Problematic section 61 remains unsettled

My default mode is that any legal matter that divides a tribunal or court must be heard by another platform. The High Court of Namibia recently had the opportunity to provide certainty in relation to the interpretation of section 61 of the Criminal Procedure Act (CPA) 1977 (Act No. 51 of 1977) as amended by section 3 of the Criminal Procedure Act 1991 (Act No. 5 of 1991).

However, at the end, it is safe to say that the court provided everything but certainty and a uniform position. While certain aspects of the court challenge were indeed put into proper context, several dimensions linger.

At the risk of sounding like a broken record, I cherish every opportunity that our courts are invited to provide legal certainty.

Greater credit must go to the litigants who opt for litigation and sustain the often-protracted court process. Therefore, specific mention must go to Mike Nghipunya for seeing this legal challenge through. It is satisfying to see that no suggestions of the litigation being frivolous or vexatious were made, further evidenced by the divergent routes taken by the full bench of the High Court.

Issue at hand

So, what is the issue with the amended section 61 of the CPA?

Essentially, it provides that an accused charged with offences under Part IV of Schedule 2 of the CPA (such as treason, sedition, murder and theft) may be denied bail if the court feels that "it is in the interest of the public or the administration of justice that the accused be retained in custody pending his or her trial".

Even if the court "is satisfied that it is unlikely that the accused, if released on bail, will abscond or interfere with any witness for the prosecution or with the police investigation".

It therefore follows that for any accused to be released on bail, the court must be satisfied that the granting of such bail will not prejudice the interest of the public or the administration of justice.

Naturally, the next question is: what must the accused show to satisfy the court in this regard?

While the provision requires the court to conduct an enquiry on the available facts before concluding either way, there doesn’t seem to be a fixed guide or framework that the court can rely on in assessing whether the interest of the public or the administration of justice will be compromised by the granting of bail or not.

Different thoughts

This is the issue that seems to have divided the High Court.

The court confirmed the long-held position that any lawful limitation to the rights and freedoms provided for in the Namibian Constitution must only be to the extent necessary and not unduly take away from the rights afforded by the supreme law.

The right to liberty is contained in Article 7 of the Constitution but may be limited in certain instances, such as lawful arrest and detention. When that happens, the detention must be necessary, and it must also be clear as to what the accused must show to regain freedom.

Central to the litigation in this instance, the yardstick or framework for determining the "interest of the public and the administration of justice" was not clear and consistent as required by law.

Delivering the majority decision, Justices Esi Schimming-Chase and Herman January conceded that "the provisions of section 61 are indeed not an easy hurdle for an accused person to cross".

However, the judges were quick to point out that, as challenging as it might be, and in the absence of a framework provided by the lawmakers (parliament), certain guidelines were laid down and "have been followed in our jurisprudence" to aid the conduct of the section 61 enquiry.

With that, the two judges maintained that "the hurdle is not insurmountable given the responsibility placed on a presiding officer to hold a proper and judicially acceptable enquiry".

The duo further required that in terms of procedure, the prosecution must "particularise on record the grounds why it opposes bail in the interest of the public or administration of justice".

Vagueness

Taking a different path, Justice Thomas Masuku indicated that the procedure requiring the prosecution to state the grounds for opposing bail would not assist the accused "at the point of deciding whether or not to bring the bail application in view of the decisive role played by the twin interests in the ultimate decision whether to grant bail or not".

A significant part of his judgement was dedicated to pointing out the vagueness in the meaning of the interest of the public or administration of justice, before holding that the relevant parts of section 61 were "unconstitutional for vagueness" as they "leave persons whose liberty is at risk in a position where they are unable to understand what it is that they can do to persuade the court that they are eminent candidates for admission to bail".

Justices Schimming-Chase and January gave a no-cost order, departing from the usual principle where costs follow suit, meaning the winning party must recoup its costs, albeit part of it. Maybe this is an implicit admission of how close the margins were. On his part, Justice Masuku granted costs in favour of Nghipunya.

With the above, it can be accepted that satisfying the "interest of the public or administration of justice" requirement as contained in section 61 of the CPA will likely continue to trouble accused persons, their legal representatives, the prosecution, and possibly the presiding officers.

Since arrests and detentions are common transactions, the requirements to be met for securing bail must be clear to the accused as he or she weighs the available options.

It is therefore my hope that this matter will be taken on appeal, for further ventilation. In the interim, there is nothing barring the legislature from providing the much-needed framework at its own instance.

Relying on the work of Lord Denning, who quoted Holt CJ, Justice Masuku included this part: "I have stirred these points, which wiser heads in time may settle".

I, too, align myself with that and remain hopeful.