LAW SOCIETY DISCOURSE The right to fair hearing
9(5< person has the right to a fair hearing both in civil and criminal proceedings. The subMect of this weeN¶s /aw 6ociety discourse entails due process of law and is founded on two main princi ples That all persons are to be treated eTually before the law and the courts, a public hearing with all due guarantees before a legally constituted, competent, independent and impartial court or tribunal established by law as well as the right to appeal. The effective pro tection of all human rights depends on the access of individuals to competent, independent and impartial courts which will administer Mustice fairly.
The &onstitution recognises this fundamental right to a fair hearing which is provided for in 6ection of the supreme law of the country. This provision guarantees that persons who are charged with a criminal offence are entitled to present a defence either di rectly or through a legal representative of their choice. This right ensures that criminal defendants have the right to a public trial without unnecessary delay, the presumption of innocence, the right to representation by a lawyer, the right to an impartial &ourt or tribunal, and the right to Nnow who their accusers are and the nature of the charges and evidence against them.
6ection ( ) of the &onstitution specifically provides that “,n the determination of civil rights and obli gations or any criminal charge, a person shall be given a fair and speedy public hearing within a reasonable time by an independent and impartial court or adMudicating authority established by law.´
Section 21(2) further goes on to provide that a person who is charged WITH A CRIMINAL OffENCE SHALL BE:
(a) presumed to be innocent until that person is proved or has pleaded guilty; informed as soon as reasonably practicable, in a language which that person understands and in sufficient detail, of the nature of the offence or charge; entitled to legal representation at the expense of the government in the case of any offence which carries a sentence of death or imprisonment for life; given adeTuate time and facilities for the preparation of the defence; permitted to present a defence before the court either directly or through a legal representative chosen by that person; afforded facilities to examine in (b) (c) (d) (e) (f)
THE CONSTITUTION
person or by a legal representative the witnesses called by the prose cution and to obtain the attendance of witnesses to testify on behalf of that person on the same conditions as those applying to witnesses called by the prosecution; and permitted to have, without pay ment, the assistance of an in terpreter if that person cannot understand the language used at the trial.
The /aw 6ociety discourse will ex amine some of these components of the right to fair trial below. (g)
THE PRESUMPTION OF INNOCENCE
$ fundamental principle behind the right to a fair trial is that every person accused of any crime should be pre sumed innocent until proven guilty by a court of law. ,t encompasses the right to be treated as an innocent person but does not guarantee that a person will remain free until their trial has conclud ed. ,n criminal cases, the prosecution or &rown bears the burden of establishing or proving the accused person¶s guilt beyond reasonable doubt, if that person is to be convicted.
The proof in such cases must be shown for every element of the crime the accused person is charged with. The presumption of innocence is not a mere formality; it is a matter of the most im portant substance in the proper admin istration of Mustice. $n explicit example of the presumption of innocence is an accused person who is denied bail. This does not affect the presumption of innocence of the accused person who must still be considered innocent until proven otherwise. ,n 0atsenMwa v The .ing ( of ) ( ) it was stated that “as enshrined in our law the accused person is presumed innocent, whether bail is granted or denied, until found guilty at the trial.´ of the nature of the charge
The constitutional right to be prompt ly informed of the nature and cause of the accusation against an accused is deeply rooted in one s constitutional rights to due process and the presump tion of innocence. 'ue process dictates that an accused must be fully informed of the reason and basis for their charge or indictment. The information provid ed must give details of both the law and the facts on which the charge is based. This allows an accused person to appropriately prepare their defence, because they are presumed to have no independent Nnowledge of the facts constituting the offence they have purportedly committed. ,n $ndaya v. 3eople 3hil. ( ), the court explained that the purpose of a written charge or indictment is to enable the accused to prepare their defence, to protect themselves against double Meopardy, and for the court to determine whether the facts alleged are sufficient in law to support a conviction. +ence, a complaint or information must set forth a “specific allegation of every fact and circumstances necessary to constitute the crime charged.´
THE RIGHT TO PUBLIC HEARINGS
Every person charged with an offence has the right to a public hearing which shall be held within reasonable time and must be followed by a public decision which will be supported by reasons for the particular decision.
