Post a comment 
OVERVIEW
A lively and necessary debate has emerged among legal practitioners following the Chief Justice’s Practice Directions (PDs) of 1st December 2025 on drug-related offences. The discussion has centred on the limits of judicial power and the scope of constitutional protections.
The exchanges between Joseph Fitzgerald Kamara Esq. (JFK)—former Special Court Prosecutor, ACC Commissioner, Attorney-General and Minister of Justice, and now 2028 presidential aspirant—and Joel Tejan Deen-Tarawally Esq., a senior ACC prosecutor, have been especially pointed. JFK raised concerns that the PDs undermine the presumption of innocence and create an unlawful presumption against bail. In response, Deen-Tarawally defended the PDs as a procedural clarification rather than a restriction.
While Deen-Tarawally’s rejoinder is articulate and well-intentioned, it overlooks foundational principles of constitutional law, judicial discretion, statutory interpretation, and criminal procedure. This op-ed responds to those omissions—not on personalities, but on the law and first principles.
WHAT PRACTICE DIRECTIONS ARE—AND ARE NOT
The rejoinder correctly notes that Practice Directions are not new. They are widely used across common-law jurisdictions to harmonize procedure and manage cases efficiently. But this is precisely where an important distinction arises.
In essence, PDs are administrative tools. They regulate how courts operate—not what the law is. They cannot: vary constitutional rights; alter statutory presumptions; restrict judicial discretion or create new legal requirements not sanctioned by law or best practice.
This is the core of JFK’s concern. The rejoinder treats PDs as if they can reshape substantive bail law. They cannot.
SECTION 76 CPA 2024: WHAT THE LAW ACTUALLY PROVIDES
The rejoinder relies heavily on Section 76(1) of the Criminal Procedure Act 2024 (CPA), but misapplies it. Section 76(1) establishes three distinct bail regimes:
(a) Murder or treason- Bail may be granted only by a Judge.
(b) Offences punishable by life Imprisonment-Bail is discretionary and granted by a Judge.
(c) All other offences- (omnibus rule) The Court shall grant bail unless the prosecution provides good and sufficient reasons on affidavit.
This reflects long-standing common-law principles: bail is the rule; detention is the exception, and the burden lies on the prosecution
DISSECTING THE PRACTICE DIRECTION
The PD opens with: “No bail shall be granted… save in accordance with Section 76(1)”, CPA 2024.
On its surface, this appears harmless. In reality, it inverts Section 76(1)(c), as the CPA presumes liberty, whereas the PD implies a presumption of detention. These are legally and constitutionally distinct positions. The rejoinder does not confront this contradiction.
MISAPPLICATION OF SECTION 76(1): A DOCTRINAL ERROR
A significant flaw in the rejoinder is the assumption that Section 76(1) governs bail in all courts. It does not. Section 76(1) applies primarily to Magistrates’ Courts, which handle summary matters and committal proceedings. This explains why paragraphs (a) and (b) address offences the Magistrates’ Courts cannot try. The rejoinder erroneously applies Section 76(1) to the High Court, where serious drug cases are heard. This is doctrinally incorrect.
THE HIGH COURT’S INHERENT BAIL JURISDICTION
The High Court’s bail jurisdiction flows from common law, its unlimited original jurisdiction, and Section 135 of the 1991 Constitution.
A Practice Direction cannot restrict this constitutional jurisdiction. Yet the PD instructs High Court judges that they “shall not grant bail except in accordance with Section 76(1).” This improperly imports Magistrates’ Court constraints into High Court proceedings; and that is legally indefensible.
A PROPER READING: DRUG OFFENCES FALL UNDER SECTION 76(1)(c)
Drug offences do not fall under: murder or treason (a), or life-eligible offences (b).
They fall squarely within Section 76(1)(c), which requires courts to grant bail unless the prosecution shows good reason. The statutory default is liberty.
The PD’s opening language—“No bail shall be granted…”—reverses this construction.
The rejoinder does not address this statutory distortion.
CONSTITUTIONAL RIGHTS CANNOT BE RESTRICTED BY ADMINISTRATIVE DIRECTIVES
The rejoinder also avoids engagement with the 1991 Constitution, including: Section 23(1): right to fair hearing (including bail); Section 17: protection of personal liberty AND Section 23(4): presumption of innocence.
Thus. Practice Directions cannot restrict constitutional guarantees, and any measure that shifts the burden toward detention interferes with these protections. This omission is a deep structural flaw.
JUDICIAL DISCRETION MUST REMAIN UNFETTERED
The rejoinder claims the PD simply restates the CPA; it does not. It effectively creates drug offences as a quasi-exceptional class for drug offences; guides judges toward routine remand; and narrows discretion through administrative pressure. Indubitably, a discretion that is directed, constrained, or conditioned by policy is no longer discretion. Such nudging threatens judicial independence.
“NATIONAL INTEREST” IS NOT A LEGAL STANDARD
The rejoinder invokes “the serious national interest in drug abuse cases.” While drug abuse is a legitimate concern, courts do not detain on grounds of national sentiment.
Detention must be based on: flight risk, interference with witnesses, seriousness and strength of evidence and public protection. If “national interest” becomes a determinant for bail, the justice system risks political discretion and arbitrariness.
SEPARATION OF POWERS: THE MISSING DOCTRINE
Under the 1991 Constitution our Parliament makes law; the Judiciary interprets law and no administrative directive can create quasi-legislation. If PDs begin to alter substantive rights or reconfigure bail presumptions, the Judiciary risks crossing constitutional boundaries.
THE CONTRADICTIONS IN THE REJOINDER
The rejoinder contains subtle inconsistencies:
- It admits PDs cannot amend the law—yet defends a PD that alters bail rules.
- It criticizes JFK’s interpretation—yet quotes and relies on the same provision.
- It asserts the PD reflects Section 76(1)—yet Section 76(1) mandates bail, not restricts it.
- It frames the PD as procedural—yet supports it based on policy arguments, not legal authority.
These contradictions weaken its doctrinal foundation.
CONCLUSION: A CALL FOR CONSTITUTIONAL CONFORMITY
The fight against drug abuse is urgent. But urgency cannot justify encroachment on constitutional rights. The PDs warrant rigorous review—not because they target a social problem, but because they risk eroding foundational legal principles: presumption of innocence; right to liberty; judicial discretion; supremacy of Parliament and separation of powers.
JFK’s critique remains firmly grounded in law and constitutional safeguards. The rejoinder reads more as a policy defence than a legal rebuttal. Upholding constitutional rights is not a political choice. It is the first duty of a lawful justice system.
