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Kyambadde Associates & Legal Consultants: Criminal Law

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.