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The Law Relating To Bail In Uganda - Article 23(6) of the 1995 Constitution

The right to bail is a fundamental right guaranteed by Article 23(6) of the 1995 Constitution of the Republic of Uganda. Its basis can be traced in Article 28 of the same Constitution, states that an accused person is to be presumed innocent until he/she is proved or pleads guilty. It further provides that an accused is entitled to a fair and speedy trial before an independent and impartial court or tribunal that is established by law.
These two principles are part of the right to a fair hearing which is declared to be inviolable by Article 44 of the Constitution. The idea is that a person who is presumed to be innocent and who is entitled to a speedy trial should not be kept behind the bars unnecessarily long before trial. This is the rationale of Article 23 (6) of the Constitution.

What is bail?

Bail is the release from custody by a court of law of a person accused of a criminal offence after such person has entered a recognizance consisting of a bond with or without sureties, for a reasonable sum of money to the effect that he or she would appear before court for his or her trial. as seen in the case of Aliphusadi Matovu Vs Uganda Criminal Miscellaneous Application No 15 of 2005.
In simple terms, bail is the release of an accused person from detention pending trial or until Court takes a decision on his/her case.

When a person is arrested and detained or remanded, court is supposed to inform him or her of his/her right to apply to be released pending trial. In order for the accused person to be granted bail he/she must fulfill certain legal requirements and conditions which guarantee that he or she will appear in court for trial to answer charges against him or her.

The major laws relating to bail are:

The Constitution (The 1995 Constitution of Uganda (as amended))
The 1995 Constitution of the Republic of Uganda is the Supreme law In Uganda. All other laws must conform to the Constitution. In the event that any law is inconsistent with the Constitution, that law is void to the extent of its inconsistency with the Constitution. This means that where there is a conflict between the Constitution and any other law, the provisions of the Constitution must be followed. Refer to Law and Administration of Justice in Uganda, The Judicial Service Commission,2007,pg2.
The 1995 Constitution of Uganda provides on bail:‘ Article 23 (6)(a) provides for the right of an accused person to apply to court to be released on bail subject to the legal requirements and conditions which must be fulfilled before court grants bail.
Article 23(6)(b) gives the accused person the right to be released on bail, if the person has been on remand for sixty(60) days before trial, in respect of an offence that is triable by the High Court or subordinate court (Magistrate’s court).
Article 23(6) (c) gives the accused person the right to be released on bail if he or she has spent one hundred and eighty days (180) on remand in respect of an offence only triable by High Court. But the accused person must fulfil legal requirements and conditions set by court.

The Magistrates Court Act - M.C.A Cap 16
The Magistrates Court Act, Cap 16 (MCA) is the law governing the procedure applicable in Magistrate Courts. Magistrate courts are also referred to as lower courts or subordinate courts and they consist of The Chief Magistrates Court, Magistrate Grade I Court, and Magistrates Grade II Courts. These courts have authority to try criminal matters. The M.C.A gives powers to the Magistrate to grant bail to accused persons who have committed offences which are triable and bailable by them. However, there are offenses which can be tried by Magistrates for which they cannot grant bail and also cases which are neither triable nor bailable by them. In these cases, the Magistrate’s duty is to inform the accused person of his/her right to bail and also advise him or her to apply for bail in the High Court.
The MCA provides for situations and circumstances when a pre-trial detainee may be granted bail.( Section 75 (1) of the Magistrates Court Act) These are Where the accused is not being charged of any of the following offences: Acts of terrorism, Cattle rustling, Abuse of office, Rape, Embezzlement, Causing financial loss, Defilement, Offences under The Fire arm’s Act(The Fire arm’s Act, Cap.299 of 2000) punishable by at least ten years imprisonment or more, Offences triable by only the High Court, Corruption, Bribery and Any other offences for which the Magistrate Courts have no jurisdiction to grant bail. To note here is that the Magistrate has power to grant bail for any other offences triable by him/her that are not included in the above list.

The powers of a Chief Magistrate in relation to bail include:
Power to direct that an accused person be released on bail if bail was denied by a lower Court within his/her area of jurisdiction where the accused is charged with an offence triable by a Magistrate.
Reduction of bail bond where in the Chief Magistrate’s opinion, the amount set by the lower court is excessive or is intended to deny the accused bail if it was set by the lower courts.

