A Critical Analysis of the Right to Bail in Uganda

TOPIC

REALIZING THE RIGHT TO BAIL IN UGANDA

Kayondo M Silver

Faculty of Law

Uganda Christian University, Mukono

C/o Honors College Department

Introduction;

Bail is  a constitutional right  of an  accused  person where  he /she is “…released from  the  custody  of officers to  the  law on his /her giving of sufficient security for  his /her appearance in court or on accepting certain specified conditions of court”[1]. Well as the accused has the right to apply for bail, it is a judicial act at the discretion of court to grant it. The effect of bail is merely to release the accused from physical custody while he remains under the jurisdiction of the law and is bound to appear at the appointed pale and time to answer the charges against him[2].  .The granting  of  bail  is based upon the  presumption  of  innocence until proven guilty as  provided  for under Article  28 (3)(a)  of  the  constitution of  Uganda  .As justice  Twinomujuni stated; “The  idea is that  a  person presumed  to be innocent and who  is  entitled  to a  speedy  trial should not be kept  behind bars for unnecessary long  before  trial.[3]” I opine that this is conclusively the essence of granting bail.

THE LAWS APPLICABLE

The right to apply for bail is guaranteed under Article 23(6) in respect to the accuseds’ right to freedom of liberty and presumption of innocence. (Article 23) (1) and Article 28 (a) respectively).

Section 75 (1) of the Magistrate Court Act Cap 16 empowers the Magistrates Courts to hear and grant bail applications of cases within its jurisdictions. It also specifies cases that a Magistrates court can not hear as bail applications.[4] One has to apply to the Chief Magistrates and High Court for bail respectively, [5]

However this is in contravation with Art 23 of the constitition. An accused is entitled to apply for bail under all circumstances. What this involves is that one has to remain on remand until their application proceeds to the High court. There is no clear justification as to why one can be tried by a court yet that court can not hear and later on grant the accused bail. The failure for an accused to apply for bail also infriges on the accusseds’ right to a speedy and fair trial. Applying for bail is a tidious process that consumes time. The accussed would therefore spend more time on remand without a speedy process to aply for bail. Refusing to grant bail is one thing but denying an accussed the right to apply for bail is another and direct infrigment and abuse to ones fundamental right to apply for bail.

In Foundation for Human Rights Initiative vs Attorney General[6]  Deputy Chief Justice Kikonyogo while addressing the above matter only stated that “..the accussed’s right to bail is not absolute…” with due respect to the learned Judge, it is not in dispute on this matter, that ones rights are enjoyed in the confines of the law. Yet the law can also infringe on ones rights. The question here is that, if a magistrates’ court can try a case on embezzlement, why can’t the same court hear the accussed’s application for bail and later on grant it? There is no clear justification for such an abuse to the accused’s rights and thus Sect 75 (2) is not good law

Section 14 of the Trial on indictment Act Cap 23 mandates the High Court to release an accused person on bail as it may deem fit. However one can be re-arrested if there is need to increase the amount of bond. Sect 14 (a) and(b) state that the accused is rearrested and committed to prison if he or she fails to execute a new bond for an increased amount. The lacuna in this law is that it does not avail an opportunity to hear from the accused. For a fair hearing to proceed, the accused should have an opportunity to be heard of which the Judge should determine whether to release or remand the accused. If not addressed, the lacuna can be used as an instrument to abuse the accuseds’ freedom.

Notably however, is that although the accused has   a right to apply for bail, he/she has no right to be granted bail. It is a contentions issue as to whether the courts are mandated to grant bail applications. In Uganda (DPP) verses Col. (RTD) Dr. Kiiza Besigye[7],  the court ruled that “under Act 23 (6) (a) , the  accused is entitled to apply for bail. The word “entitled” creates a right to apply for bail and not a right to be granted bail. The word “may” creates a discretion for the court to grant or not grant bail”

The court strongly reiterated its decision in Foundation  for Human  Rights Initiative vs Attorney  General[8] “ the context  of  Art 23  (6)  (a) confers discretion upon  the  court  whether  to grant  bail or not  to grant  bail is  not  automatic”.

In justification of the court’s discretion to grant bail, it was held that the court has to be satisfied that the applicant will appear for trial and would not abscond. Well as courts must respect the accused right to liberty and the presumption of his/her innocence, It is important that the rights are exercised within the confines of the law in that they are not abused.

