Bail is a fundamental right
May 22, 2011
HIS Excellency the President of Uganda recently made statements to the effect that; Bail should be scrapped for demonstrators and economic saboteurs. Bail for capital offences like treason, defilement, murder and rape should be denied until after 180 days on remand.
By James Sebugenyi
HIS Excellency the President of Uganda recently made statements to the effect that; Bail should be scrapped for demonstrators and economic saboteurs. Bail for capital offences like treason, defilement, murder and rape should be denied until after 180 days on remand.
Rioting be added to a list of offences which should not be granted bail. As a statutory professional body we seek to educate all citizens, Parliament and the judiciary about the intended actions and their likely consequences basing on the legal regime with regard to the constitutional right to bail. Bail was defined in Lawrence Luzinda vs. Uganda to mean an agreement between the court, the accused and his sureties that the accused will attend his trial when summoned to do so. It is a recognisance 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 trial.
Foundations of bail
In Uganda, the accused person’s right to bail stems from Article 23(6) of the Constitution of Uganda 1995 which provides that every person accused of a criminal offence has a right to apply to a competent court for bail. Thus bail is one of the fundamental rights of an accused person. The most important basis for the right to apply for bail can be found in the presumption of innocence contained in Article 28(3)(a) of the Constitution. In Uganda vs. Dr. Kizza Besigye, the Constitutional Court made it clear that since the accused is presumed innocent until proven guilty, he or she should be given an opportunity to prepare his case.
The other is the right to liberty which is guaranteed under Article 23 of the Constitution. It is stated here that everyone has a right to liberty and this liberty can only be denied in exceptional circumstances including where one is suspected of committing a criminal offence.
Grant of bail: is it automatic?
The position is that the granting/denying of bail is an exercise of judicial discretion. Therefore, the power to grant bail is a discretion exercised by judicial officers whose role is to apply the law to the prevailing circumstances in a given case. Initially it was wrongly-held that bail is an automatic right but this has since been corrected. In Uganda vs. Kizza Besigye, the constitutional court authoritatively declared that the grant of bail is a discretion which court exercises in accordance with the law. Similarly in Florence Byabazaire vs. Uganda Justice Akiiki Kiiza reiterated that the accused person has no automatic right to bail but rather the accused has the right to apply for bail and Article 23(6) confers discretion on Court to decide whether to grant bailor no to grant it.
Considerations for bail
Circumstances which govern the grant of bail are set out in Article 23 of the Constitution, S.77 of the Magistrate Courts Act Cap 16 for applicants in the Magistrates Courts and S.15 of the Trial and Indictments Act for trials in the High Court. Some of the requirements under S.77 include the nature of the accusation, gravity of the offence and severity of sentence.
The other consideration contained in S.77 refers to antecedents of the accused. Thus an accused person who has been convicted a number of times before may be denied bail. S.77(d) enjoins courts to consider whether the accused person has a fixed place of abode within the court’s jurisdiction.
The last of the considerations under S.77 is whether the accused will interfere with any of the prosecution witnesses.
Grounds for grant of bail in the High Court are contained in S.15 of the TIA. The TIA provides that the accused person must prove that exceptional circumstances exist which justify his or her release on bail. S.15(3) provides for grave illness certified by a medical officer of the prison or other institution that the accused cannot receive adequate treatment while in custody.
S.lS(3)(a) provides for a certificate of no objection from the Director of Public Prosecution and paragraph (c) provides for infancy or advanced old age.
Mandatory bail
While it is to be emphasised that the power to grant or not to grant bail is vested in the exercise of judicial discretion by the judge or magistrate, Article 23 provides for mandatory bail.
Under Article 23(6)(b) where a person has been remanded in custody, in case of an offence triable by both the High Court and Magistrates Court, for 60 days before trial, Court shall release him or her on such conditions as it thinks fit. In such a case, Court’s only discretion is limited to determining the circumstances of release.