The MCA provides for the following powers of the High Court in relation to bail
Where an accused person is charged with an offence triable by the Magistrates but is denied bail, the High Court can order that the person be released on bail.
The High Court can also order that the amount for bail bond be reduced.
If the accused person is charged with an offence triable by the Magistrates Court but not bailable by him/her, the High Court has power to direct that the accused person be granted bail.
If the High Court is not content with the bail bond (security) that the Magistrate set in order to release the accused person on bail, it can increase the bail bond and order for the arrest of the person who is released on bail until he/she pays the new increased amount of bail bond.
If the accused person fails to pay the new bail money the High Court may order for his/her imprisonment.

Mandatory bail.
Where an accused person is remanded in detention before his or her trial starts for a continuous period exceeding 180 days for major offences, and 60 days for minor offences,( Article 23 Constitutional Amendment Act No. 11 of 2005.) the Constitution and the MCA authorizes the Magistrate before whom that accused person first appears to release him or her on mandatory bail
However, the Magistrate may refuse to grant bail to an accused person even if he/she has completed the mandatory days on remand if;
The accused person is then committed or referred to High Court for trial.
If the Magistrate thinks that the release of the accused person is a threat to the public.
‘ Factors to consider before the Magistrate grants bail to an accused person.
The nature of the offense or accusation against the accused. If it is a minor offence, there are high chances of granting that person bail.
The severity of the punishment which conviction might entail. If the offence attracts a light punishment, then the court will be more likely to grant the application.
The antecedents (background and character) of the accused. Court will considers the general character and past conduct of the accused person. Where the accused person is a first offender, he/she stands higher chances of being granted bail.
Whether the accused has a fixed place of abode, which is a permanent residence or home within the jurisdiction of the court.
Whether the accused is likely to interfere with state witnesses when released.
The age and health status of the accused person.
Whether the accused person has sureties or not.In the event that bail is not granted to the accused, the Magistrate gives reasons for his/her decision and informs the accused person of his/her right to apply for bail in a higher Court.

Trial on Indictment Act (T.I.A)
The Trial on Indictment Act, Cap 23 (TIA) is the law governing the trial procedure of criminal cases in High Court. The High Court has unlimited power to hear criminal matters and appeals from the lower courts. The TIA gives High Court unlimited power to grant or deny accused persons bail and provides for the procedure adopted by Court in doing so. bail may be granted by the High Court at any stage of the proceedings. ‘Circumstances when a detainee may be released on bail by the High Court.( Section 15of the Trial Indictment Act.)
The High Court may grant bail to an accused upon the accused proving exceptional circumstances that entitle him/her to be granted bail and also showing that he or she will not abscond when released.

Exceptional circumstances include:
i.That the accused is suffering from a grave or serious illness which has been approved by a qualified medical officer of the prison or other institution where the accused is detained as being incapable of being adequately treated while in custody or detention.
ii.When the accused produces a Certificate of No objection signed by the Director of Public Prosecutions (DPP).The Director of Public Prosecutions is the head of the Directorate of Public Prosecution which institution is responsible for the prosecution of all criminal cases in the country. The DPP has offices in many districts of Uganda and these offices are referred to as offices of the Resident State Attorney.
iii.When the accused shows that he or she is either an infant, or of advanced age.

In determining whether the accused will not abscond when released court will consider the following factors;
i.Whether the accused has a place of abode within the court’s jurisdiction,
ii.Whether the accused has sound sureties within the court’s jurisdiction, to undertake that the accused shall comply with the conditions of his or her bail;
iii.Whether the accused has on previous occasions when released on bail failed to comply with the conditions of his or her bail; and
iv.Whether there are other charges pending against the accused.

When will an accused be entitled to Mandatory bail under the T.I .A?
If an accused person has been remanded in custody before the commencement of his or her trial;
In respect of any offence punishable by death and life imprisonment, for a continuous period exceeding 180days and, In respect of any other offence, for a continuous period exceeding 60 days, the judge before whom he or she first appears after the expiration of the relevant period shall release him or her on mandatory bail.
It is important to note that if court is of the opinion that the sureties are not substantial or reliable, the person released may be re-arrested and ordered to produce more sureties and if the accused fails totally he/she will be imprisoned.

