By
Bakampa Brian Baryaguma
1.
Introduction
No single legislative
enactment in Uganda defines the term “bail.” Fortunately, however, several
scholars have provided useful definitions. B.J. Odoki defines bail as, ‘… an
agreement or recognisance between the accused (and his sureties, if any), and
the court that the accused will pay a certain sum of money fixed by the court
should he fail to appear to attend his trial on a certain date.’[1]
The Oxford Dictionary of Law defines bail as,
‘The release by the police, magistrates' court, or Crown Court of a person held
in legal custody while awaiting trial or appealing against a criminal
conviction.’[2]
Osborne’s
Concise Law Dictionary defines it as, ‘The release from
the custody of officers of the law or the court of an accused or convicted
person, who undertakes to subsequently surrender to custody.’[3]
According to Francis J.
Ayume,[4] two
basic ideas underlie bail:–
(a)
the presumption that the accused is
innocent until proved guilty or upon he/she pleading guilty;[5] and
(b)
the profound belief that the accused is
in the best position to build up his/her defence at the trial.
The object of bail is
to ensure that the accused person appears to answer the charge against him / her,
without being detained in prison on remand, pending his / her trial,
effectively temporarily releasing him / her from court or prison / police
custody.[6]
2.
The
Legal Basis of Bail
Bail is a
constitutional right, guaranteed under article 23(6) of the 1995 constitution,
and it states as follows:–
Where a person is arrested in respect of a criminal offence –(a) the person is entitled to apply to the court to be released on bail, and the court may grant that person bail on such conditions as the court considers reasonable;(b) in the case of an offence which is triable by the High Court as well as by a subordinate court, if that person has been remanded in custody in respect of the offence for sixty days before trial, that person shall be released on bail on such conditions as the court considers reasonable;(c) in the case of an offence triable only by the High Court, if that person has been remanded in custody for one hundred and eighty days before the case is committed to the High Court, that person shall be released on bail on such conditions as the court considers reasonable.
In the case of Attorney General Vs Joseph Tumushabe,[7]
Mulenga J.S.C. (as he then was), stated that, ‘… the genesis of the right to
bail is the protection of the right to liberty….’
Article 23(6) is beefed
up by, among others,[8] sections
14 and 15 of the Trial on Indictments Act
(hereinafter, the TIA).[9] Section
14 concerns release of accused persons on bail. Sub-section (1) thereof grants
discretionary powers to the High Court to, ‘…at any stage in the proceedings
release the accused person on bail, that is to say, on taking from him or her a
recognisance consisting of a bond, with or without sureties, for such an amount
as is reasonable in the circumstances of the case, to appear before the court
on such a date and at such a time as is named in the bond.’
Section 15 provides for
refusal to grant bail. Under sub-section (1), the High Court may refuse to grant
bail to an accused person upon his / her failure to prove to court’s
satisfaction that:–
(a) exceptional
circumstances exist justifying his or her release on bail; and
(b) he or she will not
abscond when released on bail.
Under sub-section (3),
it is enacted that:–
In this section, “exceptional circumstances” means any of the following–(a) grave illness certified by a medical officer of the prison or other institution or place where the accused is detained as being incapable of adequate medical treatment while the accused is in custody;(b) a certificate of no objection signed by the Director of Public Prosecutions; or(c) the infancy or advanced age of the accused.
Sub-section 4 provides
that:–
In considering whether or not the accused is likely to abscond, the court may take into account the following factors–(a) whether the accused has a fixed abode within the jurisdiction of the court or is ordinarily resident outside Uganda;(b) whether the accused has sound securities within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail;(c) whether the accused has on a previous occasion when released on bail failed to comply with the conditions of his or her bail; and(d) whether there are other charges pending against the accused.
The constitutionality
of these provisions was challenged in the case of Foundation for Human
Rights Initiatives v Attorney General,[10]
wherein it was argued that they are inconsistent with article 23(6), among
others. In rejecting this contention, the Constitutional Court held that they
only set guidelines, but not directions, and are therefore justified. In their
Lordships’ view, ‘Rights, be they fundamental rights or not, must be enjoyed
within the confines of the law.’[11]
3.
The
Interpretation and Application of Bail Provisions by the Courts
The perennial question
is whether bail is an automatic right; in other words, whether it is
discretionary or mandatory.
In the case of Sudhir Ruparelia Vs Uganda,[12] the
High Court held that the granting of bail is not automatic: court has to
exercise discretion whether to grant bail, or not.
