By Fredrick Ssemwanga

SOME of the reasons President Yoweri Museveni led the struggle against dictatorship was to re-institute the rule of law, respect for human rights and constitutionalism, which many of us are aware had been totally destroyed, especially during the period between 1971 and 1985.

When someone is arrested by the Police as a suspect, he is normally formally charged and taken to court where he either pleads guilty or innocent to the charge. This leads to further litigation as stipulated under the criminal procedure rules and other laws.

Throughout this process, Government’s powers are completely limited and directed by the Constitution and other line laws and statutes necessary for proper dispensation of criminal justice, including safeguarding the independence of the judiciary.

An independent judiciary is one of the greatest safeguards to the true principles of constitutionalism and leads to meaningful observation of the rule of law. Judicial officers are empowered by law to execute their duties professionally and legally without fear or favour so that actions of the executive, which are inconsistent with the constitution, are avoided.

The right to bail is well stipulated in article 9 (3) of the international covenant on civil and political rights, which provides inter alia that anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officers authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.

It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subjected to guarantees to appear for trial, at any other stage of the judicial proceedings, and should occasion arise for execution of the judgement. This provision of international law provides a very strong safeguard to the right to bail, whereby any variance in relation to the above provision directly contravenes international law on which Uganda is signatory.

In Uganda, bail is a constitutional right provided for under article 23 (6) (a) of the 1995 Constitution. It provides that a person arrested in respect of a criminal offence is entitled to apply to the court to be released on bail and the court may grant the same on such conditions as the court considers reasonable. Therefore, judicial officers always act very much guided and are aware of the above constitutional provision. Where there is need to divert from that position, it must be explained legally without any personal or political influence.

Specifically under Article 23 (6) (b), it is provided that a person shall be released on bail on such conditions as court considers reasonable. It is not, therefore, true that court arbitrarily releases suspects without any consideration. There are a number of legal requirements and conditions which must be fulfilled before one is granted bail.

Bail is, therefore, an agreement between the accused, his sureties or surety, if any, and the court that the accused will attend his trial on a date and place fixed by court. The accused will be liable to pay a certain sum of money fixed by court should he fail to attend the trial as indicated.

The rationale for granting bail is based on the provisions of article 28 (3) (a) of the 1995 Constitution and article 7 (1) (b) of the African Charter on Human and People’s Rights that presume every person accused of a criminal offence is innocent until proved guilty or until he pleads so. Keeping him in custody may amount to one form of punishment or the other without proving his guilt, hence bail allows him to attend his trial while he is at liberty, but not under custody.

Considering the situation in our prisons today which have limited infrastructure, bail may lessen congestion in our prisons. The high level of congestion was witnessed after the September 2009 riots in Kampala, where prisons were filled because many suspects were not immediately granted bail.
According to Section 77 of the Magistrate Courts Act, chapter 16, when application is made before a magistrate court, the court shall have regard to the following in determining whether or not someone should be granted bail:
The nature of the accusation, gravity of the offence and severity of punishment, antecedent of the applicant so far as they are known, whether the applicant has a fixed place of abode in the area of court’s jurisdiction, whether the applicant will interfere with prosecution witnesses or intimidate them, depending on the position of the accused in society. We must, however, note that court is very conscientious on relying on such allegations. Other conditions considered by court include whether or not the accused is of advanced age, sick, the sole breadwinner in the family and social role in the community.

However, in all the above circumstances, it is always the good sense of court to determine the most serious grounds.

We realise, however, that in certain situations, such legal procedures are abused, which has led to public outcry. Such happens because of high levels of ignorance of the law by the biggest section of the Ugandan population. Even when bail is automatic and even after fulfilling the legal requirements, some people find themselves buying their birth right.

There is, therefore, a need for serious re-examination of the judicial system and the general principles necessary for efficient and timely access to and administration of justice in Uganda. In the administration of justice, judicial officers are required to abide by the judicial code of conduct and other professional regulations.

There is also need for the people, lawyers, Police and other stakeholders to work with the judicial officers. It is a general principle that justice delayed is justice denied. This, however, should not lead to the violation of the legal principles entailed in article 28 (3) of the Constitution, which maximally protect the right to a fair hearing. And justice delayed is justice denied does not call for summary trials. This, therefore, presents an inevitable conflict between expedient trials and prolonged detentions.

We must note, however, that if judicial powers are derived from the people, it has been questioned whether mob justice is actual justice. This comes from the fact that considering the rampant ignorance of the law among most Ugandans, many people confess to not being able to access justice through the formal judicial system.

For proper and efficient administration of justice, judicial bottlenecks such as high costs of litigation and access to justice; rampant ignorance of the law; absenteeism of judicial officers from their duty stations; late coming of some judicial officers; backlog cases due limited staff; laziness and inadequate facilitation of the judicial officers, especially at magistrate level; poor record keeping and prolonged adjournments, require immediate solutions if we are to continue claiming that judicial power is derived from the people and administered in the name of the people.

The judicial system needs to be reformed to make it a more efficient and useful tool for the administration of justice, but not to tamper with the right to bail which is a violation of the Constitution and international law.

The writer is a human rights consultant