The Police Act
The Police Act Cap. 303 is the law which governs the structure, organisation, discipline and functions of Police. This Act gives police officers the duty of keeping law and order by arresting offenders and bringing them to justice, preventing people from committing offences and making sure that people obey orders issued by the authorities.

The following provisions are very important:
A person arrested by the Police is supposed to be produced before the Magistrate’s court within forty eight (48) hours of his or her arrest.
The provisions of the Act26 which allowed for a seven day transfer period for someone arrested by police from a different area than where he committed the offence were held to be inconsistent with the constitution by the Constitutional Court.
If a person is detained in police custody beyond forty eight hours without being charged in court, then he or she can apply to a Magistrate within twenty four hours who will then order for his or her release.
If a person is tortured while in police custody, he or she can state his complaint to the Chief Magistrate who shall order for his or her examination and medical treatment at the expense of the State and the person responsible for the torture will be charged.
No money should be paid to police in order to be released on police bond.

Uganda People’s Defence Forces Act (UPDF ACT)
The Uganda People’s Defence Forces, Act No. 7 of 2005, is the main law governing the establishment and regulation of the army. The Act under Section 219 UPDF Act, it provides that a military court may grant bail to a person charged before it on the same considerations that govern bail in civil or ordinary courts.
Note: Courts have interpreted most of the above provisions and pronounced them null and void for being inconsistent with the Constitution and thereby ordered Parliament to amend the subordinate laws so as to bring them in conformity with the Constitution. This is the major focus of Chapter three of this Handbook(Foundation for Human Rights Initiative V Attorney General, Constitutional Petition No.20 of 2006.).

The Object of bail
The object or purpose of bail is to ensure that the accused person will attend his/her trial without being detained in prison on remand.

Effect of granting bail
The effect of granting bail is not to set the accused free but to release him/her from custody. This helps the accused person to prepare his/her defence, contact witnesses to testify in his/her favour and gives the Police ample time within which to effectively investigate and prosecute the case against the accused person. The sureties make an undertaking to court or enter recognisance that the accused person will appear in court on a date and time set by Court.
It should be noted that bail is not a punishment. It should therefore not be excessive and Magistrates or Judges should whenever possible grant bail to the accused person.
Likewise, the amount to be paid as security should not be excessive as to defeat the whole purpose of granting bail. In determining the amount to be paid, Court should put into consideration the nature and gravity of the charges brought against the accused person and the sentence to be given to the accused person in case of a conviction.

What is the effect of bail?
Upon the grant of bail, the accused is set free forthwith from prison, unless held on any other lawful charge. The accused is to enjoy all the benefits that accrue to a free person, subject to the bail terms set by court. This does not however mean that the accused is set free from the charges levelled against him or her. He/she continues to attend court and to answer to the charges until the Judge or Magistrate delivers his/her judgement.

Whether To grant or deny bail:
The law as explained above gives the accused person a right to apply for bail. However, it should be noted that the decision to grant or deny bail lies with the magistrate or Judge before whom the accused person is appearing. Once the accused person exercises his/her right by applying for bail, the presiding judge or Magistrate must weigh the arguments for and against the application and apply the law before he/she grants the accused person bail. This discretion has in the recent past been interpreted to be restricted to set conditions to ensure the accused person’s return to attend court when the trial commences. However, where the Magistrate or Judge is not convinced that the accused person will abide by the bail conditions, he/she has discretion not to grant bail.

The right to bail in Uganda has remained controversial since the year 2005. Well as the Constitution recognises the rights of an accused person to be released on bail, and the powers to release which is conferred on the Courts of Judicature, this power has been challenged many times or questioned by different stakeholders some times through Pre-trial detention. There is therefore a need to create awareness and to enhance a shared understanding of this right in order to ensure that the rights of pre-trial detainees are not compromised in any way.

How to legally start up a business entitity in Uganda

There various types of legal entities from which a lawyer can advise his or her client to legally setup in Uganda, in this post, they are disused together with the relevant provisions of the law as following;

1. Partnerships

-These are defined under section 2(1) of the Partnership Act to mean a relationship which subsists between or among persons not exceeding twenty in number who carry on a business in common with a view of making profits however under subsection 2 where it includes professionals they are limited to 50 persons.
-Inclusively under section 2(3) of the same act provides that registered companies under the company act or any other act relating to registration of joint stock companies are not partnerships.
-Section 47 considers another type of partnerships referred to as limited liability partnerships and consists of not more than 20 persons and has one or more persons called general partners who are liable for the debts and obligations of the firms.

