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 misunderstanding of bail as an entitlement rather than an application subject to court discretion has fueled public outrage in controversial cases where high-profile individuals have been denied bail. This misunderstanding is exacerbated by political, media, and civil society discourses, which occasionally present bail denial as a violation of rights. Nonetheless, Ugandan jurisprudence is clear that the constitutional right is to apply for bail, and the granting of bail is conditional. In Malibano Abdu and Another V Uganda,[5]the High Court emphasized that the court must evaluate several factors before granting bail, including the nature of the offence, severity of the punishment, antecedents of the accused, likelihood of absconding, and interests of justice. Thus, this paper aims to dispel the prevailing myth by presenting well-reasoned legal points, supported by statutory provisions and Ugandan case law, demonstrating that while every accused person has a right to apply for bail, there is no absolute right to be granted bail.
The Constitutional Framework Grants a Right to Apply, not to Bail Itself: The Ugandan Constitution, under Article 23(6), unequivocally establishes the right of an accused person to apply for bail. The use of the phrase “may be released on bail” indicates the permissive and not mandatory nature of the court’s power. This provision is a deliberate constitutional safeguard aimed at balancing the rights of the accused with the need for judicial oversight. The term “may” introduces a conditionality that subjects the release to the court’s discretion. Thus, while access to apply is constitutionally guaranteed, release on bail is not.In Uganda (DPP) v Col. (Rtd) Dr. Kizza Besigye Case, the Constitutional Court reiterated that courts must assess whether or not to grant bail based on legal criteria and not public expectation. The judiciary, in this case, emphasized that the constitutional provision does not entitle an accused person to immediate release. Rather, it offers them the opportunity to petition for their temporary liberty, subject to the court’s objective examination. This case remains a critical precedent that frames bail as a judicial, rather than constitutional, entitlement.
Moreover, Article 23(6)(a) -(c) of the Constitution introduces time-bound circumstances under which one may be released on bail, such as failure to be tried within a stipulated period (60 days for non-capital offences, 180 days for capital offences). I will present that this Article has sometimes been interpreted by Courts to mean that the Court has discretion (power) to refuse the grant of bail to a person accused of a criminal offence. Some other courts have, however, argued that this should not be the case and that when the court is considering a bail application, it must keep in mind the fact that the applicant has a Constitutional right to bail. Applying the interpretation of Article 23(6) (a) of the Constitution as amended by the judges in the case of Uganda v Col (Red) Dr. Kiiza Besigye[6], where the accused person has been in custody for 60 days before trial for a non-capital offence here, the court has no discretion in the matter. It has to grant bail upon such terms as the court deems reasonable. Article 23(6) (c) of the Constitution is to the effect that where the accused person is indicted with capital offences trial is by the High Court only. Even here, the Constitution does not mandate automatic release but makes it conditional on the failure of the state to proceed within a reasonable timeframe. This reaffirms that the Constitution safeguards procedural rights rather than granting substantive bail as an entitlement.
Judicial Discretion is Central to the Bail Process: The courts in Uganda exercise discretion in determining whether to grant bail, guided by the facts of the case and the legal framework. This discretion is neither arbitrary nor absolute but is exercised within the confines of established legal principles. Section 14 of the Trial on Indictments Act provides that the High Court may grant bail, again reflecting discretionary automatic authority. The discretionary nature allows the court to examine circumstances such as the risk of absconding, potential interference with witnesses, and the severity of the charges.In Kanyamunyu Mathew v Uganda,[7] the court refused to grant bail because the accused had a history of absconding, indicating that bail decisions are anchored in safeguarding the trial process. The court’s rationale was that release would undermine the administration of justice. Here, the exercise of discretion protected the integrity of the criminal trial by ensuring that the accused would appear for trial.
Judicial discretion also enables the court to assess public interest. The contention was settled by the Constitutional Court in Joseph Tumushabe V Attorney General[8] when it decided that, “The right to apply for bail is a constitutional one vested in everyone, although it does not necessarily follow that one is entitled to bail automatically. The court will then have to judiciously exercise its discretion as to whether to grant the accused bail or not”. The law at the moment, therefore, is such that whereas all accused persons have a constitutional right to apply for bail, it will be at the discretion of the court to grant bail or not. More recent decisions like in Uganda V Hussein Akbar Godi[9] seem to suggest that” The test as to whether to grant bail or not should be whether the accused will turn up for trial or not. The court declined bail, noting that the offence was grave and public confidence in the judiciary could be eroded if such individuals were released before trial. Thus, courts are not rubber stamps for bail applications; they weigh multiple interests before arriving at a decision, confirming that the right is only to apply.
Bail is Conditional and Not a Substitute for Trial: Another key myth to disarm is the notion that bail is a form of exoneration or partial acquittal. Bail is not a declaration of innocence, nor does it amount to freedom from prosecution. It is a temporary release, subject to conditions, pending determination of guilt or innocence. As such, it is conditional and revocable. This legal position is designed to ensure that the accused does not evade justice, interfere with evidence, or re-offend.In Col. (Rtd) Dr. Kizza Besigye v Uganda, the Supreme Court highlighted that bail is a procedural mechanism that serves to balance individual liberty with the interests of justice. The court underscored that bail, once granted, can be revoked if the accused violates the conditions imposed by the court. This conditional nature confirms that bail is a privilege subject to compliance, not an absolute right.
