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GUEST WRITER

THE CONCEPT OF PROCEDURAL DUE PROCESS OF THE LAW

By Bankole Clifford Ekundayo Morgan, Human Rights Advocate

The concept of procedural due process of the law entails certain procedural guarantees to all persons suspected or accused of criminal conduct during investigation and trial. To a greater extent, most of the formal protections of due process are linked to the conduct of a fair hearing.

According to procedural due process of the law, it is a right for an individual and or group of individuals to seek effective redress in the court of justice within a reasonable time. It is also recognized by international law that persons suspected or accused of criminal conduct during investigation and or trial are entitled to certain minimum standards of due process in judicial proceedings.

THE IMPORTANCE OF DUE PROCESS IN THE ADMINISTRATION OF JUSTICE

In the administration of justice due process is very important for the following reasons:

* To ensure integrity in the administration of justice and speedy trial proceedings in court.

* To ensure that the rules of procedure for trial proceedings are upheld and maintained by the Judiciary.

* To make sure that court officials are more careful about what they do in executing their duties.

* To monitor the Judiciary’s commitment to the full compliance of the international, regional and domestic laws.

THE RIGHT TO A SPEEDY TRIAL IN CRIMINAL CASES

Generally, an accused person has a right to a speedy trial in all criminal and civil cases. Human rights tenets prescribed that the right to a fair trial is fundamental to the promotion and protection of human rights, and to the rule of law and to democracy. The right to a fair trial is absolute and cannot be limited. It requires a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The procedural requirements of a fair hearing might differ according to the circumstances of the accused. Many states also have state constitutional provisions or statutes which guarantee a defendant the right to a speedy trial. A defendant may exercise his right to a speedy trial upon arrest, indictment, or other formal accusations through cooperation with the police and court officials. The definition of “speedy” and the benefits of demanding the right to a speedy trial vary from state to state. Procedurally, the right to a fair hearing, which applies to any criminal charge as well as to the determination of civil rights and obligations, contains a number of requirements which among others are catalogued below:

  1. In the administration of justice, there must be effective access to a court, and court proceedings must be consistent.
  2. There must be a hearing before an independent and impartial court or tribunal established by law.
  3. The court hearing must be devoid of intimidation, discrimination and manipulation of justice.
  4. The applicant must have the right to present his or her case or challenge the case against him or her. This will require access to an opponent’s submissions, procedural equality and to evidence relied on by the other party and an oral hearing.
  5. The court must give reasons for its judgment.
  6. There must be equality before the law for parties connected to the matter. For instance, the defence should have the same right to examine witnesses against them as the prosecution has and both parties have the right to legal representation.
  7. An accused person must have the right to effective participation in their criminal trial.
  8. The hearing and judgment must be made public. Hearings can, however, be held in private where the matter is related to juvenile, etc.

HUMAN RIGHTS AND FAIR HEARING WITHIN A REASONABLE TIME

In accordance with human rights procedure, every court sitting must be held within a reasonable time. By international standard, a defendant’s right to a speedy trial will usually be defined by a state statute. The statute will specify the number of days or months the prosecution has to bring the defendant to trial. In Sierra Leone, there is a constitutional provision, for fair hearing within a reasonable time, (Section 23(1)) of the Constitution of Sierra Leone 1991 (Act No. 6 of 1991) guaranteeing every accused person protection of the law in these terms: “Whenever any person is charged with criminal offence he shall unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”.

Going further, Article 10 of the Universal Declaration of Human Rights (UDHR) stipulates that: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.

In addition to that, Article 14 of the International Covenant on Civil and Political Rights (ICCPR) provides that: “All persons are entitled to a fair and public hearing and at trial stage to be informed promptly and in a language in which he/she understands the nature of the charge”.

Article 7(1) of the regional human rights document, African Chapter on Human and Peoples Rights (ACHPR), also recognizes the right to appeal, right to be presumed innocent until proven guilty by a competent court or tribunal, right to defence, including the right to be defended by counsel of the accused person’s choice, right to be tried within a reasonable time by an impartial court or tribunal. In many jurisdictions, the prosecution generally has specified days to bring an imprisoned defendant to trial unless the defendant waives the right to a speedy trial.

WHAT IS NOT INCLUDED IN THE CALCULATION OF SPEEDY TRIAL TIME ARE:

  • Delays caused by motions
  • Adjournments with the consent of the defendant
  • Time when the defendant is unavailable
  • Time when the defendant is without counsel
  • Other exceptional circumstances within procedural due process of the law

HOW A DEFENDANT’S RIGHT TO A SPEEDY TRIAL CAN BEEN VIOLATED?

In determining whether a defendant’s right to a speedy trial has been violated, a balancing of at least four factors is necessary. These are:

  1. The length of the delay
  2. The reason for the delay
  3. The delay has caused hardship to the defendant, and
  4. Whether the defendant has demanded the right to a speedy trial

To win, the defendant must prove that the factors weigh in his favour. The circumstances of each particular case are very important in determining whether the right to a speedy trial has been violated. In accordance with procedural due process of the law, a defendant that has been denied his right to a speedy trial will receive a dismissal of the indictment or a reversal of a conviction followed by a dismissal of the indictment, and if he was detained whilst awaiting trial he must be compensated for unlawfully detained under custody.

ACCESS TO A LAWYER

This is the most challenging issue in the search for justice in our country. In most cases, it is quite difficult for members of the public to meet the demand for legal service. It is evident that an accused person needs an experienced lawyer to make representation on his behalf in both criminal and civil cases. Speedy trial difficulties may posed a huge challenge and frustrate a party to a case.

It is absolutely true that an experienced criminal defence lawyer is essential and highly needed in understanding the court’s procedure. If you have experienced severe delay, you should speak to one immediately to learn more about your rights, your defences and the complicated legal system. The plain truth is that it is very difficult for poor members of the public with genuine court case to meet the demand for legal service in court. In circumstance like this, it is obvious that justice is delayed.