Whereas according to Dorothy N. Kabugo in A Citizens Handbook on the Law Governing Bail in Uganda provides for the major laws relating to bail in Uganda, which are
1. The 1995 Constitution of Uganda (as amended),
2. The Magistrates Court Act (M.C.A.), Cap 16 that’s specifically under Section 75(4)(b) which is to the effect that,
“The High Court may in any case where an accused person is appearing before a magistrate’s court –(b) where the case is one mentioned in subsection (2), direct that the accused person be released on bail.’
3. The Trial on Indictment Act (T.I.A), Cap 23, specifically under Section 14(1) which is to the effect that,
“The High Court may at any stage in the proceedings release the accused person on bail; -----.”
4. The Police Act, Cap 303.
5. The Uganda People’s Defense Forces Act (UPDF Act), Act No. 7 of 2005.
6. The Criminal Procedure Code Act, Cap 116.
Therefore, according to the 1995 Constitution, article 28 (3) (a) which is to the effect that,
‘Every person who is charged with a criminal offence shall. Be presumed to be innocent until proved guilty or until that person has pleaded guilty;’
Thus, recognizing the common law presumption of innocence until proven guilty. This also means that a person should only lose his or her freedom after he or she has been convicted.
This also means that in granting bail, there are two fundamental aspects that underlie the grant of bail, namely,
1. The presumption that the accused is innocent until proved guilty or upon he/she pleading guilty or upon he/she pleading not guilty. And,
2. The profound belief that the accused is in the best position to build up his or her defense at the trial. According to Francis J. Ayume in his book Criminal Procedure and Law in Uganda
As also noted in the case of Oliobe & 2 Ors v Uganda where court observed that,
‘The decision whether or not to grant bail is of fundamental importance in the process of prosecution and trial of a criminal case. The results of such a decision can have far-reaching consequences for the liberty of the accused, the safety of victims of crime and the public in general interested in the integrity of the criminal justice system…The applicable principle is that of upholding the liberty of the individual, while simultaneously protecting the administration of justice…’
This also means that bail can only be granted where the arrested person has been arraigned or charged before court as observed in the case of Kananura & 3 Ors v Uganda even though it has been observed that bail is not automatic as seen in DPP Vs Col. Kizza Besigye
Procedure for the grant of Bail
The procedure for the grant of bail in the magistrate’s court it is that applications to the magistrate’s court may be oral or in writing as stated in the Judicature (Criminal Procedure)(Application) Rules , And the conditions for the grant of bail are stated under Section 77(2) of the Magistrates Courts Act which are;
1. that the Magistrate Court must have regard for in deciding whether bail should be granted or refused- courts observe the nature of the accusation as seen in Uganda Vs. Mugerwa & Anor where court observed that, the gravity of the offence charged and the severity of the punishment which conviction might entail, this basically means that if the applicant has committed a crime so severe, it is more likely that bail will be rejected, the criminal record of the applicant for bail is also very important,
2. Also, whether the applicant has a fixed abode within the area of the court’s jurisdiction, as seen in the case of Sudhir Ruparelia Vs. Uganda in that case court observed that, the fact that the accused had a kibanja, and that he had sixteen wives and or twenty four children, may be an indication that he is unlikely to abscond. Even though itself cannot be a ground for releasing a person on bail as stated in Livingstone Mukasa & 5 others vs Uganda.
3. Also, whether the applicant is likely to interfere with any of the witnesses for the prosecution or any of the evidence to be tendered in support of the charge, as seen in the case of Uganda Vs. Wilberforce Nadiope and 5 others, bail was refused on the ground that because of the accused person’s prominence and apparent influence in life, there was every likelihood of his using his influence to interfere with witnesses.
However it is worth considering that courts must not simply act on allegations, fears or suspicions and thus in the case of Hon. Godi Akbar v Uganda, it was noted that there would be no reason to deny the applicant bail merely on speculative fears that he might harass or intimidate some witnesses and bail was granted. And similarly, in the case of Panju v Republic it was noted that if courts were 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.
4. Lastly, where the police are pursuing enquiries about the accused’s possible involvement in other offences, bail may not be granted.
The Procedure for the grant if Bail in High court.