This question again
arose in the case of Uganda (D.P.P) Vs
Col. (Rtd) Dr. Kizza Besigye,[13]
where the issue was whether under article 23(6) of the Constitution, courts
have the discretion to grant or not to grant bail. The Constitutional Court
applied the literal rule of interpretation in resolving this issue.
Commenting on paragraph
(a), the Court held that, ‘… the context of article 23(6)(a) confers discretion
upon the court whether to grant or not to grant bail,’ and concluded that, ‘Bail
is not an automatic right.’ The Court reasoned that, ‘Under article 23(6)(a), the accused is
entitled to apply for bail. The word “entitled” creates a “right” to apply for
bail and not a right to be granted bail. The word “may” creates a discretion
for the court to grant or not to grant bail.’ (emphasis in original). Hence,
the word “may” was understood to be permissive, optional, or discretional.[14]
Turning to paragraphs
(b) and (c), the Constitutional Court held that, ‘… the court has no discretion
to grant or not to grant bail after the accused has shown that he / she has
been on remand in custody for 60 days before trial or 180 days before committal
to the High Court.’[15]
Regarding paragraph (b)
the court held that,
… where the accused has been in custody for 60 days before trial for an offence triable by the High Court as well as a subordinate court, that person shall be released on bail on such conditions as the court considers reasonable. Here the court has no discretion. It has to grant bail because of the use of the phrase ‘shall be released on bail’ appearing therein. This is the opposite of the phrase ‘may be released on bail’ as appears in 23(6)(a)…. (emphasis in original)
Accordingly, the word
“shall” was understood to be imperative, or mandatory, thereby denoting
obligation.
Regarding the
complementary provisions like section 15 of the TIA (and by necessary
implication other laws like the Magistrates
Courts Act), the court observed that these are regulatory, stating that, ‘In
this case, the court may refuse to grant bail where the accused fails to show
to the satisfaction of the court exceptional circumstances….’ Thus, in a number
of cases, the applicants were denied bail for failing to fulfill the conditions
given. In others, the courts concerned gave reasonable guidance as the ensuing
discussion demonstrates.
In Hon. Godi H. Akbar Vs Uganda,[16] the state, wishing to
defeat the application for bail, contended that the applicant would interfere
with its undisclosed allegedly delicate and sensitive witnesses. Rejecting the
objection, Justice Zehurikize said that, ‘It was necessary to tell Court as to
what makes the witnesses so delicate to warrant the need to handle them with
diligence and sensitivity…. Court cannot act on bold allegations which are
devoid of any proof.’
In Uganda Vs Wilberforce Nadiope & 5 Ors,[17] bail was refused on the
ground that because of the accused’s prominence, and apparent influence in life,
there were high chances that he would use his influence to interfere with
witnesses.
In exercising
discretion whether or not to grant bail, two things must be noted:–
(a)
Courts should not rely on fanciful fears
to deny bail. In Panju Vs Republic,[18] the
Tanzanian High Court held that, ‘If the Courts are simply to act on
allegations, fears, or suspicions, then the sky is the limit and one can
envisage no occasion when bail would be granted whenever such allegations are
made.’
(b)
The Ruparelia
Case held that at this stage of the proceedings, the parties are not
required to prove their allegations beyond reasonable doubt.[19]
It is enough to adduce facts showing reasonable cause for belief.
4.
The
Extent of Court’s Discretion
Bail is a creature of
statute, whose grant or denial must be guided by the statutory provisions. Thus,
even where bail is discretionary, such as under article 23(6)(a), the grant or
denial of it must be exercised judicially. It was stated in the Besigye case,[20]
that ‘Remanding a person in custody is a judicial act and as such the court
should summon its judicial mind to bear on the matter before depriving the
applicant of their liberty.’[21] The
decision must be fair and well within the legal provisions. In short,
discretion is not unfettered.
For instance, where
bail is discretionary, it cannot be taken to mean that a judge can deny it flimsily,
or based on unreasonable considerations, because bail should not be refused mechanically,
simply because the state wants such orders. Declining to grant bail should not
be based on mere allegations. The grounds must be substantiated.[22]
I cannot put it any
better than the Constitutional Court did, in the Foundation for Human Rights Initiatives
case:[23] ‘The
courts have clear guidelines as to how to exercise the discretion to grant or
not to grant bail and the basis on which to be exercised.’ This discretion is not absolute, which explains why the law
makers succinctly included the word “reasonable” in our
legislation.
