No one could justify in taking an accused person before a court that exercises the power to remand a person in jail but claims to have no power to consider bail application. In the same vein, no one could justify referring cases of such remanded prisoners to a high court that is in recess up to the month of October.
If it is indeed a truism that justice delayed is justice denied, then such a process must be considered by all standards to be grossly flawed. One could therefore reasonably predict that those who are in custody of the justice system would have to intervene to remedy any miscarriage of justice.
The new dispensation is expected to do nothing less than defend due process and substantive justice. Technical justice if overstretched could lead to impunity being entrenched. Magistrates’ courts for example, must not remand an accused person for more than seven days without court appearance for more than seven days. A rule which should now be enacted to be part of the procedure of any court that has original jurisdiction to try accused persons is yet to be conspicuously applied to the high court.
Hence detention without trial could appear to be legally done by imposing charges, triable only by the high court in order to have a person detained indefinitely before his or her case is heard. Practice must not be allowed to accommodate such detention without trial and the law should be updated to make it unlawful to remand a person for more than seven days without court appearance.
We hope that the right lessons will be drawn from the case of the KM 37 to guide both the security forces and the people.