Whereas in high court, procedure for bail is that applications to the high court are by motion on notice with an affidavit accompanying the application procedure for grant of bail is provided for;
Under Section 15 (1) of the Trial on Indictments Act which is to the effect that court may refuse to grant bail where a person accused of an offence specified in Section 2 does not prove to the satisfaction of the Court –
(a) That exceptional circumstances exist justifying his or her release on bail; and
(b) That he or she will not abscond when released on bail.
Whereas Section 15 (3) of the TIA gives the exceptional circumstances to mean 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. As seen in the case of Capt. Wilberforce Serunkuma Vs. Uganda
Conclusively, since the grant of bail is upon the discretion of the court which has the power to deny the grant of bail if the applicant does not prove to the satisfaction of the court that exceptional circumstances exist justifying his or her release on bail as seen in the case of Foundation for Human Rights Initiatives vs Attorney General where court observed that,
‘about other restrictions on courts, in particular to require the accused to show that he will not abscond and proof of exceptional circumstances, in my view, the said requirements are justified. Besides they are not mandatory. Both High Court and subordinate courts are still free to exercise their discretion judicially and to impose reasonable conditions on the applicant.’
Whereas Section 15 (4) of the TIA provides that in considering whether or not the accused is likely to abscond, the court may take into account the following factors-
1. That the accused has a fixed place of abode within the jurisdiction of the court or is ordinarily resident outside Uganda. As seen in the case of Kanyamunyu & 2 Ors v Uganda where court rejected their bail application because of the absence of proof that they each had a fixed place of abode, which increased chances that they would abscond trial.
What about in the Court of appeal and Bail Pending Appeal.
When it comes to appeal, an appellant may at any time before the determination of his or her appeal, apply for bail to the appellate court, and the appellate court may grant the bail as provided for under As per Section 205 of The Magistrates Courts Act, & Section 132 (4) of The Trial on Indictments Act.
Except in the cases where the appellant has been sentence to death. As seen in the case of Dennis Obua Otima v Uganda court took a different twist on the grant/denial of bail, therein Justice Remmy Kasule looked at the considerations in light of the other factors which court uses to deny bail.
1. Firstly is ‘whether the accused is likely to interfere with the prosecution evidence. Where it is found to be the case, the court would exercise its discretion by refusing bail.
2. Secondly is to prevent a perception of the justice system as being a mockery of justice.’ This discretion to refuse bail is vested by the constitution under Article 23 (6) (a).
The general rule was that the appellate court has discretion to grant bail pending appeal and each case is tried on its merits as seen in the case of Chemiswa Vs Uganda and just like in High court and The Magistrates’ court, also the concept under bail pending appeal here, the applicant must prove exceptional circumstances as to why they should be released on bail pending appeal, as observed in Arinda Patel V Uganda court looked into the character of the applicant and established ;
1. Whether he/she is a first time offender or not,
2. Whether the offence which the applicant is convicted of involved personal violence,
3. The appeal is not frivolous and has possibility of success, and
4. The possibility of the substantial delay in the determination of the appeal, and
5. Whether the applicant has complied with the conditions granted before his conviction and during the pendency of his appeal. As was seen in Kabuga Stephen V Uganda where court observed that the above guidelines are not exhaustive and they need not all be present at the same time.
The development of Bail Pending Appeal
The recent decision by Supreme Court Justice Esther Kisaakye in the case of Magombe v Uganda (Miscellaneous Criminal Application-2019/11) suggests that the whole concept of courts granting bail pending appeal is unknown to the human rights regime in the Constitution of Uganda.
Which I will reproduce in verbatim for the purpose of this document,
She concludes that,
“An analysis of the constitutional provisions discussed above left me in no doubt that Arvind Patel(Supra), was not correctly decided and the whole concept of courts granting bail pending appeal is unknown to the 1995 Constitution human rights regime. No article of the Constitution talks about or supports the proposition that the presumption of innocence subsists after the conviction of a person with a criminal offence on the contrary; article 28(3) is explicit that the presumption of innocence is extinguished upon conviction.
Secondly, nowhere does the Constitution provide for the right of a convicted person to apply for bail as I noted earlier, Article 23(6) (a) which provides for the right to apply for bail only refers to a person arrested in respect of a criminal offence and not to a person already convicted of a criminal offence.
