Bail not Jail |26 November 2019

“In 2015 Seychelles had 786 prisoners with an incarceration rate of 868 per 100,000 of the population which yet again topped the list of countries with the highest number of incarcerated prisoners per 100,000 people.” (from the internet)

What is the situation like today? The number of prisoners today stands at 329, this after the coming into force of MODA 2016 when 150 drug offenders were released and 86 prisoners were pardoned.

According to the BBC (November 21, 2019) Seychelles has the highest per capita heroin addicts in the world, estimated at 10% of the working population.

On figures obtained by the author, Seychelles is about to get another ‘first’ in the world. Of the 329 persons presently incarcerated 72, or 25%, are what is referred to as ‘remandees’. This figure does not include those on detention in police stations all over Mahé referred to as ‘101 remandees’. When one includes them the total number of persons on remand whether at the Bois De Rose Detention Centre, Montagne Posée prison or police stations could well be close to 100 persons, or 30% of the ‘prison’ population.

Unlike the Constitutions of other democratic countries where persons are presumed innocent until they either plead, or are found guilty, the Seychelles Constitution is very clear THEY ARE INNOCENT until they plead, or are found guilty. The question therefore is, why are 30% of persons whom the Constitution says are innocent being incarcerated?

The orders for ‘remand’ or ‘further remand’ is exclusively the domain of the judiciary whose policy has been, and continues to be that once an order for remand to custody has been made, bail will only be considered if the ‘remandee’ can satisfy the court that there has been “a change in circumstances” since the last order for remand was made. While the author understands that there are circumstances laid down in Article 18 (7) of the Constitution why bail should be denied among which are things like “there are substantial grounds for believing that the suspect will fail to appear for the trial, or will interfere with the witnesses or will otherwise obstruct the course of justice or will commit an offence while on release, or the suspect has been arrested pursuant to a previous breach of conditions of release for the same offence”.

Article 19 (12) states that a person who has been served with summons to appear for his case but fails to do so “shall be deemed to have consented to the trial taking place in the person’s absence”. So if he does not appear for the trial it will continue or take place in his absence. That should therefore not be a reason to remand a person plus the court has at its disposal several conditions it can impose to ensure that the person appears for his trial, and those conditions are regularly imposed by the courts.

What are the judicial justification for remanding a person to custody for periods of 6 months or more? How likely is it that a judge who has fortnightly extended the remand of a person for 6 months or more to acquit the person bearing in mind that the person was innocent all along? But more importantly can it be said that the accused was guaranteed his right to a fair trial before an independent and impartial court when it “automatically” without more, extended the remand sought by the State unless there is a “change in circumstance” the burden of which has to be borne by the accused?

Article 18 (10) guarantees a person who has been unlawfully detained to get compensation “including from the State, on whose behalf, or in the course of whose employment the unlawful arrest or detention was made or from both of them”. Despite the author having brought a couple of cases seeking compensation from the State before the Constitutional Court for persons who were acquitted, after having been remanded for extensive periods those cases were unceremoniously dismissed by the Constitutional Court. The result of those challenges has led to the court when acquitting someone, to order that no compensation will be sought.

Don’t get me wrong, the present Chief Justice Dr. Twomey has done and continues to do the best she can in regards to the granting of bail from the system she inherited. To that end she has recently said that the judge hearing the remand application will not hear the case proper but this move is frustrated by the requirement that from the outset the whole prosecution docket must be provided to the judge.

Then there is the other issue of those who have been granted bail but still languish in prison because they cannot meet the bail conditions imposed, for example a requirement that the accused pays a cash bail of anything from R50,000 to R150,000 and sureties of an equally large sum makes bail an illusory right. Judges take the position that a person denied bail can appeal against the decision but that continues to be a right that a minority of the Court of Appeal argues is only available to a person who has been convicted, and not for a person who is on remand and not yet convicted and who is as per the Constitution INNOCENT.

All the above said, it’s easy to think that the issue of remand/bail only affects the ‘remandee’ and his family but that is not so. It costs the country R210,000 per year for each person on remand. That is just for those at Montagne Posée and the Bois De Rose Remand Facility and does not include the cost for those held in detention at the police stations. Therefore, the total cost to the country to keep persons who are innocent in custody is R15 million per annum excluding the annual cost for those in police custody. Plus there is the added cost to the social agency of providing for the children and families of those on remand. With all the economic woes of the country can Seychelles afford that kind of money every year to keep and maintain innocent persons in custody?

But even more alarming is the fact that of the 176 inmates on the methadone programme 75% have tested positive for HIV and Hepatitis C from the use of infected syringes. The question is, when those persons are released from custody what happens to the ‘viruses’ in their bodies that they will now take back to their families? In say 10 years’ time, what proportion of the society will be infected?

In conclusion it’s time that we have a Bail Act, it was one of the things the newly Appointed Attorney General said on the steps of State House after his swearing in and probably even special “Bail Courts”. It’s time that the Ministry of Finance appreciates the monumental burden of dispensing justice on the shoulders of the ‘Judiciary’ and provide adequate funding for the recruitment of more judges.

We should strive to make the principle of BAIL NOT JAIL a reality in Seychelles because we cannot afford the several costs (hidden and overt) associated with the continued remand of innocent persons in our prison. What is the benefit to the country?

Please read the above article and join me in advocating that in Seychelles Bail not Jail becomes a reality. Please join me to create a ‘Bail Fund’ to help those who cannot meet the exorbitant cash bail condition for their release from custody.

Alexia G. Amesbury