We need to shift from a jail culture to a bail culture

We need to shift from a jail culture to a bail culture
We need to shift from a jail culture to a bail culture

Africa-Press – Rwanda. I jokingly tell any friend who’s gotten a high flying job (where they sign cheques) that, “pink does not suit your complexion”. ‘Pink’ being the color of prison garb.

It’s a joke, but a warning as well.

A warning that if they are suspected of doing anything wrong, they’ll be whisked off to jail without much ado. So better double, nay, triple check any document you sign to ensure that Mageragere doesn’t become your new home address.

It is my view that this ‘pink joke’ needs a wider societal examination and I’d like to use this column today to do just that. But before I begin, I want to separate the two phases of jail time; pre-trial detention and post-sentencing imprisonment.

I am not going to use this column to speak about the post-sentencing phase. Rather I want to discuss what happens before the final sentencing and imprisonment.

Over the last few months, there has been a lot of positive talk about reform in the sentencing mechanisms in the judicial sector and that is something I am happy to learn.

Today, the justice ministry is working on actualizing a system where words like ‘plea bargaining’, ‘community service’ and ‘parole’ are part and parcel of our judicial ‘culture’.

I am talking about ‘culture’ because it is my view that the manner in which the law is applied depends on what the culture of the people applying the law looks like.

I’m afraid to say this but it is my view that our culture is a bit too draconian i.e. any semblance of wrongdoing must be punished harshly, quickly and in a manner that ensures that no one even dares repeat the offence. So the question then becomes, is there any room for compassion? And barring compassion, is there room for due process?

Among the first principles that we learn in law school is the presumption of innocence i.e. ‘innocent until proven guilty’. For me, when I think of what innocence means I define it as someone living their life fully on the right side of the law.

That is the natural state of all Rwandan residents and the only person/s who can say that you’ve gone over to the other side is a judge. And that only happens when they make a final ruling. Until that happens, you are legally as innocent as a newborn baby. That is the law. How the presumption of innocence is applied is another case.

I had a recent conversation about the presumption of innocence and how it manifests in bail rulings with a senior lawyer who specializes in criminal law.

According to him, for every ten bail requests that were sought, judges only granted one; a number that I found both shocking and unsurprising at the same time. Shocking because ten percent is such a low statistic but unsurprising because it seems par for the course vis-à-vis our punitive culture.

Overcrowding in our prisons has been an issue for quite a while now. In fact, one of Rwanda’s best known legal innovations, the Gacaca courts, aimed to solve, among other issues, the horrible overcrowding that existed in our prison system as a result of the Genocide against the Tutsi.

As I acknowledged earlier, the justice sector has attempted to find solutions for the issue of overcrowding. My issue is that they are looking at ways to reduce the prison population of those whose cases have been decided on by a judge. Not those whose cases are still before a judge or at the investigative phase.

One of my biggest nightmares is unjustly falling foul of the law. I imagine what the process will do to my young family. I shudder to think how it will affect my reputation as well as my physical and mental wellbeing.

It would be devastating to not only me but the entire network of people that depend on me. It doesn’t matter the duration, whether a day, a week, a month or a year. It would be traumatic.

What makes the nightmare even scarier for me is the knowledge that I’d have only a one in ten chance to be granted bail. Bail that would allow me to continue working to feed my family and stay a useful member of society.

On a positive note though, over the last two weeks, I’ve been pleasantly surprised to see judges grant bail in two notable cases (the IPRC embezzlement case as well as the Rwanda National Olympic and Sports Committee abuse of office trial).

It is my hope that these two rulings are part and parcel of the reforms taking place right now and not just a flash in the pan, judicially speaking. I know we have mechanisms to ensure that defendants stay where they are supposed to (remember the famous Covid watches?). So, I know it’s not an issue of can we grant bail in the majority of cases, but rather a case of do we want to grant bail. It’s my hope that our culture shifts.

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