Mutesi Sandra
The legal framework governing bail in Uganda is contained in the Constitution of the Republic of Uganda, 1995, the Trial on Indictments Act, Cap. 25, the Magistrates Courts Act, Cap. 19, the Criminal Procedure Code Act, Cap. 122, the Children Act, Cap. 62, as well as in relevant international instruments.
Notably, there is no single legislative enactment in Uganda that defines the term bail. As P.O. Lumumba rightly observed, laws that do not define specific terms create uncertainties and ambiguities[1]. This leads to interpretations lacking consistent principles or a clear legislative purpose. He recommended that important terms in all legislation should be explicitly defined to provide clarity and ensure that laws effectively address the issues they are intended to cure. Furthermore, the absence of a definition for bail contributes to misunderstandings among prisoners and communities, where the granting of bail is sometimes misconstrued as an acquittal.
Bail has, however, been judicially defined. In Lawrence Luzinda v. Uganda[2], Justice Okello defined bail as: “an agreement between the court, the accused, and the sureties that the accused will attend his trial when summoned to do so.” The same was defined in the case of Aliphusadi Matovu vs. Uganda[3] refers to bail as the release from custody by court of law of an accused person after such an offender has entered into a recognizance consisting of a bond with or without sureties, for a reasonable sum of money to the effect that he or she would appear before court for his trial.
The constitutional right of an accused person to apply for bail flows from the presumption of innocence as provided for in Article 28 (3) (a)[4] which states that “Anaccused person is presumed to be innocent until proved guilty or until that person has accepted guilt”. Here the constitution recognizes the common law presumption as fundament human right. This therefore means that a person should only lose his/ her freedom after he has been convicted. Likewise, Article 23(6) provided that “A person is entitled to apply for bail and court may grant that person bail on such conditions as it considers reasonable”Thus, such a person should not be incarcerated for an unnecessary long period before trail. An accused person is still entitled to his right to personal liberty.
There are three types of bail namely; Cash bail, Non cash bail, and Mandatory bail
Cash bail
This is bail granted with a monetary sum that the accused pays to court and in the event that he does not return to court to face trial, without a justified reason, he forfeits / loses that sum of money to the state and gets arrested again for not honoring the condition / promise he made to court.
Non cash bail
This is bail granted without a monetary sum that is not deposited in court. However, if the accused person does not return to court to face trial without a good return, bail will be cancelled and he is arrested again.
Mandatory bail
This is the one provided for under Article 23 (6) 9b) and (c) which gives the accused person the right to apply to be released on bail and if the person has been on remand for sixty days, that is to say 2 months before trail begins in the Chief Magistrate court and one hundred and eighty days that is 6 months on remand before trial starts in respect of an offence only trail able by the High Court, the accused person will be entitled to be released on mandatory bail also known as court bond or automatic bail.
It is important to note that a judicial officer may refuse to grant bail to an accused person even if he has completed the mandatory days on remand if the accused person is committed or referred to High court for trail, more to that when the judicial officer believes that the release of the accused person is a threat to the public. An applicant of bail has duty to lead evidence as to why they should be release on bail[5]
Parts under bail law that need review and Recommendations.
Section 15 of the Trial on Indictments Act (TIA)[6], provides a narrow scope regarding bail, failing to consider other exceptional circumstances. Such circumstances should include situations like being a primary carer, an expectant or breastfeeding mother, a sole caretaker, or a person with extreme disabilities, among others. Research indicates that children with incarcerated parents often experience a range of psychosocial problems, including fear, separation anxiety, shame, depression, and even post-traumatic stress disorder. Some studies further link parental imprisonment during childhood to an increased risk of antisocial and criminal behavior.
Concerns have also been raised about the inconsistency of bail decisions. Similar offences often result in different outcomes in bail applications. For example, in Matthew Kanyamunyu v. Uganda[7], some co-accused individuals were granted bail while Matthew Kanyamunyu himself was denied. Such inconsistencies have led critics to question whether legal practitioners and judicial officers follow uniform principles or guidelines when considering bail applications. To address this, it is my opinion that a practice directive be issued by the Chief Justice to guide the exercise of court discretion, aiming to establish minimum standards and reduce disparities in bail decisions.
On the use of money as a bail condition, it is crucial that judicial officers consider the financial capacity of the accused. The monetary conditions imposed should not be intended to make bail unattainable but should simply act as a guarantee to secure the accused’s return for trial.
Section 77(2)(4) of the Magistrates Courts Act provides that when an application for bail is made, the court shall have regard to, among other things, whether the accused has a fixed place of abode. The phrase ‘a fixed place of abode’ is not defined by law, as such, it has been interpreted differently by courts. Some judicial officers have preferred this phrase to mean a personal residential home despite the fact that the majority of accused persons do not have personal residential homes; they live in rentals. The problems associated with the lack of definition of the phrase ’a fixed place of abode’ can be cured by providing a definition in the law.” To avoid uncertainty and ambiguity in interpretation, there is need to clearly define the phrase ‘a fixed place of abode’ to mean an address of servicea fixed place of abode should not be limited to the jurisdiction of court but rather any place where the applicant can show and prove he or she resides. It should be given a wider definition should include the place of origin of the accused which may include offices and rented homes.
Denial of bail for certain offences should not become the default position. Instead, stringent conditions should be applied during bail applications for capital offences. These may include:
Seeking the alleged victim’s views, if expressed, on the grant of bail,
Evaluating the likelihood of the prosecution’s case succeeding,
Assessing the strength of the evidence against the accused.
In conclusion, Uganda’s laws on bail exhibit major gaps, uncertainties, inconsistencies, and ambiguities that undermine the protection of the right to personal liberty. To remedy this, the Magistrates Courts Act and the Trial on Indictments Act should be reviewed. Such reform would promote consistency in bail decisions, fill the existing legal gaps, and ensure that citizens fully enjoy the right to personal liberty as guaranteed under the Constitution of the Republic of Uganda.
The writer is a Fourth year student of law at Nkumba University in Entebbe, Uganda.
Reach her at:
Contact: 0765122818
Email: sandramutesi126@gmail.com
[1] P.L.O, Lumumba, Criminal Procedure in Kenya
[2] [1986] HCB 33
[3] Criminal miscellaneous Application No.15 of 2005
[4] 1995 Constitution of the Republic of Uganda as amended
[5] Lamba v R (1958) EA 337
[6] Cap 25
[7] HCT-00-CR-CM-0369-2016
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