Bail is a constitutional right
Jun 05, 2011
SOME of the reasons why President Museveni led the struggle against dictatorial regimes 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 1971 to 1985.
By Fredrick Ssemwanga
SOME of the reasons why President Museveni led the struggle against dictatorial regimes 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 1971 to 1985.
Rule of law and respect for human rights are clearly reflected in the NRM 10 point programme.
When someone is arrested by the Police as a suspect, he is normally formally charged. He or she is later taken to court where he or she either pleads guilty or innocent to the charge. Throughout this process, the Government 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.
Proposing to amend the Constitution in the interest of counteracting demonstrations even when they appear to be lawful will be counter productive not only to our long struggle to promote the rule of law and constitutionalism, but it also betrays our commitment to international human rights standards and principles.
The right to bail is well stipulated under Article 9 (3) of the international covenant on civil and political Rights which provides inter alia that any one 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 or release within a reasonable time.
This provision of international law provides a very strong safeguard to the right to bail not only as provided by the 1995 Constitution of Uganda, but also by international human rights norms some or which Uganda has ratified. Any variance in relation to the above provision directly contravenes international law.
In Uganda bail is a constitutional right provided for under Article 23 (6) (a) of the Constitution which 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 aware of the above constitutional provision; where they there 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. This position continues to reassert judicial independence. It’s 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 and will be liable to pay certain sum of money fixed by court should he or she fail to attend the trial as indicated.
The rationale for granting bail is based on the provisions of Article 28 (3) (a) of the 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 innocent until proved guilty or until he or she pleads so and keeping him in custody may amount to one form of punishment or the other without proving his guilt hence bail allows him /her to attend his trial while he is at liberty, but not under custody. Out right denial of bail without any legal justification is in conflict with Article 28(3) (a) which may also need to be amended to meet the desired conditions.
Further, considering the situation in our prisons today with limited infrastructure, bail has lessened congestion in our prisons. Such a scenario of high level of congestion was witnessed after the September 2009 riots in Kampala where prisons were filled because many were not granted bail immediately and some are still languishing in prisons.
Some of the conditions considered by court to give bail include whether or not the accused is of advanced age, sick health, the sole bread winner in the family and social role in community is also taken into account. However, in all the above circumstances it is always in 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 out cry. Such happens because of high levels of ignorance of the law by the biggest section of the Ugandans where even when bail is automatic and even after fulfilling the legal requirements, people find themselves buying their birth right.
This requires serious re-examination of the judicial system and the general principles necessary for efficient and timely access to and administration of justice in Uganda.
For effective administration of justice, there is need for the people, lawyers, the Police and other stakeholders to work together with the judicial officers.
We must note, however, that if judicial powers are derived from the people and administered in the name of the people, then bail conditions, as they are currently provided by the Constitution, should be maintained.
For proper and efficient administration of justice in Uganda, judicial bottlenecks such as high costs of litigation, a lack of access to justice and rampant ignorance of the law should be dealt with. Also absenteeism of judicial officers, late coming of judicial officers, backlog cases due to limited staff, laziness of the judicial officers and inadequate facilitation of judicial officers has to be tackled.
Other challenges like poor record keeping and prolonged adjournments, among others, require immediate and workable solutions if we are to administer on behalf of the people. The above challenges need to be addressed first before amending the Constitution to alter the current bail conditions.
What we need, therefore, is a reform of the judicial system to make it more efficient and a useful tool for the administration of justice, but not to tamper with the right to bail.
Consultant in human rights law and access to justice
SOME of the reasons why President Museveni led the struggle against dictatorial regimes 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 1971 to 1985.
Rule of law and respect for human rights are clearly reflected in the NRM 10 point programme.
When someone is arrested by the Police as a suspect, he is normally formally charged. He or she is later taken to court where he or she either pleads guilty or innocent to the charge. Throughout this process, the Government 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.
Proposing to amend the Constitution in the interest of counteracting demonstrations even when they appear to be lawful will be counter productive not only to our long struggle to promote the rule of law and constitutionalism, but it also betrays our commitment to international human rights standards and principles.
The right to bail is well stipulated under Article 9 (3) of the international covenant on civil and political Rights which provides inter alia that any one 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 or release within a reasonable time.
This provision of international law provides a very strong safeguard to the right to bail not only as provided by the 1995 Constitution of Uganda, but also by international human rights norms some or which Uganda has ratified. Any variance in relation to the above provision directly contravenes international law.
In Uganda bail is a constitutional right provided for under Article 23 (6) (a) of the Constitution which 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 aware of the above constitutional provision; where they there 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. This position continues to reassert judicial independence. It’s 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 and will be liable to pay certain sum of money fixed by court should he or she fail to attend the trial as indicated.
The rationale for granting bail is based on the provisions of Article 28 (3) (a) of the 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 innocent until proved guilty or until he or she pleads so and keeping him in custody may amount to one form of punishment or the other without proving his guilt hence bail allows him /her to attend his trial while he is at liberty, but not under custody. Out right denial of bail without any legal justification is in conflict with Article 28(3) (a) which may also need to be amended to meet the desired conditions.
Further, considering the situation in our prisons today with limited infrastructure, bail has lessened congestion in our prisons. Such a scenario of high level of congestion was witnessed after the September 2009 riots in Kampala where prisons were filled because many were not granted bail immediately and some are still languishing in prisons.
Some of the conditions considered by court to give bail include whether or not the accused is of advanced age, sick health, the sole bread winner in the family and social role in community is also taken into account. However, in all the above circumstances it is always in 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 out cry. Such happens because of high levels of ignorance of the law by the biggest section of the Ugandans where even when bail is automatic and even after fulfilling the legal requirements, people find themselves buying their birth right.
This requires serious re-examination of the judicial system and the general principles necessary for efficient and timely access to and administration of justice in Uganda.
For effective administration of justice, there is need for the people, lawyers, the Police and other stakeholders to work together with the judicial officers.
We must note, however, that if judicial powers are derived from the people and administered in the name of the people, then bail conditions, as they are currently provided by the Constitution, should be maintained.
For proper and efficient administration of justice in Uganda, judicial bottlenecks such as high costs of litigation, a lack of access to justice and rampant ignorance of the law should be dealt with. Also absenteeism of judicial officers, late coming of judicial officers, backlog cases due to limited staff, laziness of the judicial officers and inadequate facilitation of judicial officers has to be tackled.
Other challenges like poor record keeping and prolonged adjournments, among others, require immediate and workable solutions if we are to administer on behalf of the people. The above challenges need to be addressed first before amending the Constitution to alter the current bail conditions.
What we need, therefore, is a reform of the judicial system to make it more efficient and a useful tool for the administration of justice, but not to tamper with the right to bail.
Consultant in human rights law and access to justice