MWIINE ANDREW KAGGWA, LLB Year 2, Semester 2.
In the administration of criminal justice, the issue of bail is one of the most contentious yet pivotal elements. It intersects with the constitutional rights of the accused, judicial discretion, and public interest in the administration of justice. In Uganda, the right to bail is often misunderstood by the public and even by legal practitioners. Many assume that bail is a guaranteed entitlement upon arrest, yet the legal position dictates otherwise: an accused person has a right to apply for bail, but not a right to be granted bail. This legal nuance, though subtle, holds significant implications for both the rights of the accused and the integrity of the criminal justice system.
Article 28(1) of the 1995 Constitution imposes a duty on the prosecutor and the Magistrate or Judge to try the accused person within a reasonable time or without delay. The Constitution requires the Police to produce a suspect arrested and detained in court within forty-eight (48) hours. Where this is not done, it amounts to unlawful imprisonment, which is a civil wrong for which the victim may sue for damages. Likewise, Article 126(2) (b) of the Constitution provides that “justice shall not be delayed”. This is in line with the Equity maxim, “justice delayed is justice denied.” In essence, a fair trial is conducted without delay and prejudice to the accused person’s other rights. Where the circumstances do not favor a trial within a reasonable time, for example, where the investigation process is too lengthy, the accused person should be released on bail.
Bail is a security, such as cash or a bond, required by a court for the release of a prisoner who must appear in court at a future time. In Charles Onyango Obbo& Andrew Mwenda v Uganda[1], it was defined to mean an agreement between the accused and his sureties with the court that the accused will appear and attend his trial whenever summoned to do so and the surety gives security to the court that the accused will attend his trial on the hearing date. Justice Musalu Musene, in Col (rtd) Dr. Kizza Besigye v Uganda,[2] stated that Bail is granted to an accused person to ensure that he appears for trial without the necessity of his being detained in custody in the meantime. Originally, Bail meant security given to court by another person that the accused will attend his or her trial on a day appointed but lately it includes a recognizance (undertaking) entered into by the accused by him / her conditioning him/her to appear and failure of which may result in the forfeiture of the recognizance.
In the case of Lawrence Luzinda v Uganda[3], the definition of bail was given by Justice Okello, he stated that bail is an agreement between the court, the accused, and sureties, on the other hand, that the accused will attend his or her trial when summoned to do so. This is provided for under the Judicature (Criminal Procedure) (Applications) (Rules). Under Rule 3 of the Judicature (Criminal Procedure) (Applications) (Rules), the bail application may be made orally if the accused person is produced in court, and this applies before a magistrate. In case it is before the High Court or sometimes the Magistrate Court, the application has to be made by way of motion supported by an affidavit. Bail is enjoyed in the light of the presumption of innocence. The power to grant bail also clothes the courts with the capacity to set conditions to ensure that the accused person attends court whenever required.
According to Ayume in his book, Criminal Procedure in Uganda, on page 54, he said that there are two basic principles underlying bail. The first principle is that the accused is innocent until proven guilty or until he pleads guilty, and therefore, it would be unfair in certain circumstances to keep him in prison without trial. This is also enshrined in our Constitution of 1995, Article 28(3) (a), which provides for the right to apply for bail, in light of Article 28(3) (a), which accords the presumption of innocence to a person charged with an offence. The second principle underlying bail is that the only person capable of building up his defence at the trial may be the accused himself. If he is released on bail, it must be on the understanding that he will turn up for his trial. I will present that the Constitution contains provisions on the protection and promotion of fundamental human rights and freedom.
Thus, Article 23(6) of the 1995 Constitution of Uganda forms the bedrock of bail jurisprudence in the country. It provides that a person arrested or detained for a criminal offence is entitled to apply for bail and that the court may grant that bail at its discretion. The language employed—”may be released on bail”—suggests that bail is not automatic. This position was reinforced in Uganda (DPP) v Col. (Rtd) Dr. Kizza Besigye,[4] where the Constitutional Court held that the discretion to grant bail lies solely with the court upon consideration of specific conditions and not as an automatic right of the accused.
Furthermore, the Magistrates Courts Act and the Trial on Indictments Act regulate the bail process, granting judicial officers the discretion to admit accused persons to bail under set conditions. Section 14 of the Trial on Indictments Act specifically provides that the High Court may at any stage of the proceedings grant bail to a person accused of an offence. Similarly, Section 75 of the Magistrates’ Courts Act echoes this provision. The discretionary nature of this provision means that while one may apply, the decision to grant bail remains within the ambit of judicial assessment based on relevant legal considerations.
The prevailing misu