What's the essence of the bail debate?
Jul 28, 2011
THE debate on the issue of bail is raging on. This debate was sparked off by proposals that bail should be scrapped for rioters, demonstrators and economic saboteurs; and for capital offences like treason, defilement, murder and rape— until a suspect has served 180 days on remand.
By Dora Byamukama
THE debate on the issue of bail is raging on. This debate was sparked off by proposals that bail should be scrapped for rioters, demonstrators and economic saboteurs; and for capital offences like treason, defilement, murder and rape— until a suspect has served 180 days on remand.
As eloquently put by the president of the Uganda Law Society, James Sebugenyi, ‘bail’ was defined in Lawrence Luzinda vs. Uganda to mean an agreement between the court, the accused and his or her sureties that the accused will attend his or her trial when summoned to do so. It is a cognizance in form of money or property deposited by the accused with court in order to be released from custody committing not to abscond from his or her trial.
Bail is dealt with under the Constitution of the Republic of Uganda, the Trial on Indictments Act and the Magistrates Courts Act. It is provided for under Article 23 of the Constitution on “Protection of personal liberty†under Chapter Four that provides for “Protection and Promotion of Fundamental and Other Human Rights and Freedomsâ€.
Article 23 (6) states, “Where a
person is arrested in respect of a criminal offence:
a)The person is entitled to apply to court to be released on bail, and the court may grant that person bail on such conditions as the court considers reasonable;
b)In case of an offence which is triable by the High Court as well as a subordinate court, if that person has been remanded in custody in respect of the offence for 60 days before trial, that person shall be released on bail on such conditions as the court considers reasonable;
c)In case of an offence triable only by the High Court, if that person has been remanded in custody for 180 days before the case is committed to the High Court, that person shall be released on bail on such conditions as the court considers reasonable.â€
An analysis of Article 23 of the Constitution reveals the following:
lIt only refers to criminal offences, which offences are dealt with under the Penal Code Act.
A person is ‘entitled’ to apply to court to be released on bail. To ‘entitle’ means to “give a right or legal title toâ€. lUpon a person applying to court to be released on bail, court “may†– which means that the court has the prerogative or discretion not to grant bail or to grant bail on such conditions as it considers reasonable.
Granting bail or not takes into the jurisdiction of the court, which sets different time-frames for specific offences.
Further still, this legal principle connotes that a defendant has an absolute right to bail if the custody time limits have expired. Legal basis for bail is also hinged on Article 28 under the Right to a fair hearing. Article 28(3) (a) provides that “Every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty or until that person has pleaded guilty.â€
In line with this principle, a person charged with a crime should not be denied freedom unless there is a good reason. The Magistrates’ Courts Act and Trial on Indictments Act provide that
Magistrates Courts and the High Court may release a person on bail at any stage in the proceedings.
Offences excluded from grant of bail by Magistrates Courts but which can be granted bail by the
High Court include: acts of terrorism and cattle rustling; offences under the Firearms Act punishable by a sentence of imprisonment of not less than 10 years; Abuse of office; rape, defilement contrary Corruption, and bribery of a member of a public body contrary to the Prevention of Corruption Act;
Courts may refuse to grant bail to a person, if he or she does not prove to the satisfaction of the court that exceptional circumstances exist justifying his or her release on bail; and that he or she will not abscond when released on bail.
Exceptional circumstances are defined to mean any of the following: Grave illness certified by a medical officer of the prison or other institution or place where the accused is detained as being incapable of adequate medical treatment while the accused is in custody;
A certificate of no objection signed by the Director of Public Prosecutions; or The infancy or advanced age of the accused.
In considering whether a person is likely to abscond, court takes into account the following factors:
Whether the accused has a permanent residence within the jurisdiction of court or is ordinarily resident outside Uganda; Whether the accused has sound sureties within the jurisdiction to undertake that he or she will comply with conditions of bail; Whether the accused has on previous occasion when released on bail failed to comply with conditions of his or her bail; and Whether there are other charges pending against the accused.
It is against this background that certain issues need to be addressed when debating whether bail should be scrapped for certain offenders who include rioters, demonstrators, economic saboteurs; capital offences like treason, defilement, murder and rape until they have served 180 days on remand.
In order to squarely address this debate, several questions come to mindlIf the law already provides that one is entitled to bail - in the case of an offence triable by the High Court as well as by a subordinate court – if that person has been remanded for 60 days and for 180 days for offences only triable by the High Court —which include treason, defilement, murder and rape—why are some offenders granted bail before these days have expired?
Why are we increasingly witnessing ‘mob justice’ where some suspects are granted bail and yet for example in the case of habitual offenders— the community feels that they should still be on remand?
Why are suspects granted bail even after they have repeatedly committed the same offences?
As the debate rages on, what is obvious is that riots promote a negative image of our country; drive away tourists and investors and thus cause economic sabotage, which factors contribute to under development and scarcity of resources and thus riots.