However, it is imperative to note that partnerships have unlimited liabilities for each partner, no perpetual succession, no legal status separate from that of the partners and limited borrowing powers. Having regard to our client’s instructions, he wants to set up an entity with longevity like that of Guinness and perpetual succession through his son clemensio Bazekuketta. In totality he seeks to establish an entity that mirrors Guinness and as such a partnership would not be appropriate.

2. Sole proprietorship

-This is a business entity carried out by one individual who is directly in control of all the operations of the entity. The sole individual has full exposure and liability for the debts and other business liabilities and obligations thereto.
-This kind of entity is not independent of the proprietor and therefore any liabilities of the business are referenced to that individual and his ability to meet them.
-It is therefore important to note that our client’s intent is to include his son as a co-owner of the business and inclusively partner with experienced business managers thus excluding a sole proprietorship as a viable business entity

3. Cooperative societies

These are created b the cooperative societies act cap 112 and specifically under section 4 (1) (a) a minimum of 30 members is provided for. The main aim is to institute community development and the liability is established by statute. This type of entity definitely does not meet our clients’ needs as he intends for ownership that is limited to him and his son as co-owners.

4.  A Joint ventures

In United Dominion Corporation LTD V Brian Pty LTD (1985) 157 CLR 1 a joint venture was defined to mean “an association of persons for the purposes of particularly trading, commercial , mining, or other financial undertaking or endeavor with a view to mutual profit, with each participating usually( but not necessarily) contributing money, property or skill. They are usually intended to exist for a limited period of time. Our client clearly states that he wishes the business to last for a very long time just like Guinness. As such, a joint venture would not be appropriate.

5. Company

A company is defined under section 2 of the Companies Act to mean a company formed and registered under the companies act or an existing company or a re-registered company under the same act. In Salmon v Salmon 1897 AC 22, court observed that, a company is a legal entity with separate legal existence from its owners. The advantage of operating business under the entity of a company is that separation of ownership and control of the company allows it to raise capital on a large scale, and management can be left to the professional and skilled directors while shareholders can take on the role of capitalizing the business.

Companies are divided into two types and these are;
a) Public companies
b) Private companies
Section 5 of the Companies Act, 2012, defines a private company as one which restricts the right to transfer its shares and other securities, limits the number of its members to 100 (one hundred) and also prohibits raising capital publicly.
On the other hand, section 6 of the same Act provides that a public company is one which is not a private company as categorized in Section 5 of the companies Act.
It is important to note that section 4 (2) of the Companies Act further categorizes companies into three categories which include;

a) A company limited by shares

According to Section 4(2) (a ) companies act 2012, this is one where the liability of its members is limited by the memorandum of association to the amount if any, unpaid on the shares held by them. In other words, shareholders of this company are only liable to the extent of their unpaid capital contribution.

b) A company limited by guarantee

Under Section 4(2) ( b) liability of members of the company is limited by the memorandum of association to the amount which the members undertake in the memorandum to contribute to the assets of the company in the event of its being wound up. This type of company is appropriate for charitable organizations, reason being business requires capital which is usually raised by issue of shares

c) Unlimited companies

According to Section 4(2) (c) companies act 2012 this is a category of companies that does not have a limit on the liability of its members.

Promoters of a company can form a private limited liability company because of the following reasons.
Creating a company creates a legal entity which is separate from its members that is it creates a separate legal personality. (Salomon v A Salomon & Co Ltd [1896] AC 22). depending on the cirumstances, if a promoter anticipates lots of travel but he or she does not want to disrupt the business. he or she can form a company which will be separate from him or her.

Perpetual succession.
The company has indefinite duration. The death or bankruptcy does not terminate its life. From the facts at hand, our client is inspired by Guinness which has been running since 1759. We therefore advise him to form company since it has perpetual succession.

Organizational structures.
Power is divided between shareholders depending on capital contribution / members as well as directors. With such structures a client can easily involve his family in business and also hire other experienced managers as he wants.

