Editorial: In bail, the right balance is king

Many rightly find it incomprehensible how an accused person appearing to be making very little effort to abide by court-imposed conditions could be granted bail again and again. Indeed, the Lilu King saga gives rise to grave concern but it also brings to the fore two delicate issues: a person’s right to liberty and chronic court delays.

Judges and magistrates often find themselves between a rock and a hard place faced with the principle that liberty is the rule and its deprivation the exception. Balancing individual rights with public safety and not compromising justice is no mean feat, especially when the justice delivery chain faces so many problems.

Human rights must, of course, prevail. However, fears by society that discrimination could favour bad apples must be allayed, notably by the three institutions empowered to enforce the law.

Giving the judiciary the tools, the resources and the funds needed to keep up with the workload is a sine qua non. It will be a long journey, but every journey starts with the first step. Sadly, that significant step forward has yet to be made.

This very much depends on politicians or, rather, the government of the day. They must stop passing the buck, deciding in five-year cycles – if that long.

But, beyond that imperative, the judiciary, the court administration and all officers of the court, including, of course, lawyers and prosecutors, must resolve to avoid annoying situations like the one mentioned above.

There certainly needs to be more discipline in the manner proceedings before the court progress. Instances of judges and magistrates rebuking the prosecution – both the attorney general and the police – for undue delays are not rare.

One also expects better coordination between the attorney general and the police when reacting to requests for bail. This, especially, since it is now attorney general lawyers who conduct the prosecution in serious crimes before the magistrates’ court, assisted by the police, admittedly. In the notorious Lilu King case, the police prosecuting officer did not object to bail though the attorney general did.

Instances of defence lawyers not showing up or repeatedly asking for adjournments due to some other “more urgent case”, thus lengthening the process, are certainly not an exception. Most legal practitioners nowadays operate within a firm, which makes sharing ‘jobs’ more feasible.

At the end of the day, it is the presiding judge or magistrate who must exercise discipline in the courtroom. It is them who have to expedite – not rush – proceedings by vehemently objecting to any waste of time.

In ensuring human rights always prevail, they must appear to remain consistent when granting bail. Often, the court refuses bail on grounds that the accused is considered to be unreliable, hence, fuelling fear of absconding or reoffending.

Questions arise in Lilu King’s repeated granting of bail and one is justified suspecting there is more than meets the eye. He is facing very serious charges and, yet, magistrates still agreed to bail even after conditions imposed were breached and the police did not object. He was even given permission to remain outdoors beyond a court-imposed curfew to watch a boxing game.

Nobody is advocating removing bail, which remains a legal tool and a human rights safeguard. However, for society’s sake and even that of the accused, a robust effort must urgently be done to attack the core issue: court delays. In the meantime, discipline, coordination and consistency need to be conspicuous in every bail request and decision made.