The application of the constitutional right of presumption of innocence (Article 12(D) in the bail procedure)

Abstract

Abstract provided by author

The presumption of innocence is accepted as a fundamental principle in our criminal justice system. Namibia has elevated this right to constitutionally guaranteed right under Article 12 (d). The law regarding bail is both complex and necessary. Our courts have attempted to reconcile the right to be presumed innocent with the detention of suspected criminals. Chaos would erupt if the presumption of innocence were to be applied strictly in bail applications as it is or should be in the actual trial. There considerable confusion concerning the application of the presumption of innocence in bail applications, be it the use of evidence, the right to liberty or the onus which is arguably placed on the accused to show why he should be released on bail.

There is a need to review whether the presumption of innocence operates in bail hearings. In bail hearings it is necessary to strike a balance as far as can be done between protecting the liberty of the individual and the safe guarding and ensuring the proper 'administration of justice. It is said that, the presumption of innocence operates in favour of the applicant even where it is said that there is a strong prima facie case against him, but if there are indications that the proper administration of justice and the safeguarding¦ thereof may be defeated or frustrated if he is allowed out on bail, the court would be fully justified in refusing to allow him bail

There is a need to identify the purpose and the nature of bail in the quest of determining exactly how presumption of innocence is applied in bail hearings. Bail is normally denied in serious offences for the simple reason that the offence is serious, if one has regard to the fundamental freedoms entrenched in our constitution and the purpose of bail. The conclusion to be reached would be that bail is not of a punitive nature and it is simply a procedure of granting an accused his right to liberty conferred upon him by the constitution

In a discussion on the application of the right to presumption of innocence (article 12 (dj) It will be of necessity to discuss what type of evidence is admissible in bail applications and how this may also impact on the accused person's right to be presumed innocent until proven guilty by a competent court of law and in turn, how this will affect the accused right to a fair trial