Furthermore, Section 77 of the Magistrates’ Courts Act provides that the powers to grant or refuse bail in a magistrate’s court are discretionary. It states that 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. Therefore, the accused must be informed of their right to apply for bail. A magistrate’s court may at any stage in the proceedings release on bail any person accused of a non-capital offence upon taking from him recognizance consisting of a bond with or without sureties for such amount as is reasonable in the circumstances. If bail is refused by a lower court, a chief magistrate has the power to grant it. Since an accused has the constitutional right to bail as stated in Article 28 of the Constitution, the grant of bail is subject to conditions to be fulfilled by the person applying for bail. This illustrates that bail is granted with expectations of good conduct, and any deviation can lead to immediate re-arrest. Therefore, the right to apply for bail should not be conflated with the entitlement to bail itself.
Courts Consider Public Interest and the Nature of the Offence: In granting or denying bail, Ugandan courts are obligated to consider public interest, especially where the offence alleged is serious or involves violence, corruption, or abuse of public trust. In such instances, courts may deny bail even if all other factors favor release. This is done to preserve public confidence in the administration of justice. In Uganda Vs Wilberforce Nadiope & 5 Ors, bail was refused on the ground that, because of the accused’s prominence and apparent influence in life, there were high chances that he would use his influence to interfere with witnesses. In Ruparelia v Uganda[10]It was held; Before court can grant bail it has to consider whether it is probable that if t accused is released on bail he will appear to stand his trial and in considering the matter the court may have regard to the nature of the offence charged, the nature of the evidence and possible punishment, whether the applicant has a fixed place abode, the antecedents of the applicant and whether he is likely to interfere with witnesses for the prosecution or the evidence.The court’s priority was the broader interest of justice and public order. Such cases demonstrate that the right to apply for bail is not a guarantee of release, especially in high-stakes criminal proceedings.
Similarly, in Hon. Godi H. Akbar Vs Uganda, the state, wishing to defeat the bail application, contended that the applicant would interfere with its undisclosed, allegedly delicate and sensitive witnesses. In rejecting the objection, Justice Zehurikize said that, “It was necessary to tell the Court as to what makes the witnesses so delicate to warrant the need to handle them with diligence and sensitivity. The court cannot act on bold allegations that are devoid of any proof.” It should be noted that Section 75(1) leaves it to the discretion of courts to determine the ability of the accused to pay or the capability of the sureties presented. However, in Chemiswa vs Uganda,[11] the court denied bail on the grounds of public interest, noting that the accused was a serial offender whose release could endanger the community. The court took judicial notice of the community’s security concerns. This affirms that the law mandates courts to protect society while upholding legal rights, and bail may rightly be refused in the public interest.
Comparative and International Standards Reflect the Same Principle: Uganda’s bail framework is consistent with international legal standards. Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR), to which Uganda is a signatory, provides that “it shall not be the general rule that persons awaiting trial shall be detained in custody,” but allows for bail to be denied under certain conditions. This affirms that bail is discretionary globally and not automatic, even under human rights law.In Attorney General v Tumushabe,[12] the court interpreted Article 9 of the ICCPR in line with Uganda’s constitutional provisions and held that although international law encourages non-custodial measures, it recognizes the state’s discretion in ensuring the attendance of accused persons during trial. The right to liberty must therefore be balanced with the right to justice.Additionally, jurisdictions such as Kenya and South Africa have similar provisions. In Kenya, Article 49(1)(h) of the Constitution allows for bail unless there are compelling reasons to deny it. Ugandan courts often reference such comparative jurisprudence to reinforce their discretion. This global consistency further supports the argument that an accused has a right to apply for, but not to be granted, bail.
Conclusion
In light of the foregoing analysis, it is clear that the Ugandan legal framework, as grounded in the 1995 Constitution, statutory provisions, and case law, draws a definitive line between the right to apply for bail and an automatic right to be granted bail. Courts are guided by judicial discretion, legal standards, and the interests of justice when determining whether to admit an accused to bail. This discretion ensures a balanced approach that safeguards both the liberty of the accused and the need to maintain public order, protect witnesses, and uphold the integrity of the judicial process. The cases of Kizza Besigye and others, as cited above, affirm that bail is not a guaranteed outcome but a conditional judicial decision made after thorough evaluation.
Therefore, my position aligns with the prevailing judicial and constitutional interpretation: an accused person has a right to apply for bail, but not a right to bail itself. To argue otherwise would be to misunderstand the purpose of bail and risk undermining the criminal justice system. Courts must continue exercising their discretion judiciously, ensuring that each application is assessed on its merit while maintaining the delicate balance between individual rights and societal interests. Disarming the myth of bail as a right will not only promote legal awareness but also restore public confidence in judicial processes.
[1] (1997)5 KALR 25
[2] Criminal Application No. 83 OF 2016
[3] (1986) HCB 33
[4] Uganda (DPP) v Col. (Rtd) Dr. Kizza Besigye Constitutional Reference No. 20 of 2005
[5] Malibano Abdu and Another V Uganda Criminal Miscellaneous application No. 5 of 2008 (High Court Kampala) unreported.
[6] Const. Ref. No. 20 of 2005
[7] Kanyamunyu Mathew v Uganda (Criminal Miscellaneous Application No. 151 of 2020) [2020] UGHCCRD 144 (9 November 2020).
[8] Constitutional Petition No. 6 of 2004
[9] Miscellaneous Application No. 20 of 2009
[10] [1992-1993] HCB 52
[11] Chemiswa –vs- Uganda 1973 HCB 193.
[12] Attorney General v Tumushabe (Constitutional Petition No. 6 of 2004).
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