The
parties are engaged in a protracted trial wherein the accused is facing serious
charges under the Public Order and Security Act [Chapter 11:17]. He is alleged
to have possessed weaponry for insurgency, banditry, sabotage or terrorism, in
contravention of the Public Order and Security Act [Chapter 11:17].
He
is also, in the alternative, facing related charges under the Firearms Act [Chapter
10:09].
His
trial commenced on 9 November 2009. So far, the court has heard from five State
witnesses. When the State was about to call its main witness, one Peter Michael
Hitshman, it was discovered that the witness was not available.
This
prompted counsel for the defence to apply for the relaxation of the stringent
bail conditions arguing that the State was to blame for the delay.
The
State countered that despite the absence of Peter Michael Hitshman, it was
ready to proceed with the trial by calling other witnesses.
I
am persuaded that the mere fact that the State is ready to proceed with the
trial, notwithstanding the absence of its main witness, absolves it from any
blame for the delay.
The
main reason for the delay cannot be laid at anyone's door, as it was occasioned
by the fact that today is the last day of the term. That being the case, these
proceedings will have to be adjourned to next term. No-one is to blame for that
eventuality. On the facts before me, it is my considered opinion that the
accused will have been in the same position whether or not Peter Michael
Hitshman had been called today.
While
the court is alive to the fact that the presumption of innocence still operates
in the accused's favour, there is need to balance the accused's interests
against those of the State, and society at large.
The
court is also mindful of the fact that the current bail conditions were set by
the highest court of the land after careful analysis. For that reason, this
court cannot easily alter the bail conditions without a very strong
justification.
Having
said that, the court is mindful of the fact that the accused has, to date,
faithfully observed all his bail conditions.
The
court also takes note of the publicity the accused has been subjected to,
which, in effect, places him in the public glare, such that he can hardly go
anywhere without being noticed. Chances that he might hide anywhere in this
country, or sneak past our borders without being easily detected, are remote.
There is, however, still a possibility that owing to the gravity of the
offences and the possible penalties, the accused, if allowed to leave the
country, might elect not to return.
I
therefore consider it unsafe to order the release of his passport at this
stage.
I,
however, consider that as the chances of the accused sneaking past our borders,
or going into hiding, are remote, there is some merit in his application for
the relaxation of his reporting conditions.
It is accordingly ordered that the accused's
reporting conditions be and are hereby amended to read once every fortnight.