Enactment and amendment of laws may partly address challenges of balancing human rights and state duties to maintain law and order—conducive for development.
THE debate on the issue of bail is raging on. This debate was sparked off by proposals that bail should be scrapped for rioters, demonstrators and economic saboteurs; and for capital offences like treason, defilement, murder and rape— until a suspect has served 180 days on remand.
As eloquently put by the president of the Uganda Law Society, James Sebugenyi, ‘bail’ was defined in Lawrence Luzinda vs. Uganda to mean an agreement between the court, the accused and his or her sureties that the accused will attend his or her trial when summoned to do so. It is a cognizance in form of money or property deposited by the accused with court in order to be released from custody committing not to abscond from his or her trial.
Bail is dealt with under the Constitution of the Republic of Uganda, the Trial on Indictments Act and the Magistrates Courts Act. It is provided for under Article 23 of the Constitution on “Protection of personal liberty†under Chapter Four that provides for “Protection and Promotion of Fundamental and Other Human Rights and Freedomsâ€.
Article 23 (6) states, “Where a
person is arrested in respect of a criminal offence:
a)The person is entitled to apply to court to be released on bail, and the court may grant that person bail on such conditions as the court considers reasonable;
b)In case of an offence which is triable by the High Court as well as a subordinate court, if that person has been remanded in custody in respect of the offence for 60 days before trial, that person shall be released on bail on such conditions as the court considers reasonable;
c)In case of an offence triable only by the High Court, if that person has been remanded in custody for 180 days before the case is committed to the High Court, that person shall be released on bail on such conditions as the court considers reasonable.â€
An analysis of Article 23 of the Constitution reveals the following:
lIt only refers to criminal offences, which offences are dealt with under the Penal Code Act.
A person is ‘entitled’ to apply to court to be released on bail. To ‘entitle’ means to “give a right or legal title toâ€. lUpon a person applying to court to be released on bail, court “may†– which means that the court has the prerogative or discretion not to grant bail or to grant bail on such conditions as it considers reasonable.
Granting bail or not takes into the jurisdiction of the court, which sets different time-frames for specific offences.
Further still, this legal principle connotes that a defendant has an absolute right to bail if the custody time limits have expired. Legal basis for bail is also hinged on Article 28 under the Right to a fair hearing. Article 28(3) (a) provides that “Every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty or until that person has pleaded guilty.â€
In line with this principle, a person charged with a crime should not be denied freedom unless there is a good reason. The Magistrates’ Courts Act and Trial on Indictments Act provide that
Magistrates Courts and the High Court may release a person on bail at any stage in the proceedings.
Offences excluded from grant of bail by Magistrates Courts but which can be granted bail by the
High Court include: acts of terrorism and cattle rustling; offences under the Firearms Act punishable by a sentence of imprisonment of not less than 10 years; Abuse of office; rape, defilement contrary Corruption, and bribery of a member of a public body contrary to the Prevention of Corruption Act;
Courts may refuse to grant bail to a person, if he or she does not prove to the satisfaction of the court that exceptional circumstances exist justifying his or her release on bail; and that he or she will not abscond when released on bail.
Exceptional circumstances are defined to mean any of the following: Grave illness certified by a medical officer of the prison or other institution or place where the accused is detained as being incapable of adequate medical treatment while the accused is in custody;
A certificate of no objection signed by the Director of Public Prosecutions; or The infancy or advanced age of the accused.
In considering whether a person is likely to abscond, court takes into account the following factors:
Whether the accused has a permanent residence within the jurisdiction of court or is ordinarily resident outside Uganda; Whether the accused has sound sureties within the jurisdiction to undertake that he or she will comply with conditions of bail; Whether the accused has on previous occasion when released on bail failed to comply with conditions of his or her bail; and Whether there are other charges pending against the accused.
It is against this background that certain issues need to be addressed when debating whether bail should be scrapped for certain offenders who include rioters, demonstrators, economic saboteurs; capital offences like treason, defilement, murder and rape until they have served 180 days on remand.
In order to squarely address this debate, several questions come to mindlIf the law already provides that one is entitled to bail - in the case of an offence triable by the High Court as well as by a subordinate court – if that person has been remanded for 60 days and for 180 days for offences only triable by the High Court —which include treason, defilement, murder and rape—why are some offenders granted bail before these days have expired?
Why are we increasingly witnessing ‘mob justice’ where some suspects are granted bail and yet for example in the case of habitual offenders— the community feels that they should still be on remand?
Why are suspects granted bail even after they have repeatedly committed the same offences?
As the debate rages on, what is obvious is that riots promote a negative image of our country; drive away tourists and investors and thus cause economic sabotage, which factors contribute to under development and scarcity of resources and thus riots.
Enactment and amendment of laws may partly address challenges of balancing human rights and state duties to maintain law and order—conducive for development.