Experts say new bail laws will paper over the cracks, writes Marion Edmunds
THE government is promising stricter bail laws – despite little evidence that current laws are at fault. Legal experts argue that the decision will merely paper over failures in the criminal justice system and the bad decisions of inexperienced magistrates. They also warn that it might infringe human rights.
Justice Minister Dullah Omar was this week unable to provide any direct research to prove that the law was at fault – when the accused in serious cases obtained bail easily – rather than the officers of the criminal justice system. Nor was he able to pinpoint the legal loopholes through which accused are apparently escaping.
“The current law is working well and in the main is adequate, but for whatever reason, there are cases of extreme instances where people are granted bail in circumstances where it should not have been granted,” he said.
The amendments – which Omar flagged in Parliament last week – will make it difficult for anybody accused of serious offences such as rape, murder, drug-dealing and car-hijacking to get bail at all. It is also expected that night courts will be stopped, so that bail cannot be applied for after hours.
The lack of research about the effectiveness of these measures appears to confirm the fears of human rights organisations that the amendments have been made to appease the public and pre- empt criticism from opposition parties.
The Human Rights Commission believes the current law is more than adequate and the debate around legal amendments only shifts attention away from the real problems on the ground.
“If we amend bail laws tomorrow, the inefficient system will throw up a host of new problems in two months’ time. We can’t carry on amending laws to deal with structural inefficiencies,” said commissioner Jody Kollapen this week.
Since the bail law was tightened in 1995, the number of awaiting-trial prisoners has increased by 50%, indicating that the law is putting enormous pressure on the prison system. A quarter of all prisoners are awaiting trial. Correctional Services cannot cope with greater numbers.
Most commentators agree that neither magistrates nor prosecutors are adequately trained in existing bail laws.
Meanwhile, a pilot project by a New York organisation, Vera, and the Justice Department, will create the position of bail officer in the Mitchells Plain and Johannesburg magistrates’ courts. The officer will interview accused, take photographs for the record, brief the court, watch possible witness intimidation and monitor compliance with bail conditions.