A related provision is Article 23(6)(c) which deals with offences which are only triable by the High Court and prescribes a time period of 180 days.
The foregoing discussion is a restatement of the legal position that the accused person has a right to apply for bail but whether to grant bailor not to is a decision arrived at by Court by exercising judicial discretion.
In this respect, a balancing act should always be made between protecting the rights of the accused and ensuring that justice is done and public confidence in the criminal justice system is maintained.
Effects of the proposal
The proposal would go against local and international laws on the established principles of bail. Already granting of bail is constrained under our legal system.
The proposal will create legislation directed to particular citizens with a deliberate aim to encroach on their rights which is contrary to the cardinal principle of rule of law.
Tile Police will relax in their duty to carry out quick investigations of crimes.
Prisons will be congested with suspects on mere allegations pending trial.
The Government will be faced with potential claims for compensation and damages upon acquittals of suspects or withdrawal of untenable criminal charges.
If suspects are to be mandatorily remanded for six months, it will create an environment for extortions from accused persons by unscrupulous people or security agents as suspects will pay any amount to avoid the mandatory incarceration. The question is, what will stop some malicious people from using the system to frame charges against innocent people in order to send them into prison for six months without bail?
On charges being preferred under the categorised offences, you automatically serve a six-months sentence before trial.
We wish to advise our 9th Parliament that some of the cardinal principles of the rule of law are that:
Legislation directed to those with “white†hair is incompatible with the rule of law.
Law must afford adequate protection of fundamental human rights.
Adjudicative procedures provided by the state should be fair and be seen to be free and fair.
Rule of Law requires compliance by the state with its obligations in international law.
As the Uganda Law Society (ULS), we recommend this saying to be the yardstick for the 9th Parliament: “It is better to fail in a cause that will ultimately succeed than to succeed in a cause that will ultimately fail.â€
Subject to what the actual proposal will be and as shall be tabled, ULS will be at the forefront of advising, cautioning and guiding with objectivity and a voice of reason approach on this very important constitutional issue.
For God and my Country.
The writer is the president, Uganda Law Society
HIS Excellency the President of Uganda recently made statements to the effect that; Bail should be scrapped for demonstrators and economic saboteurs. Bail for capital offences like treason, defilement, murder and rape should be denied until after 180 days on remand.
Rioting be added to a list of offences which should not be granted bail. As a statutory professional body we seek to educate all citizens, Parliament and the judiciary about the intended actions and their likely consequences basing on the legal regime with regard to the constitutional right to bail. Bail was defined in Lawrence Luzinda vs. Uganda to mean an agreement between the court, the accused and his sureties that the accused will attend his trial when summoned to do so. It is a recognisance 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 trial.
Foundations of bail
In Uganda, the accused person’s right to bail stems from Article 23(6) of the Constitution of Uganda 1995 which provides that every person accused of a criminal offence has a right to apply to a competent court for bail. Thus bail is one of the fundamental rights of an accused person. The most important basis for the right to apply for bail can be found in the presumption of innocence contained in Article 28(3)(a) of the Constitution. In Uganda vs. Dr. Kizza Besigye, the Constitutional Court made it clear that since the accused is presumed innocent until proven guilty, he or she should be given an opportunity to prepare his case.
The other is the right to liberty which is guaranteed under Article 23 of the Constitution. It is stated here that everyone has a right to liberty and this liberty can only be denied in exceptional circumstances including where one is suspected of committing a criminal offence.
Grant of bail: is it automatic?
The position is that the granting/denying of bail is an exercise of judicial discretion. Therefore, the power to grant bail is a discretion exercised by judicial officers whose role is to apply the law to the prevailing circumstances in a given case. Initially it was wrongly-held that bail is an automatic right but this has since been corrected. In Uganda vs. Kizza Besigye, the constitutional court authoritatively declared that the grant of bail is a discretion which court exercises in accordance with the law. Similarly in Florence Byabazaire vs. Uganda Justice Akiiki Kiiza reiterated that the accused person has no automatic right to bail but rather the accused has the right to apply for bail and Article 23(6) confers discretion on Court to decide whether to grant bailor no to grant it.