Transferable shares.
Ownership is in form of shares which are easily transferable.
How to Startup a single member company in Uganda

How to Startup a single member company in Uganda

Lets imagine
Mr. Davido wants a “go it alone business” as he is not in position to trust anyone else. He is however desirous of ensuring continuity of the business in event of his death for a very long time just like Guinness. He also believes that at one time he may be able to work with his son.

  Issues of consideration.
1. what is the best possible business organization to setup?
2. What structures does Davido need to set up?
3. The salient features of the necessary documents.


(i) what is the best possible business organization to setup?
According to the facts at hand, Davido is not in position to work with anyone due to his mistrust for anyone else the Companies act No.1 of 2012 regulates the incorporation and formation of companies in Uganda.
S.4 of the Act provides that any one or two persons may for lawful purposes form a company by subscribing their names to the memorandum of association or registering the company as provided under the Companies Act.
According to the facts therefore, the best possible business organization available for Davido’s interests is a single member company
Single Member Companies are regulated by the Companies (Single Member) Regulations, 2016 which provide the procedure for their registration.

(ii) What structures does Davido need to set up?
Directors are the engine of the company as they are responsible for the day to day functioning of the same. Davido therefore needs to setup these structures.

S. 186 of the companies act provides for the structures that are key and vital in the operation of a single member company and it provides that a single member shall nominate two individuals, one of whom shall become nominee director in case of death of the single member and the other shall become alternate nominee director to work as nominee director in case of non-availability of the nominee director.

S.186 (2) of the companies Act spells out the powers of the nominee director who shall—
(a) manage the affairs of the company in case of death of the single member until the transfer of shares to legal heirs of the single member
(b) Inform the registrar of the death of the single member, provide particulars of the legal heirs and in case of any impediment report the circumstances seeking directions within fifteen days after the death of the single member;
(c) Transfer the shares to the legal heirs of the single member; and
(d) Call the general meeting of the members to elect directors.

S.187 provides for company secretaries however, S.187 (3) of the single member company provides that a single member company is not obliged to have a secretary.

(iii) The necessary documents for the formation of a single member company
Regulation 4 of the Companies Single Member Regulations provides that a single member shall submit to the registrar a dully filled form for registration of a company provided in the Second Schedule of the Act.
Regulation 5 of the Regulations provides a standard form memorandum of association of a single member company in the form set out in Table B of the Second Schedule to the Act which may be adopted by the company with or without modifications.
The law also provides standard form articles of association of a single member company in the form set out in the First Schedule to the Companies (Single Member) Regulations, which may be adopted by the company with or without modifications.


1. Memorandum of Association
· Name of the Company.
· The objects clause.
· Share capital.
· Value of the shares.
· Borrowing powers.
· The seal of the company.
· Notices.
· Nominee Directors and Alternate Directors.
· The subscriber, his occupation and postal address.
· Provision of a signature and witnessed.

2. Articles of association.
· Must be signed by the subscriber
· Clauses that bind the relationship of the director with the company
· Name and occupation of the Director.

Additional registration documents include the statutory declaration of compliance by the director or advocate engaged in the formation of the company, statement of nominal share capital and the particulars of directors including the particulars of a nominee director and alternate nominee and secretary of the company.( provided for in the schedules)
Regulation 6 requires that a nominee director or alternate nominee director shall be an individual; not being the secretary of the company or the single member of the company.
Under r.8 and r.9, upon registration of a company as single member company, it is issued a certificate of registration in its name with the initials “SMC LTD” or the words “Single Member Company Limited” at the end of its name.

How to Set up a limited liability company in Uganda

Imagine a scenario where Mr Domazo Bazekuketta, father to 26 year old Clemensio Bazekuketta, has just returned from  Dublin, Scotland where he worked for 30n years as a machine operator. Domazo has since become a celebrated brewer whose home-made brew Juggernaut Stout® made him a household name in Dublin. Through his cousin John Apenyimor, he procured protection of his product Juggernaut Stout® in Uganda last year. He has now relocated to Uganda and with his savings of GBP 117,000 wants to formally set up his trade and set the standard for a lasting business drawing his inspiration from the history of Guinness which has been running since 1759. He has instructed M/s Togikwatako Advocates & Solicitors to set up a local entity highlighting the critical role of stakeholder management in business sustainability and growth. He also wants to appoint directors not being family members.He would like to maintain a strong grip on the entity you establish for him unless and until he feels Clemensio Bazekuketta is ready to take up the reigns. He anticipates lots of travel but does not want to disrupt his business due to his intense travel and yet he does not want to be left out of critical decision making. He would like to partner with experienced business managers at a strategic level who can help him with decision making, supervise management of the entity, and give him a perspective that is not biased by ownership.

