Rescind that practice directive, Mr. Chief Justice

Kgosietsile Ngakaagae | Monday November 8, 2021 06:00

Why am I being so blunt with an institution I hold in such high regard, and under which I work. Every court I have been to knows how well I respect it. I have realised that the only way to defend this institution is to tell it the truth about itself, something we generally shy away from, as lawyers.

The High Court should be at the forefront in defending civil liberties. It should not be obsessed with enacting rules that make the enjoyment of liberties difficult. Let us examine the practice directive, issued by the Honourable Chief Justice.

The Practice Directive specifically targets access to the High Court in bail applications. The upshot of it is that no one will be heard on the question of bail, unless there is a record of proceedings of the court a quo, before the High Court. Registries have been told to refuse applications. Previously, this was a jurisprudential position reserved for bail pending appeal cases, where the guilt of a suspect had already been determined. In terms of this directive, a suspect, and a convict, will be treated the same way.

Now, the Administration of Justice (AoJ) is a very delinquent entity when it comes to preparing court records, and to service delivery in general. I have a case record that I have been awaiting for, for three years. Innocent suspects will rot in jail because of this directive. When it comes to case records, the AoJ, are plain hopeless, and the Honourable Chief Justice, and their Lordships know this.

How then does the AoJ make the hearing of bail applications conditional upon the production of something they are incapable of providing? This Practice Directive, must go. It is more chaotic that the imaginary chaos it seeks to cure. The High Court should stop behaving like a legislative, or prosecutorial chamber.

As the saying goes; the more the rules, the fewer the freedoms; the fewer the rules, the more the freedoms. We need rules that facilitate access to justice. We do not need rules that keep innocent people in jail because their Lordships feel bothered with urgent bail applications they are paid to preside over. We have seen rules coming from the High Court in recent times, the essence of which have been simply to make litigation harder.

We have seen automatic bars to pleadings the effect of which is to postpone cases by over a year, while parties chase curative interlocutory applications. The High Court has become authoritarian. We do not need more rules. We need more jurisprudence. That is what the institution is called for. It must concentrate on churning out good judgments that advance the enjoyment of liberties.

The AoJ must be reminded that there are consequences for denying suspects access to the High Court on matters of bail. Lives are practically ruined; families go through grave anguish; children are left without caregivers, and jobs are lost. More than anything, liberty is lost. The AoJ has reduced a constitutional right, to a privilege enjoyed at their leisure and pleasure.

The Directive states that the issue of management of bail petitions was discussed at Adansonia, in Francistown. The question, is, why did their Lordships think they have the writ to manage peoples liberties. Their duties are to adjudicate over the same, and to facilitate better access. Can their Lordships look inside their hearts and say that they have done the cause of justice good. Certainly not. A suspect cannot wait for a year in prison awaiting a court record. The AoJ is hopeless in that regard and that permits no argument at all.

The least the AoJ can do is to accept how it is failing suspects, and not to grandstand over the same question. The AoJ must atone for its sins by relaxing the rules, not coming up with the straight jacket legislation under the pretext of a Practice Directive.

Consider paragraph 7, of the Directive. There is a bold assertion that bail applications are not inherently urgent. Put simply, you are impounded by the rogue Directorate on Corruption and Economic Crime (DCEC) as a suspect. You must justify why your liberty is urgent. I maintain that no one, has any right to decree that the liberty of a citizen, who has not been found guilty of an offence, is not urgent. No citizen should be required to justify why their liberty is urgent. It makes no sense.

To subject the directive to the provisions of Section 18, of the Constitution, does not help. Section 18(1), generally requires a statutory notice. Section 18(3) proceedings relate to a situation when a matter arises in the course of proceedings. In the latter instance a procedure is followed under Order 70, of the High Court Rules.

That procedure requires time. In the former instance, you must begin with a statutory notice and go through the rules. When you are done, the Judge will tell you that his diary goes up to December, 2030, and that your matter will be heard in December, 2031.

The biggest problem with the AoJ is self denial. The AoJ cannot accept that they are the weakest link in the justice equation. Records take forever to be produced; there is understaffing in every sector and courts are overwhelmed.

Rescind that Practice Directive.