Litigants and human rights activists have continuously argued that the afore said provisions that create circumstances that deny an accussed bail are an infringement to the accused’s rights and negate the spirit of article 23(6). in Foundation for Human Rights Initiative vs. Attorney General (SUPRA) it is argued that there is no need for one who has not been convicted to create circumstances and conditions in order to release him on bail since he/she is still innocent.

Nevertheless, jurists have firmly stated the law that bail is not automatic. In the Foundation for Human Rights Initiative vs Attorney General deputy chief justice Kikonyogo stated that violation of the accused’s rights does not occur simply because the accused is required to assure court that he will appear to answer the charges all that is required of the court is to impose reasonable conditions, acceptable and demonstrably justifiable in a free and democratic society…” rights, be them fundamental rights or not, must be enjoyed within the confines of law.

  

 It is therefore important to note that where the accused is entitled to the right to bail it is important for him to prove to court that he can be trusted by the court to fulfill its conditions and terms therein.

On the other hand, provisions of acts of parliament inconsistent with the grand norm in regards to granting bail have been nullified.

In Tumushabe versus Attorney General[9] it was strongly stated “ that all other laws on bail in this court that are inconsistent with or which contravene this  Article(23)(6)(a),(b)&(c) are null and void to the extent of inconsistency”

Section 76 of the magistrates court Act [10]and section 16 of the Trial on Indictments Act [11]provide that a magistrate/judge (respectively) grant bail  to an accused who has been or brought forward before trial of an offence punishable by death for a period  exceeding 480 days. These are in contradiction of Article 23(6)(b) that provide that an accused who has been in custody for 60days before trial has a right to be released on bail with such conditions of Court fulfilled. It has since been nullified by the constitutional court[12].Section 25 of the Police Act that empowers police to hold an accused custody for 48 hours was held to be contrary to Act 23(4) of the constitution (ibid)

CONDITIONS FOR BAIL

It is trite law that conditions set by courts in order to grant bail must be fulfilled in order to be granted bail. Even where the court is mandated to grant bail, it still has the discretion to set conditions of bail.

Article 23(6)(b) and 23(6)(c) mandate the High Court to grant bail to an accused who has been in custody for more than 60 or 180 days without trial respectively. In both articles of the constitution, the accused “shall” be released on bail on “reasonable conditions.” It is therefore the responsibility of courts to set terms and conditions that they deem reasonable. What is ‘reasonable’ is not defined but it should be what is affordable and acceptable in a democratic and free state with the rule of law. The question is that if the accused fails to comply with what is deemed reasonable by the court, do they remain on remand even when ‘supposedly’ granted bail? The accused will have to comply with such conditions stated by the court in order to be released on bail.

Most importantly is that while courts consider granting bail, it should nnot set terms  as punishments to the accused. In Uganda v George Nduga[13] the High Court held that imposition of a condition that each accused should pay shillings 2million was failure by the Lower Court to judiciously exercise its discretion. In Charles Onyango Obbo and Andrew Mwenda v Uganda[14] Justice Bossa strongly emphasised that while court should take into account the accused’s ability to pay, while exercising their discretion to grant bail on certain conditions, the court should not impose such tough conditions that bail looks like a punishment to the accused.

Section 77 (2) of the Magisrates Court Act provides that Magistrate Court may consider the following in deciding whether to grant bail.  The nature  of  the   accusation, the  gravity  of the offence  changed and the severity  of  the punishment  which  conviction may entail, the antecedents  of the  applicant,  has a fixed  abode within  the area of  the  Courts jurisdiction and whether  the  applicant  is likely to  interfere with  any of the witnesses for prosecution  or any of  the  evidence   to be tendered in support  of  the  change. It is clear that such restrictions are given to give court guidance and mandate to grant bail to the accused. However it creates a conflict of laws. If one is innocent till proven guilty then why should the accussed prove that he/she needs to be granted bail?

In relation to Sect 77(2) above, under Section 15 (1) of the trial on indictment Act, the accused person has to prove “exceptional circumstances” that exist to justify their release on bail. Such circumstances are  provided for under  section ( 14 )  (3)  of the Trial on Indictments Act cap  23 as grave  illness  , infancy or advanced  age of the accused  , a certificate of no  objection signal by  the  DPP. Courts should use these as mere guidelines in considering whether they they should grant bail or not. If used in their strict sense, the guidelines would limit the discretion of the judge to grant bail. If an average aged person who is well without illness and has no fixed abode in the courts jurisdiction is accussed, he is entitled to apply and later on be granted bail as that person of age and is ill with a fixed abode. The law should thus be applied equally to all people in society.