Therefore, the test is
that of reasonableness – the question being whether a prudent man, being
guided upon such rational considerations of ordinary human conduct, would have
done or abstained from doing what the judge in fact did. For this reason, in
the case of Onyango Obbo & Andrew
Mwenda Vs Uganda,[24] the
High Court overturned the Chief Magistrate’s decision to fix a bail bond of Ug.
Shs. 2,000,000 for each accused, considering it to be excessive and instead
reduced it to Ug. Shs. 200,000 for each one of them.
The express fetters on
discretion included in paragraphs (b) and (c) of article 23(6) are for policy
reasons, and are really ‘just in case’ safeguards, in consideration of our
history that is characterized by violence and wanton abuse of human rights,
which the 1995 Constitution recalls and recognizes in the preamble. Indeed, the
Constitutional Court seems to have been alive to this in the Besigye case,[25] when it stated that,
We, however, feel constrained for the sake of completeness of the exercise, to offer some general observations on the ‘reasonable conditions’ the court should keep in mind when deciding to grant bail or to refuse to grant bail. While considering bail the court would need to balance the constitutional rights of the applicant, the needs of society to be protected from lawlessness and the considerations which flow from people being remanded in prison custody which adversely affects their welfare and that of their families and not least the effect on prison remand conditions if large numbers of unconvicted people are remanded in custody.... The applicant should not be deprived of his/her freedom unreasonably and bail should not be refused merely as a punishment…. The court must consider and give the applicant the full benefit of his/her constitutional rights and freedoms by exercising its discretion judicially.
[Below are videos of suspects in the murder of Late Assistant Inspector General of Police, Andrew Felix Kaweesi,
who were granted bail by the Chief Magistrate's Court of Nakawa, at
Nakawa, on 7 November 2017, after spending the maximum mandatory period
in prison custody, without being committed to the High Court. After
being released on bail, they were waylaid along the way, rearrested by plain-clothed security operatives, and taken back to prison. This is an abuse of their constitutional rights to personal liberty, release on bail, presumption of innocence, among others.]
5. Conclusion
5. Conclusion
The right to bail is a
creature of statute, with clearly set guidelines as to how it should be
exercised and enjoyed, even where discretion is permitted. Where a judge has a
leeway to grant or decline bail (such as under A. 23(6)(a)), the test of
reasonableness restricts the extent to which he / she can go in this.
Under A. 23(6)(b) and
(c) judges have no choice but to grant bail upon such reasonable conditions
deemed fit. To my mind, this results in two levels of release (so to speak)
i.e. release de jure (or release as of right), and release de facto (or actual
/ physical release). The former is an entitlement; the latter is dependent upon
fulfillment of the reasonable conditions imposed by court.
It follows therefore,
that as pillars of justice, courts don’t really have leeway to decide as they
please, in deciding whether to grant or deny bail. Their scope of authority
must be within the confines of the law.
Notes and References
[1] B.J. Odoki, A Guide to Criminal Procedure in Uganda (1990), at 69.
[2] Elizabeth A. Martin (Ed.), A
Dictionary of Law (2003), at 43.
[3] Osborne, A Concise Dictionary (8th Edn), at 39.
[4] Francis J. Ayume, Criminal Procedure and Law in Uganda (1986),
at 54.
[5]
In Joseph Tumushabe Vs Attorney
General, Constitutional Petition No. 6 of 2004 (unreported), Twinomujuni
J.A. said that the basis of the right to bail is to be found in article
28(3)(a) of the constitution.
[6] B.J. Odoki, supra, note 1.
[7] Supra, note 5.
[8]
See for instance, section 75 of the Magistrates
Courts Act, Cap. 16, Laws of Uganda, 2000.
[9] Cap. 23, Laws of Uganda, 2000.
[10] (2008) AHRLR 235.
[11] Ibid., at 245.
[12] [1992-1993] HCB 52.
[13] Constitutional Reference No. 20
of 2005 (unreported).
[14] Ibid., at 8.
[15] Ibid.
[16] High Court Miscellaneous
Application No. 124 of 2008.
[17] Reported in Francis J. Ayume, supra, note 4, at 57.
[18] [1973] E.A 282, 283.
[19] Supra, note 12.
[20] Supra, note 13.
[21] Constitutional Reference No. 20
of 2005, at 12.
[22] Ibid.
[23] Supra, note 10, at 244.
[24] High Court Criminal
Miscellaneous Application No. 145 of 1997.
[25] Supra, note 13, at 10-11.
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