I have found no Constitutional or legal basis to support the ruling in Arvind Patel (Supra) and other rulings that have since followed it”
The above position then creates a lacuna in the law regarding bail pending appeal.
The question being whether courts in Uganda still have jurisdiction to grant bail-pending appeal?
As already stated that the right to bail is provided for under Article 23(6)(a) of the Constitution however according to the Learned JSC Esther Kisaakye, this right does not extend to those who have been convicted.
But, what about those who have been wrongfully convicted? Does not that strip them off the presumption of a person’s innocence until proven guilty or the until the accused has admitted his guilty.
The Merriam Webster Dictionary gives 2 definitions of the word until,
1. until preposition-used as a function word to indicate continuance (as of an action or condition) to a specified time.
2. until conjunction- up to the time that : up to such time as.
This implies that since it’s a continuance of an action irrespective of the fact that the subordinate courts have already convicted the accused, the presumption of his innocence until proven guilty should also stretch to his right for the grant of bail pending appeal.
In His article in the Daily Monitor Saturday October 31 2020 learned counsel Kusaasira notes that,
‘Whatever conclusion one may draw (in regard to whether or not bail pending appeal is a human right recognised under the Constitution), the analysis of the constitutional or legal basis of the right to bail pending appeal cannot be complete without considering the provisions of Section 40 of the Criminal Procedure Code Act, Cap 116 (the “CPCA”) and Section 132(4) of the Trial on Indictment Act, Cap 23 (the “TIA”). in Magombe v Uganda, the learned Justice did not consider these provisions.
Section 40 of the CPCA provides: “40. Admission of appellant to bail and custody pending appeal.
(2)The appellate court may, if it sees fit, admit an appellant to bail pending the determination of his or her appeal; but when a magistrate’s court refuses to release a person on bail, that person may apply for bail to the appellate court.”
Clearly, the above legal provision permits the Magistrate Court or the High Court to grant bail pending appeal against a conviction and/or sentence by a Magistrate Court.
Section 132(4) of the TIA provides:“132. Appeals to the Court of Appeal from the High Court.
(4)Except in a case where the appellant has been sentenced to death, a judge of the High Court or the Court of Appeal may, in his or its discretion, in any case in which an appeal to the Court of Appeal is lodged under this section, grant bail, pending the hearing and determination of the appeal.
Accordingly, the Court of Appeal has jurisdiction to entertain and grant applications for bail pending the determination of an appeal against the decision of the High Court.
Obviously, neither the CPCA nor the TIA makes reference to the jurisdiction of the Supreme Court to grant bail pending appeal. This is due to the fact that the Supreme Court was established in 1995 by Article 130 of the Constitution, yet the CPCA was enacted in 1951 and the TIA was enacted in 1971.
Nevertheless, section 132(2) of the TIA applies to the Supreme Court by virtue of section 5(11) of the Judicature Act, Cap 13 (the “Judicature Act”), which provides as follows:
“5. Appeals to the Supreme Court in criminal matters.
(11)Section 132(4) and (5) of the Trial on Indictments Act shall, with necessary modifications, apply to the Supreme Court.”
Suffice to note that Article 132(2) of the Constitution provides that an appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law.
Section 5 of the Judicature Act was enacted by Parliament to prescribe how the Supreme Court will exercise the jurisdiction vested in it, under Article 132(2) of the Constitution, when dealing with appeals in criminal matters. Thus, one can strongly argue that Article 132(2) of the Constitution cannot be read in isolation of Section 5 of the Judicature Act. Reading Article 132(2) of the Constitution together with Section 5(11) of the Judicature Act would lead to a conclusion that the Supreme Court may, while exercising the jurisdiction vested in it under the Constitution, grant bail to the appellant, pending the determination of his or her appeal.
Rule 6(2)(a) of the Supreme Court Rules, which the learned Justice declared to be contrary to the Constitution, and therefore null and void, was enacted with approval of Parliament to operationalize Section 5(11) of the Judicature Act.”
Therefore in conclusion the law governing bail is generally discretionary, that’s for judges to decide on a case to case basis, and the since the right to bail is a constitutional based on the presumption of innocence which most indeed be denied lightly, hence, an accused charged with a criminal offence must be informed of his right to bail. It is not a constitutional right to automatic bail but a right to apply for bail.
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