                                                                                                                                                                                                                                                                               

An appellant has a right to apply for bail pending hearing of his /her appeal . Section  40 (2) of the criminal  procedure code Act  Cap 116  states  that  an  appellant court  has  the  discretion to grant  bail as  it  may  deem  fit pending  the  determination  of his  /her  appeal.

How ever  an appellant  sentenced to death  can not  apply for bail due  the gravity of  the offence and  severity of the  punishment  .(Section  132 (4)  of the Trial on  Indictment Act cap 23).

It is pertinent to note that conditions for bail of an accused  person  on trial may differ from  those of an  appellant . The rationale that an accused is innocent   until proven guilty  does not apply since  the  appellant has been convicted .

In Arvind Patel v  Uganda Supreme Court  Criminal Appeal No. 1 of  2003  , the  supreme  court  gave guidance on considerations of granting bail in an appellant court . These conditions were summarized  in Teddy Sseezi Cheeye v Uganda (Miscellaneous Criminal Appeal  No.37 of 2009 )as ;

       i.        The character of the  applicant 

     ii.        Whether  he /she is  a  first  time  offender  or  not

    iii.        Whether  the offence of which the applicant was convicted involved personal violence

    iv.        The appeal is not frivolous and has a reasonable possibility of success

     v.        The possibility of substantial delay in the determination of the appeal

    vi.        Whether the applicant has complied with built conditions granted before

Lastly courts also have the jurisdiction to arrest the accused despite granting bail. This strengthens its mantle to control the accused on bail. For instance, in case the court deems that the amount of the bail needs to be increased, a re-arrest can be made directing that a new bond for the increased amount be paid.(section 14(2) of the Trial  on Indictment Act Cap 23)

In case of fraud, a mistake, insufficient sure ties or otherwise have been accepted by the court, the High court can also issue a warrant of arrest to re-arrest the accused   released on bail.

All in all, bail is a fundamental right of an accused person which should be exercised judiciously. Conditions set for the granting of bail should indeed be “reasonable” that the applicant is able to meet them thus they are not viewed as punishments as if an accused person is remanded but is subsequently acquitted, he/she may have suffered gross injustice.

Conclusion

The courts in Uganda have firmly developed the right to bail positively to suit the spirit of the constitution. They have recognised that it is a fundamental right that should be granted to an accussed person irrespective of their crime and that it is not a punishment. They have also scrapped out laws that are inconsistent with the constitution in regard to awarding of bail. However they have also failed to balance as to what exactly is a reasonable condition to grant bail.

BIBLIOGRAPHY

BOOKS

Ayume Francis, Criminal Procedure in Uganda

Benjamin Odoki, Guidance to Criminal Procedure in Uganda

Osborn’s concise law Dictionary

STATUTES

The Constitution of Uganda 1995 (Amended)

Magistrates court Act cap 16

Trial on Indictments Act cap 23

The Police Act cap 303

The Uganda Peoples Defence Forces Act

CASES

Arvind Patel v  Uganda Supreme Court  Criminal Appeal No. 1 of  2003

Charles Onyango Obbo and Andrew Mwenda v Uganda HCMA 145/97

Foundation  for Human Rights Initiative Vs   Attorney General Constitutional petition   No.20  of  2006  at  p.g  28

Joseph Tushabe vs Attorney General , Constitutional  Petition N0.6  /2004

Uganda v George Nduga (1978) HCB 221

Teddy Sseezi Cheeye Versus Uganda (Miscellaneous Criminal Appeal  No.37 of 2009

Uganda (DPP) v Col. (RTD) Dr. Kiiza Besigye Constitutional Ref No.20 of 2005

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[1] Osborn’s concise law Dictionary

[2] See Foundation  for Human Rights Initiative Vs   Attorney General Constitutional petition   No.20  of  2006  at  p.g  28

[3] Joseph Tushabe vs Attorney General , Constitutional  Petition N0.6  /2004. 

[4] See Sect 75(2) b-k.

[5] sect 75(3) and (4).)

[6] supra at pg 30

[7] Constitutional Ref No.20 of 2005,

[8] Supra no 2

[9] supra

[10] magistrates court Act cap 16

[11] Trial on Indictments Act cap 23

[12]see Foundation of Human Rights Initiative versus Attorney General

[13] (1978) HCB 221

[14] HCMA 145/97