Considerations for bail
Circumstances which govern the grant of bail are set out in Article 23 of the Constitution, S.77 of the Magistrate Courts Act Cap 16 for applicants in the Magistrates Courts and S.15 of the Trial and Indictments Act for trials in the High Court. Some of the requirements under S.77 include the nature of the accusation, gravity of the offence and severity of sentence.
The other consideration contained in S.77 refers to antecedents of the accused. Thus an accused person who has been convicted a number of times before may be denied bail. S.77(d) enjoins courts to consider whether the accused person has a fixed place of abode within the court’s jurisdiction.
The last of the considerations under S.77 is whether the accused will interfere with any of the prosecution witnesses.
Grounds for grant of bail in the High Court are contained in S.15 of the TIA. The TIA provides that the accused person must prove that exceptional circumstances exist which justify his or her release on bail. S.15(3) provides for grave illness certified by a medical officer of the prison or other institution that the accused cannot receive adequate treatment while in custody.
S.lS(3)(a) provides for a certificate of no objection from the Director of Public Prosecution and paragraph (c) provides for infancy or advanced old age.
Mandatory bail
While it is to be emphasised that the power to grant or not to grant bail is vested in the exercise of judicial discretion by the judge or magistrate, Article 23 provides for mandatory bail.
Under Article 23(6)(b) where a person has been remanded in custody, in case of an offence triable by both the High Court and Magistrates Court, for 60 days before trial, Court shall release him or her on such conditions as it thinks fit. In such a case, Court’s only discretion is limited to determining the circumstances of release.
A related provision is Article 23(6)(c) which deals with offences which are only triable by the High Court and prescribes a time period of 180 days.
The foregoing discussion is a restatement of the legal position that the accused person has a right to apply for bail but whether to grant bailor not to is a decision arrived at by Court by exercising judicial discretion.
In this respect, a balancing act should always be made between protecting the rights of the accused and ensuring that justice is done and public confidence in the criminal justice system is maintained.
Effects of the proposal
The proposal would go against local and international laws on the established principles of bail. Already granting of bail is constrained under our legal system.
The proposal will create legislation directed to particular citizens with a deliberate aim to encroach on their rights which is contrary to the cardinal principle of rule of law.
Tile Police will relax in their duty to carry out quick investigations of crimes.
Prisons will be congested with suspects on mere allegations pending trial.
The Government will be faced with potential claims for compensation and damages upon acquittals of suspects or withdrawal of untenable criminal charges.
If suspects are to be mandatorily remanded for six months, it will create an environment for extortions from accused persons by unscrupulous people or security agents as suspects will pay any amount to avoid the mandatory incarceration. The question is, what will stop some malicious people from using the system to frame charges against innocent people in order to send them into prison for six months without bail?
On charges being preferred under the categorised offences, you automatically serve a six-months sentence before trial.
We wish to advise our 9th Parliament that some of the cardinal principles of the rule of law are that:
Legislation directed to those with “white†hair is incompatible with the rule of law.
Law must afford adequate protection of fundamental human rights.
Adjudicative procedures provided by the state should be fair and be seen to be free and fair.
Rule of Law requires compliance by the state with its obligations in international law.
As the Uganda Law Society (ULS), we recommend this saying to be the yardstick for the 9th Parliament: “It is better to fail in a cause that will ultimately succeed than to succeed in a cause that will ultimately fail.â€
Subject to what the actual proposal will be and as shall be tabled, ULS will be at the forefront of advising, cautioning and guiding with objectivity and a voice of reason approach on this very important constitutional issue.
For God and my Country.
The writer is the president, Uganda Law Society