Issues of Consideration

1. What additional information is needed from Domazo Bazekuketta?2. How to set up a limited liability company limited by shares in Uganda to further his interests?
3. Who will be the stakeholders of this entity and why is it important to manage them?

Law Applicable
1. The Companies Act No. 1 of 2012
2. The Uganda Registration Services Bureau Act Cap 210
3. Electronic Transactions Act No. 8 of 2011
4. Electronic Signatures Act No. 7 of 2011
5. The Investment Code Act Cap 92 - Part III
6. The Stamps Act Cap 342 - Part II
7. The Stamps (Amendment) Act No. 2/2002
8. The Advocates Remuneration and Taxation of Costs Rules SI 267-4
9. The Companies Fees Rules SI 57 of 2005

Resolution of Issues

1. What additional information may be needed from a client?
To render proper legal advice and assistance to Mr Domazo Bazekuketta, we would ask him for this further information through an interview guide:
⦁ His particulars like name, age, and address.
⦁ The intended name of the entity he wants to set up and physical address of the same.
⦁ The kind of entity he wants to set up and how he intends to run it.
⦁ The names and particulars of the Directors of this entity and others such as the company secretary, auditor and other shareholders if any.
⦁ The number of shares and value of each share
⦁ The percentage shareholding he wants to own in the entity
⦁ The banker of the entity and the signatories to the entity’s bank account

2. What is the most suitable legal entity he should set up to further his interests?
There are various kinds of entities that Domazo can establish to set up his trade in Uganda like a partnership, Association, corporate society, joint venture, or a sole proprietorship but these will not properly suit his desire for the entity’s longevity like Guiness in the event that he dies.
The most appropriate legal entity for him to set up in the circumstances would be a Private Company limited by shares. Generally, company is a group of persons carrying on business with the view of making profits and contributing to the betterment of society. Legally, Section 2 of the Companies Act defines a company as a company formed and registered under the Act, or an existing company or a re-registered company under the Act.

According to Salmon v Salmon (1897) AC 22, a company becomes a legal entity separate and distinct from its members, with perpetual succession and can sue and be sued in its own name upon incorporation.

For a private company, it is one which limits the number of its members to 100 not including the company's former and current employees as stipulated under Section 5 of the Companies Act. A private company is also one where there are restrictions on the right to transfer shares and other securities, and also prohibits any invitation to the public to subscribe for any of its shares or debentures.
Section 6 of the Act provides that a company that is not a private company under section 5 is a public company. These characteristics of a company make it the most suitable as they cater for his interests in business longevity and replicate Guinness which has lived on even after the death of its founder. This is due to the fact that a company has perpetual succession and thus the death or retirement of a member does not have an effect on the company’s existence.
A company will also be the best avenue to insulate his business from family mismanagement and interference as any decisions affecting the company can only be made by special resolution. More so, the criteria for appointment of Directors, Company secretary, and Auditors will ensure that he works with independent professionals who can give him objective opinions and ideas not biased by ownership.
A company has a greater advantage when juxtaposed with a partnership which has no perpetual succession and limited borrowing powers. As in contrast to sole proprietorships which have one person owning the business, there is no protection as such are not legal entities distinct from their owner hence implying unlimited liability making them non viable in the circumstances.

Associations are defined as individuals or organizations pursuing a common objective. They also have limited liability by guarantee but lack perpetual succession. Often times, their main objective is not profit driven hence not commonly used as investment entities in Uganda.

Cooperative societies are created and governed by the Cooperative Societies Act, Cap 112. Section 4(1)a of this Act provides for a minimum of 30 members and their liability is statute created. While they can exercise perpetual succession and have corporate status, their main objective is community development, which not Domazo’s aim or objective.

Joint ventures equally don’t suffice because despite being profit oriented, they are governed by the Contracts Act and are for a definite period of time yet Domazo wants a long lasting investment hence not viable. This leaves a company as the best option.