272 Case Note [2003] J.A.L.
give the Legal Department such extra time in a case where the defendants
were eventually charged with two simple offences.25
A question which presents itself at this stage is this, why was the Court of
Appeal bending over backwards to help the Legal Department? And why is it
that the Court of Appeal showed no concern whatsoever for the liberty of the
applicants who were still in detention, without charge? Why did the court fail
even to mention the liberty of the detainees and the protection of their human
rights as one of the factors to be taken into account in deciding whether or not
to grant bail?
Violation of the applicants' right to the presumption of innocence
The second reason advanced by the Court of Appeal for setting aside the
decision of the magistrate also stems from the shocking fact that at the time of
the hearing, some 24 days after their original arrest and detention, the
applicants had not yet been charged. Some might think that this fact alone
would be a cause for concern to any judge. Yet the judges in the Bamenda
Court of Appeal used the fact that the applicants had not yet been charged as
a reason why bail should not have been granted. Their rather bizarre argu-
ment was that since there had been no charges yet, the magistrate did not
know whether any charge which may subsequently be made would ``be
bailable or not''. Consequently bail should not have been granted just in
case the charge, if any, eventually made turns out to be one where bail was
not available. This is astonishing. What the Court of Appeal was saying is that
because the Legal Department had failed to prefer charges on time, the
magistrate should have presumed (against the detainees) that any charges
preferred will not be bailable and, on this basis, the court should have refused
bail. This reasoning is unattractive and should be rejected, for it punishes the
detainees (with continued detention) for the delay of the Legal Department.
If this view is adopted, it will make it possible for the Legal Department to use
pre-trial detention as punishment simply by delaying the preparation of the
counter-af®davit in a case of this kind. That would be an unsatisfactory
position for the law to be in considering its adverse effects on the liberty of
citizens.
It is interesting to observe that in the af®davit deposed to by the applicants'
counsel it was said that the applicants were arrested ``during a peaceful
march''. The Court of Appeal retorted, shamelessly, that ``if the march was
peaceful why were the applicants now respondents arrested?'' This statement
amounts to a clear breach of the applicants' right to the presumption of
innocence.26 For, it clearly shows that the Court of Appeal had already
made up its mind that, because the applicants had been arrested, they must
have been guilty of some wrongdoing. This presumption of guilt perhaps
explains the appalling decision of the court on the issue of stay of proceedings
discussed above. It may also explain why the Court of Appeal was prepared to
25 Indeed by the time of the hearing of the application for bail, the applicants had already been
detained for more than 10 days, which is the maximum sentence for one of the offences with which
they were subsequently charged (see n. 4 above).
26 For a discussion of the scope of the right to the presumption of innocence under the African
Charter of Human and Peoples' Rights, see, N. Enonchong, [2002] 46 J.A.L., 197, 200±203.