6ection ( ) of the &onstitution provides that all proceedings of every court or adMudicating author ity shall be held in public. This is, however, subMect to the following limitations which are stipulated in 6ection ( ) of the &onstitution which provides that.
ING AUTHORITY –
(a) 0ay, unless it is otherwise provided by $ct of 3arliament, exclude from its proceedings persons other than the parties and their legal represent atives to such extent as the court may consider ±
(i) ,n circumstances where publicity may unduly preMudice the interests of defence, public safety, public order, Mustice, or public morality or would preMudice the welfare of persons under the age of eighteen years or as the court may deem appropriate; or
(ii) ,n interlocutory proceedings;
(b) 6hall, where it is so prescribed by a law that is reasonably reTuired in the interests of defence, public safety, public order, Mustice, public morality, the welfare of persons under the age of years or the protection of the private lives of the persons concerned in the proceed ings, exclude from its proceedings persons, other than the parties and their legal representatives, to such extent as is so prescribed.
THE RIGHT TO LEGAL REPRESENTATION
The right to legal representation in criminal proceedings is widely recog nised as one of the most vital pre reTui sites of the right to a fair trial in criminal Mustice. This right is two pronged in terms of the country¶s &onstitution. )irst, all persons are permitted to pres ent a defence before the court either directly or through a legal representa tive chosen by that person. 6econdly, an accused is actually entitled to legal representation at the expense of the 6tate in the case of offences which carry a death sentence or imprisonment for life. µ3ro deo¶ counsel is appointed by the 6tate, especially in cases where the accused person cannot afford a legal representative of his or her choice. The system of appointing pro deo counsel is an indispensable part of the proper administration of Mustice in many countries and it guarantees one¶s right to fair trial. /awyers are Ney to ensuring the protection of the right to fair trial when worNing to defend individuals charged with criminal offences. This is especially so where the offence car ries stiff sentences. Through a lawyer, accused persons are able to protect and establish their rights and defend them at all stages of the proceedings. /awyers combat impunity and their status as essential agents of the administration of Mustice is not in doubt.
This is the reason why a competent and independent legal representative is indispensible to assist the court in ensuring that the accused¶s rights are respected, that evidence against the accused is fully tested and legal principles are applied. ,n a previous discourse, the /aw 6ociety has stressed the importance of the independence of attorneys. The /aw 6ociety empha sised the right of attorneys to practice law freely as well as the accused per son¶s right to legal representation. The proper enMoyment of the rights of indi viduals in terms of the &onstitution lie in legal representation by a competent and independent lawyer. 2therwise, those rights cannot be meaningfully exercised. The duty of the /aw 6ociety, among others, is to ensure profession al and intellectual independence of attorneys which in turn facilitates the realisation of the rights conferred by the &onstitution on indidviduals.
EROSION OF THE RIGHT TO LEGAL REPRESENTATION
The /aw 6ociety has previously criticised the arrest of suspects who are taNen for confessions and thereafter released bacN to police custody without the benefit of legal representation or advice. This begs the Tuestion whether the confession is legally valid in the circumstances. 8nfortunately, the preMudice of the deprivation of this constitutionally guaranteed right to legal representation even at the early stages of the arrest of the accused person impacts the trial itself.
The /aw 6ociety has also noted with extreme concern the intimidation of lawyers representing persons accused of offences with a terrorism profile. The /aw 6ociety does not promote terrorist activities nor does it condone violence. This stance should not come as a surprise because terrorism and violence have no foundation in the &onstitution which the /aw 6ociety is duty bound to uphold as the supreme law of the land. +owever, the /aw 6ociety advocates for due process according to law. ,f lawyers are intim idated into abandoning, or not taNing, instructions from accused persons, the convictions that result from unrepre sented accused persons become tainted with illegality.