An Evaluation of the Rules Governing Discretionary and Mandatory Bail in Uganda

UGANDA CHRISTIAN UNIVERSITY, MUKONO
SCHOOL OF LAW

A PAPER PRESENTED AS WRITTEN COURSE WORK IN COMPLIANCE WITH THE RULES AND REGULATIONS GOVERNING THE CRITERIA FOR ASSESSMENT LEADING TO THE AWARD OF A BACHELOR OF LAWS (LLB) DEGREE OF UGANDA CHRISTIAN UNIVERSITY, MUKONO.


BY SILVER M KAYONDO
SO9B11/316

LECTURER: ANNETTE KARUNGI MUTABINGWA (MRS)

TUTOR: HIS WORSHIP SAMUEL MUNOBE

COURSE UNIT: CRIMINAL PROCEDURE

Question: “An accused person is presumed innocent until he/she pleads guilty or he/she has been proved guilty. As such, an accused right has an automatic right to bail under article 23(6) of the 1995 Constitution.” Per LLB student. Discuss the truth or otherwise of the above statement citing the relevant provisions and decided cases.






Introduction:
This paper seeks to discuss the Law relating to discretionary and mandatory bail as provided for under article 23(6) of the Constitution of the Republic of Uganda, 1995 (as amended) and other relevant statutes. Relevant case law as obtained from our jurisdiction will also be cited to support the arguments raised during the discussion.
Bail is an agreement or recognizance between the accused (and his/her sureties, if any) and the court that the accused will pay a certain sum of money fixed by the court should he fail to appear to attend his trial on a certain date. In Uganda vs. Lawrence Luzinda , Okello J (as he was then) had this to say;
“Bail is an agreement between the court and an applicant consisting of a bond with or without a surety for a reasonable amount as the circumstances of the case permit conditioned upon the applicant appearing before such a court on a date and time as named in the bond to start his trial.”
Originally, bail meant security given to court by another person that the accused will attend his/her trial on the day appointed. But now, it includes recognizance entered into by the accused himself conditioning him/her to appear, and failure of which may result in the forfeiture of the recognizance.
Bail represents a compromise between conflicting interests. The accused is given his/her freedom on conditions designed to ensure his attendance at court when required. Object of bail is to ensure that an accused person appears to stand trial without the necessity of him/her being detained in custody in the meantime. Therefore, the effect of bail is not to set the accused free but to release him from custody.
In Uganda today, Bail is created and governed by statute. I will hereunder reproduce the relevant article of the Constitution in ex tenso.
Article 23 (6) Provides that where a person is arrested in respect of a criminal offence—
(a) The person is entitled to apply to the court to be released on bail, and the court may grant that person bail on such conditions as the court considers reasonable;
(b) in the case of an offence which is triable by the High Court as well as by a subordinate court, the person shall be released on bail on such conditions as the court considers reasonable, if that person has been remanded in custody in respect of the offence for sixty days before trial, that person shall be released on bail on such conditions as the court considers reasonable.
(c) In the case of an offence triable only by the High Court, if that person has been in custody for one hundred and eighty days before the case is committed to the High Court, that person shall be released on bail on such conditions as the court considers reasonable.
Bail in the High Court is governed by the Trial on Indictment Act which spells out the following provisions;
The High Court may at any stage in the proceedings release the accused person on bail, that is to say, on taking from him or her a recognisance consisting of a bond, with or without sureties, for such an amount as is reasonable in the circumstances of the case, to appear before the court on such a date and at such a time as is named in the bond.
Notwithstanding subsection (1), in any case where a person has been released on bail, the court may, if it is of the opinion that for any reason the amount of the bail should be increased—
Issue a warrant for the arrest of the person released on bail directing that he or she should be brought before it to execute a new bond for an increased amount; and commit the person to prison if he or she fails to execute a new bond for an increased amount.
The Magistrates Courts Act provides for bail in the Magistrates Courts. It states;
A magistrate’s court before which a person appears or is brought charged with any offence other than the offences specified in subsection (2) may, at any stage in the proceedings, release the person on bail, on taking from him or her a recognisance consisting of a bond with or without sureties, for such an amount as is reasonable in the circumstances of the case to appear before the court, on such a date and at such a time as is named in the bond.
