sadistic behaviour of her alleged assailant’s prior , aggressive behaviour towards her.
In conclusion, denying bail to such criminals ensures that the victims and their families are safe from revenge attacks. As much as the presumption of innocence before being found guilty, is a legal requirement, it is my humble opinion that judges should endeavour to strike a balance between ensuring the rights of suspects are respected and considerations for public safety.
Wishing everyone a splendid Sunday and week ahead. Peace! Shalom!
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‘‘Let us now dissect the pros and cons of granting bail to suspects accused of committing serious crimes and in conclusion, decide if suspects accused of grievous crimes like murder and/or GBV deserve to be granted bail or not.”