Procedure for applying for bail In Uganda and the posed Challenges
In reference to the law relating to Bail, the general idea in regard to bail is that a person presumed to be innocent and who is entitled to a speedy trial should not be kept behind the bars unnecessarily long before their trial and this is the rationale of Article 23 (6) of the Constitution.’ as per Justice Twinomujuni: in 2004.
Bail in Magistrates Court.
How does one apply for bail in a Magistrate’s court
An application for bail can be made orally by an accused or his or her lawyer/advocate in court. Alternatively it can be made in writing and should be supported by an affidavit. An affidavit is a sworn statement made by someone, setting forth the reasons as to why court should consider granting their application and could be used against him/ her in the courts of law.
What does a Magistrate’s court consider in order to grant bail?
When an application for bail is made by the accused or his lawyer in a Magistrates’ court, certain factors shall be put into consideration by the court on whether or not to grant bail.
These include:
The nature of the offense the accused is charged of.
The seriousness of the offense and how severe the likely punishment for the offence is.
The character of the accused, in particular whether the accused is likely to report to Court whenever required.
Whether the accused has a fixed place of abode (home) within the courts jurisdiction (area of operation or control).
Whether the accused is likely to interfere with State witnesses.
What does court require of an accused asking for bail?
Sureties and Security
Who is a surety?
A surety is a person who guarantees to court upon the grant of bail to an accused that the accused will return to court every time he is required.
What should a substantial surety possess?
For a person to be a surety in court, they should possess the following
An introduction letter from the Local Council 1 Chairman of the area where they reside.
A valid identity card indicating their place of work, business or residence, and in the alternative.
A passport or driving permit can also be used for identification.
What is the role and duty of a surety?
A surety has the principal duty of ensuring that the accused does not abscond from justice. The surety therefore has to ensure that the accused regularly appears in court till the conclusion of the case.
What happens if a surety wants to be discharged?
It should be noted that sureties have a right to apply to court to discharge their bond. If this is done, court will order for the arrest of the accused so that he/ she can find other sureties.
What happens if a surety dies?
If a surety dies, their estate is no longer liable and the accused is required to find another surety.
What is Security?
Security is the amount of money paid or property pledged to court by the accused or his/ her surety as a guarantee that person will appear for trial.
What happens if the accused deposits the security required?
Security maybe in form of cash or some other property and court will require this when it is satisfied with the accused’s sureties.
A receipt called a “General receipt” should always be issued on payment and the accused will use this when claiming a refund of his/ her bail money. This money can only be refunded when the case is completed and if the accused has fully complied with the bail terms.
The accused may also be required to deposit his/ her passport in court as part of the bail terms.
What happens when the accused fulfills the bail terms?
After complying with the terms of bail, the accused and his sureties will fill and sign the bail form which the Magistrate will sign and seal.
These forms are then presented to the Prison warders for release of the accused from the court cells immediately, unless held on some other lawful charge.
What happens when the accused fails to fulfill the bail terms?
If bail is granted but the accused fails to comply with the terms, he/ she is remanded till a specified date or until he/ she complies with the terms.
The accused can however be produced in court, before a specified date for purposes of being released on bail if they, their relatives or their lawyer apply for a production warrant.
What happens when a Magistrate’s court refuses to grant bail?
If a lower court denies an accused bail because of the fact that it has no powers to grant bail to such a person, then it shall record its reasons and inform the accused of his right to apply for bail to the High Court. On application by the accused to the High Court, it can order grant of bail for those offences that a Magistrate court is excluded from.
The High Court can also order the reduction or increase of bail granted under a Magistrate court. Failure of an accused to comply with an order for increased bail can lead to his or her arrest and subsequent committal to prison.
Bail in the High Court
Under what circumstances will High Court grant bail?
The High Court has the power to grant bail to a person accused of the offenses mentioned earlier above that a Magistrate court is excluded from granting bail, or if the accused is tried before it, if he/ she does not prove to court that;
a) Exceptional circumstances justify his or her release on bail.
b) That the accused will not abscond when released on bail.
What amounts to exceptional circumstances?
• Grave illness of the accused certified by a medical officer of the prison or other institution or place where accused is detained, as being incapable of adequate medical treatment while in custody.
• A certificate of No Objection to the grant bail, signed by the Director of Public Prosecutions.
• The infancy or advanced age of the accused.
• What is considered in determining whether the accused will not abscond?
• Whether the accused has a fixed abode (home) within the jurisdiction (area of control) of court or is ordinarily resident outside Uganda?
• Whether the accused has sound securities within the jurisdiction to undertake that he/ she shall comply with conditions of their bail?
• Whether the accused has on previous occasions when released on bail failed to comply with the conditions of his/ her bail?
• Whether there are other charges pending against the accused?
How does one apply for bail in the High Court?
The procedure for applying for bail in the High Court is not very different from that mentioned in the Magistrate courts. Applications to the High Court should strictly be in writing, by Notice of Motion and should be supported by an affidavit.