However, the Magistrates courts don’t have jurisdiction to grant bail for interalia, offences triable only by the High Court, offences under the Penal Code Act relating to acts of terrorism, offences under the Penal Code Act relating to cattle rustling, offences under the Firearms Act punishable by a sentence of imprisonment of not less than ten years, abuse of office contrary to section 87 of the Penal Code Act, rape, contrary to section 123 of the Penal Code Act and defilement contrary to sections 129 and 130 of the Penal Code Act.
Furthermore, the Magistrates Courts outlines the conditions to take into consideration before the relevant court can grant or refuse to grant bail. It provides;
Where any person appears before a magistrate’s court charged with an offence for which bail may be granted, the court shall inform the person of his or her right to apply for bail.
When an application for bail is made, the court shall have regard to the following matters in deciding whether bail should be granted or refused—
the nature of the accusation;
the gravity of the offence charged and the severity of the punishment which conviction might entail;
the antecedents of the applicant so far as they are known;
whether the applicant has a fixed abode within the area of the court’s jurisdiction; and
whether the applicant is likely to interfere with any of the witnesses for the prosecution or any of the evidence to be tendered in support of the charge.
(3) Where bail is not granted under section 75 [of the MCA], the court shall—
record the reasons why bail was not granted; and
inform the applicant of his or her right to apply for bail to the High Court or to a chief magistrate, as the circumstances may require.
The issue of bail has been discussed in Uganda in a number of decisions. For instance, in Uganda (DPP) vs. Rtd. Col Dr. Kizza Besigye . The respondent and 22 others who had been arrested and jointly charged with treason contrary to section 23 (1) (c) of the Penal Code Act . The respondent was also charged with rape contrary to section 123 of the same statute. He applied for bail to the High Court under article 23 (6) (a) of the Constitution. The DPP opposed the bail application on grounds that;
1) The court had discretion to grant or not grant the bail application pointing out that there were no exceptional circumstances in the applicant’s case as pointed out in section 15 TIA which would warrant the exercise of the court’s discretion in the appellants favour. Such exceptional circumstances include grave illness certified by a medical officer of the prison or other institution or place where the accused is detained as being incapable of adequate medical treatment while the accused is in custody, a certificate of no objection signed by the Director of Public Prosecution or the infancy or advanced age of the accused.
2) The High Court had given conflicting interpretation of article 23 (6) (a) thus leading to confusion in the lower courts which are bound by the High Court decisions. Counsel cited Layan Yahaya vs. Uganda where Justice Lugayizi held that;
“… In other words, since under article 28 (3) (a), a suspect is presumed innocent until he/she is proved guilty or until he/she pleads guilty, it makes sense to say that when such a suspect applies for bail, a court of law would act unconstitutionally if it refused to grant him/her bail. A refusal to grant bail would contradict the suspect’s inherent right innocence and directly suggest that the law presumes the suspect guilty of the offence he/she is charged with unless he/she proves otherwise. All in all, this court remains of the settled view that bail is a constitutional right that flows from the presumption of innocence…’’
Whereas it is trite that bail flows from presumption of innocence, it is not an automatic right. In Besigye’s application , the Constitutional Court of Uganda applied the literal rule interpretation to the context of article 23(6)(a) and expressed an opinion that the said provision confers discretion upon the court whether to grant bail or not. The use of the word “may” is stated to imply permissive, optional or discretional and not mandatory. It is the opposite of “shall” which is generally imperative or mandatory. The accused is entitled to apply for bail. The word “entitled” creates a right to apply for bail and not to be granted bail. However, under article 23(6)(b) and (c), the court has no discretion to grant or not to grant bail after the accused has shown that he/she has been on remand in custody for sixty or one hundred and eighty days respectively.
