Courts’ Interpretation Of The Law On Bail In Uganda
The right to bail is a fundamental right that is guaranteed by The constitution. This Constitutional right of an accused person to apply for bail flows from the presumption of innocence as provided for in Article 28(3) (a) of the 1995 Constitution of Uganda, It states that; “An accused person is presumed to be innocent not until proved guilty or until that person has accepted guilt”. It further provides that an accused is entitled to a fair and speedy trial before an independent and an impartial court or a tribunal that is established by law.
The Constitution in this Article recognizes the common law presumption as a fundamental human right or an inherent human right. This therefore means that a person should only lose his or her freedom after he or she has been convicted. Thus in granting bail, courts slightly move away from the strict requirements in the law, and instead are driven more by the need to give maximum effect to the constitutional provisions.
While interpreting the constitutional provisions on bail, Justice Lugayizi Observed In the case of Lahan Yahaya V Uganda. Miscellaneous Application No. 96 of 2005. that “In a case where court is considering whether one has a constitutional right to bail, since one is to be presumed innocent until proven guilty, then it would necessarily follow that any court which denies such an accused person bail would be acting unconstitutionally”.
The court therefore settled for the view that bail is a constitutional right which flows from the presumption of innocence under Article 28(3) (c) of the Constitution. This decision has since been followed by similar decisions in agreement. ASimilar decisions was seen in the case of Aliphusadi Matovu V Uganda – Criminal Application No. 15 of 2005; and Dennis Obua V Uganda – Miscellaneous Application No. 18 of 2005.
Likewise, Article 23(6) (a) of the Constitution provides that “A person is entitled to apply for bail and court may grant that person bail on such conditions as it considers reasonable”. This article has sometimes been interpreted by Courts to mean that Court has discretion (power) to refuse the grant of bail to a person accused of a criminal offence. However Some other courts have argued that this should not be the case and that when court is considering an application for bail, it must bare in it's mind the fact that the applicant has a Constitutional right to bail.
In balancing both views, the Constitutional Court In the petition of Joseph Tumushabe V Attorney General – Constitutional Petition No.6 of 2004. Court held that “When interpreting the Constitution, all the provisions must be read together. Thus if all the provisions of the Constitution are interpreted rightly and not separately, that leaves court with one alternative and that is to release the accused person on bail”. However this release should be on conditions court considers reasonable, which in essence means that the conditions should guarantee the accused person’s return to court to answer the charges against him or her.
In addition, Article 28(1) of the Constitution provides for an accused person’s right to a fair and speedy trial. This is in line with Article 14(1) of the United Nations Covenant on Civil and Political Rights, and Articles 7 and 14 of the African Charter on Human and Peoples Rights of 1981. These articles are in line with the legal maxim that “Justice delayed is Justice denied”. In other words, once an accused person is arrested he or she should be charged,tried and either convicted or acquitted within the shortest time possible.
This is because if a speedy trial is not conducted, evidence in support of the accused could be distorted, and this person’s freedom will be restricted yet he might actually be innocent. Remember that the person’s right to liberty is a fundamental human right which should only be restricted upon conviction of that person.
It is also for this reason that Article 23(6) (b) and(c) of the Constitution provides that “if a person is remanded for an offence triable by High Court or a lower court for sixty days or more, or for 180 days or more for a case triable only by High court, then that person shall be released by court on conditions it considers reasonable”. This provision is meant to allow the Police to thoroughly investigate the accusations brought against the accused person and is in line with the provision for a fair and speedy trial. It should however not be misunderstood to mean that all accused persons must first be remanded for those days before they are granted bail. NO. The right to apply for bail commences as soon as the accused person is charged with an offence and the presiding Magistrate or Judge’s duty then is to set conditions that will ensure that person’s return to attend trial.
However, there seems to be other interpretations as to whether bail is a constitutional right. The contention was settled by the Constitutional Court, In Uganda Law Society V Attorney General, 2005 when it decided that, “The right to apply for bail is a constitutional one vested in everyone, although it does not necessarily follow that one is entitled to bail automatically. The court will then have to judiciously exercise its discretion as to whether to grant the accused bail or not”.
The law at the moment therefore is such that whereas all accused persons have a constitutional right to apply for bail, it will be at the discretion of the court to grant the bail or not. More recent decisions seem to suggest that” The test as to whether to grant bail or not should be whether the accused will turn up for trial or not. as seen in the case Uganda V Hussein Akbar Godi – Miscellaneous Application No. 20 of 2009.
It should be remembered that one of the considerations of court before granting bail is whether the accused will not interfere with the witnesses. Before denying bail to an accused on grounds of interference with the prosecution case however, In Uganda V Nadiope and 5 others it was decided by court that the prosecution has to specifically prove that, and court should not act on mere suspicions. If the prosecution fails to prove this, then court should go ahead and grant the accused person bail since bail should not be denied as some form of punishment.
It is also important to note that if court is to set bail terms for the grant of bail, for example, payment of money by the accused, then the money should not be so high as to make it virtually impossible for the accused to pay, nor should it be so low so as to defeat the purpose for which it was asked. Therefore it can be concluded that in exercising its discretion regarding bail, court should always act judiciously and reasonably. As it has been emphasized by some of the decisions passed by judges in some courts, the Constitution is the Supreme law of Uganda and all other laws must conform to its requirements.
Foundation for Human Rights Initiative has also been at the forefront of challenging some of the provisions to do with the constitutionality of pretrial bail. In its petition to the Constitutional Court, the court ruled that the provisions under Section 16 of the TIA- Trial on Indictments Act which called for more days for an accused to spend on pre-trial remand were inconsistent with Article 23 (6) of the Constitution which calls for lesser days and thus were nullified. Similarly provisions of the Magistrates Courts Act under Section 76 of the MCA. which called for more days for pre-trial remand were also nullified on similar grounds. An appeal was made to the Supreme Court challenging other provisions to do with the grant of bail, which did not succeed in the Constitutional court petition. Like Sections 14 (2) and 15 of the TIA. The appeal argues, among others that making an accused wait for the lapse of the statutory period before the grant of bail is unconstitutional.
There are also questions regarding the validity of S.76 of the Magistrates Courts Act which provides for the lapse of bail upon committal and Section 75(2) of the Magistrates courts Act which prohibits the grant of bail by Magistrate courts in some instances. The outcome of this appeal will be crucial in further streamlining this area of bail.
Tags : Civil Procedure