By Mukoda Sarah
The right to personal liberty is one of the most cherished constitutional guarantees in any democratic society. In Uganda, the concept of bail was constitutionally entrenched as a mechanism to balance the State’s interest in prosecuting offenders against the individual’s right to liberty and the presumption of innocence. Bail was never intended to be a reward for innocence nor a punishment for guilt. Rather, it serves as a procedural safeguard ensuring that an accused person attends trial while enjoying liberty pending the determination of criminal charges.
Yet, despite the constitutional recognition of bail, its practical implementation has generated significant controversy. The issuance of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 sought to streamline bail decision-making, promote consistency, and reduce disparities in judicial approaches. The Guidelines were introduced against a backdrop of growing public concern over prolonged pre-trial detention, inconsistent bail decisions, and the politicization of criminal justice.
However, four years after their promulgation, fundamental questions remain. Have the Bail Guidelines enhanced access to bail or restricted it? Do they align with the constitutional architecture of liberty under Article 23? Has judicial practice transformed bail from a constitutional safeguard into a discretionary privilege? Most importantly, can bail still be considered a constitutional guarantee in Uganda today?
This article critically examines these questions.
Article 23 of the Constitution of the Republic of Uganda guarantees the right to personal liberty. Specifically, Article 23(6)(a) provides that a person arrested in respect of a criminal offence is entitled to apply to court for bail, and the court may grant bail on such conditions as it considers reasonable.
The Constitution further establishes the doctrine of mandatory bail under Article 23(6)(b) and (c), requiring release where an accused person has been on remand beyond constitutionally prescribed periods.
The framers of the Constitution intended bail to operate as a shield against arbitrary detention and abuse of prosecutorial power. The inclusion of mandatory bail was a deliberate response to Uganda’s history of prolonged detention without trial during earlier political regimes. Scholarly analysis of the drafting history demonstrates that mandatory bail was designed as a constitutional remedy against excessive pre-trial incarceration.
Yet, a recurring jurisprudential debate has persisted. Does Article 23 create a right to be released on bail or merely a right to apply for bail?
Ugandan courts have at various times adopted conflicting positions on this issue. Some decisions have emphasized that the Constitution guarantees only an opportunity to apply, while others have interpreted the provision as embodying a substantive liberty interest deserving protection.
This ambiguity forms the heart of Uganda’s contemporary bail conundrum.
The Judiciary introduced the Bail Guidelines in 2022 with several objectives, including promoting uniformity in bail decisions, reducing pre-trial detention, balancing individual rights with public interests, and enhancing transparency in bail administration.
The Guidelines rest upon five fundamental principles, 1) Presumption of innocence, 2) Right to liberty, 3) Obligation of attendance at trial, 4) Judicial discretion and 5) Interests of justice.
At face value, these principles appear constitutionally sound. However, the practical difficulty lies in how courts have interpreted and applied them.
The Guidelines introduced extensive considerations for granting bail, including, 1) Nature and gravity of the offence, 2) Character of the applicant, 3) Possibility of interference with investigations, 4) Likelihood of absconding, 5) Protection of victims and witnesses and 6) Public interest considerations.
While these factors are not inherently objectionable, they significantly expanded the grounds upon which courts could deny bail. Consequently, what was constitutionally conceived as an exception to detention increasingly became an exception to liberty.
No discussion of bail in Uganda can be complete without examining the numerous prosecutions involving Kizza Besigye.
In Uganda v. Kiiza Besigye (Constitutional Reference No. 20 of 2005), the High Court reaffirmed that bail exists to preserve liberty pending trial and that pre-trial detention should not become punishment before conviction. The court rejected attempts to use the seriousness of charges alone as a basis for denying liberty.
However, subsequent events have demonstrated a departure from this philosophy.
In 2025, Dr. Besigye’s application for release after lengthy detention generated national debate. Despite arguments that constitutional timelines for mandatory bail had been reached, the court adopted a restrictive interpretation of the commencement date for calculating remand periods and denied release.
The controversy highlighted an emerging judicial trend, constitutional safeguards are increasingly interpreted narrowly where politically sensitive prosecutions are concerned. This development undermines public confidence in the neutrality of bail adjudication.
Perhaps the most important constitutional authority remains Foundation for Human Rights Initiatives