Indeed, courts in Uganda have excericsed this discretion pertaining to bail. For instance, in Dr. Aggrey Kiyingi vs. Uganda , the applicant was denied bail because court was of the opinion that he might flee the country if released. Justice Caroline Akello rejected the application because the applicant did not disclose that he held a Ugandan passport when he surrendered the Australian one on his arrest. In her ruling, this was intended to mislead court and it suggested that if granted bail, he may abscond. She also ruled that Dr. Kiyingi could deal with diabetes in prison and the learned judge did not consider the ground of hypertension raised by the accused because there was no evidence that he suffered from the same. However, in a fresh application, Justice Kibuuka Musoke granted him bail on condition that he deposited his passport with the Criminal Investigation Department. He also restricted him from moving beyond Kampala and Wakiso districts.
In Charles Onyango Obbo and Andrew Mwenda vs. Uganda , Justice Bossa said that in exercising its discretion, the court should not impose such tough conditions that bail looks like a punishment to the accused. The case of Sudhir Ruparelia vs. Uganda listed some of the conditions to consider before granting bail. Court has to consider whether it is probable that if the accused is released on bail, he will appear to stand trial, the nature of the offense charged, the nature of the evidence adduced and possible punishment, whether the accused has a fixed place of abode, the antecedents of the applicant and whether he/she is likely to interfere with the evidence or witnesses of the prosecution. All these were taken into account by Justice Zehurikize in Hon Godi H Akbar vs. Uganda . He granted bail to the applicant on grounds set out in the notice of motion and expounded on in the supporting affidavit. The accused had been in custody, but had not been committed for trial in the High Court, It was not known when the trial would commence, He was a member of Parliament for Arua Municipality and his constituents had continuously missed representation, he couldn’t interfere with investigations which had been completed, and he could not interfere with witnesses because he did not even know the witnesses the State intended to line up to testify against him. He also had a fixed place of abode in Kampala and Arua on top of producing four substantial sureties. Bail can also be refused where the evidence is to a greater extent pointing to the proof of guilt of the accused, however presumption of innocence must be observed. In exercising the discretion to grant or refuse to grant bail, the courts should act judiciously. There should be a balance as to the constitutional rights of the applicant, the needs of society to be protected from lawlessness and the considerations which flow from people being remanded in prison custody which adversely affects their welfare, that of their families and not least, the effect on prison remand conditions when large numbers of unconvicted people are kept in custody. It is also not a general rule that persons awaiting trial shall be detained in custody, but release may be subjected to guarantees to appear for trial, at any other stage of the judicial proceedings, and should occasion arise for execution of the judgement.
By and large, the above discussion tackles some of the intricacies of mandatory and discretionary bail in Uganda. It is the province of the judicial officer to set what he or she may deem as “reasonable conditions.” What amounts to “reasonable conditions” depends on the circumstances of each application or case. For instance, in Gilbert Baalibaseka Bukenya vs. Uganda, the anti-corruption court judge, Justice Mugamba deemed a recognizance of 50 million shillings as reasonable due to the gravity of the corruption offences (which led to loss of billions of public funds) that had been preferred against the accused and yet 2 million was unreasonable in the Andrew Mwenda case (supra) because the now outlawed offence of publication of false news that the applicant journalists had been charged with was just a misdemenour. However, it should be noted that the presumption of innocence is not observed for applications of bail pending appeal because a conviction has already been pronounced and the accused’s guilt has been established beyond reasonable doubt in the trial proceedings.










BIBLIOGRAPHY
Textbooks
B.J. Odoki; A Guide to Criminal Procedure in Uganda, LDC Publishers, 2nd Ed (1997)
Francis Ayume; Criminal Procedure and Law in Uganda, Longman (1986)
Ssekaana Musa; Criminal Procedure and Practice in Uganda, Law Africa, 2010

Statutes
Constitution of The Republic of Uganda, 1995 (as amended)
The Magistrates Courts Act (Chapter 16 Laws of Uganda)
The Trial on Indictment Act (Chapter 23 Laws of Uganda)
The Penal Code Act (Chapter 120 Laws of Uganda)