The High Court will require substantial sureties, sometimes deposit of a specified sum of money or deposit of important documents like land titles etc. If these conditions are not met then court will refuse to grant bail. It is however advisable for an accused to reapply for bail before the same court he/ she applied the first time, after lapse of some time or if the conditions under which bail was refused have changed.
What is the procedure if an accused has been remanded for a longer period than is required by law?
If an accused person has been remanded in custody before commencement of his/ her trial for 180 days or more in respect of any offence punishable by death or 60 days or more in respect of any other offence, a judge or Magistrate before whom an accused is brought shall release him/ her on bail on their recognizance. At the lapse of this statutory period, the accused or his advocate is supposed to inform the court to which he first appears about his status, and thereafter, the court has no discretion on whether or not to grant the bail, but to just set the terms for the bail.
What happens where the accused has been committed to the High Court?
Committal takes place when an accused who is going to be tried in the High Court is sent for trial by a Magistrate’s court. Where an accused that is on bail is committed for trial to the High Court, the bail automatically lapses and he or she is supposed to make a fresh application to the High Court.
Can an accused apply for bail when appealing his case?
Bail can be granted to a convicted person at any time pending the determination of his/ her appeal. The High Court, Court of Appeal and Supreme Court have powers to grant bail to an appellant except where he/she is sentenced to death. It is however a necessary requirement that the accused should file an appeal in a competent court before he/ she can apply for bail pending appeal.
When will bail pending appeal be considered?
Bail pending appeal will be granted after court has taken into regard exceptional circumstances. These include;
• The likelihood of success of the appeal.
• The likelihood of a delay in hearing the appeal.
• The length of the sentence imposed.
• The complexity of the case.
What are the responsibilities of sureties upon the grant of bail?
• To sign the bail papers.
• To ensure that the accused honours the bail terms.
• To ensure that the accused returns to court whenever called upon to do so.
• To inform court whenever there is a variance or unreasonable conduct on the part of the accused so as to request for a discharge.
What happens upon breach of the bail terms by the accused?
Upon breach of the bail terms, the accused is liable to be arrested and sent toprison, unless he or she shows reasonable cause as to why he or she should not be.
Bail in the Court of Appeal
The Court of appeal is an appellate Court (not court of original jurisdiction) and it hears appeals from the decisions of High Court. When a person is convicted and sentenced by the High Court that person is free to appeal against the decision of High Court in the Court of appeal. The procedure for application for bail is the same as in High Court.
Bail in the Supreme Court
The Supreme Court is the highest and final court of appeal. When a convicted person fails to secure bail in the Court of appeal he can lodge an appeal in the Supreme Court.
The procedure for application is the same as in High Court.
Challenges posed by the law on bail
Public opinion
The general public has a mentality that when a person is arrested for commission of an offence, he/she should be locked away indefinitely or at least until his case is tried and concluded. Anything short of this amounts to bribery or corruption on the Police or judicial officers’ part to ensure the accused person’s release. This has led to loss of confidence in the judicial system and accounts for most of the mob justice cases. Thus there is a dire need for sensitisation of the public on the law of bail, its application and implications.
Political pressure
The law on bail has equally been misunderstood by politicians who use it as a tool for oppressing their opponents. Often times when a suspect is arrested on charges which have political connotations, his/her right to bail is clouded with political tension and threats to judicial officers.
A case in point is when the black mamba usurped the powers of court, re-arrested and detained a presidential aspirant upon release on bail by the High Court. The public however needs to understand that rights are inherent and not granted by the state, they cannot just be wished away by the government of the day. That is why the Magistrates and Judges before whom the accused persons appear must always exercise their discretion judiciously and grant these people bail on conditions that ensure their return to court contrary to any executive guidelines that they may receive.
Jumping bail
In some cases accused persons released on bail fail to meet the conditions set by court to ensure their return to attend trial. This derails the efforts of the prosecutors and judicial officers and casts doubt on the character of the accused person. That is why the law requires that as soon as the accused person jumps bail or fails to turn up for trial as required by Court, a warrant for his or her arrest is issued and once arrested he/she is detained never to be released on bail again. It is thus important for accused persons to understand that release on bail is not an acquittal and that they must turn up for trial, lead evidence in defense of their cases, receive the judgement and serve the sentence given.
Bail Conditions
The law on bail requires an accused person to fulfill several conditions before being granted bail, including, among others, taking a personal cognizance from him or her, admitting at least two substantial sureties who must know or have a close relationship with the accused person and are duly recommended by the local authorities where they live and are bonded in a sum of money determined by Court. This is to ensure that the accused person shall return to court whenever he or she is called upon to do so. On many occasions the cash bond cannot be raised by the accused especially when they are indigent. Therefore, whereas there is a need by courts to balance the interest of justice, many times these monetary conditions are restrictive on the right to bail for the poor persons.
Tags : Civil Procedure Criminal Law