BAIL

Definition of bail:

Originally bail meant security given to court by another person that the accused will attend his trial on the day appointed. But these days, it includes a recognizance entered into by the accused himself conditioning him to appear and failure of which may result of the forfeiture of the recognizance.

LAW APPLICABLE.

• The Constitution of the Republic of Uganda, 1995.
• The Trial on Indictments Act Cap 23
• The Magistrates Court Act Cap 16
• The Penal Code Act Cap 120

According to the case of Lawrence Luzinda V Uganda [1986] HCB 33, the definition of bail was given by justice Okello and he stated that bail is an agreement between the court, the accused and sureties on the other hand that the accused will attend his trial when summoned to do so.

An amount of money or property must be deposited by an accused person with the court in order to be released from custody. This in law is called a recognizance.

According to the late Ayume in his book, criminal procedure in Uganda at pg 54, he said that there are two basic principles underlying bail. The first principle is that the accused is innocent until proved guilty or until he pleads guilty and therefore it would be unfair in certain circumstances to keep him in prison without trial. This is also enshrined in our constitution of 1995 article 28(3) (a).

The second principle underlying bail is that the only person capable of building up his defence at the trial may be the accused himself. If he is released on bail, it must be on the understanding that he will turn up for his trial. There fore there are good reasons why the accused would want to be released on bail. If employed he would likely loose his job or have his business damaged while in prison.

Even section 17(1) of the CPC states that except in cases of a serious nature, like treason, rape and murder, aggravated robbery, etc.. the officer in charge of a police station has powers to release a person who has been arrested without a warrant on bond if that person cannot be produced before a magistrate within twenty four hours. The officer releases the arrested person against that person executing a bond, with or without sureties for a reasonable sum determined, requiring him to appear before a magistrates court at a time and place named therein.

POWERS OF MAGISTRATES COURTS TO GRANT BAIL.

The Magistrates Courts Act Cap 16, section 75 (1) states that a Magistrate Court before which a person appears or is brought charged with any offence other than the offences specified in ss. (2) may, at any stage in the proceedings, release the person on bail, 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 time as is named in the bond.

s. 75(2) of the MCA provides that the offences excluded from the grant of bail under subsection (1) are as follows;

1. an offence triable only by the High Court
2. an offence under the penal code relating to acts of terrorism
3. an offence under the penal code relating to acts of cattle rustling
4. an offence under the firearms act punishable by a sentence of imprisonment of not less than 10 years;
5. abuse of office c/s 87 of the Penal code
6. rape c/s 123 of the Penal code and defilement c/s 129 & 130 of the penal code act;
7. embezzlement;
8. causing financial loss
9. corruption
10. bribery of a member of a public body
11. any other offence in respect of which a magistrates court has no jurisdiction to grant bail.

A chief magistrate has powers under s.75(3) to direct that any person to whom bail has been refused by the lower court within the area of his or her jurisdiction, be released on bail but the offence for which the accused faces must not be one that falls under subsection 2.

POWERS OF THE HIGH COURT TO GRANT BAIL.

The Trial on Indictment Act Cap 23 section 14 provides that the High Court may at any stage of the proceedings release an accused person on bail , that is to say, on taking from him or her a recognizance 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.

Bail is a kind of insurance to guarantee that the accused will appear in Court for his or her trial. Where the accused fails to appear before the Court when ordered to do so, his or her bail money is forfeited.

The High court has powers after releasing an accused person on bail to increase the amount of the bail. This the court will do by issuing a warrant of arrest against the person released on bail directing that he be brought before the court to execute a new bond for an increased amount; and the High court will have powers to commit the person to prison if he or she fails to execute the new bond for an increased amount. (Section 14 (2) of the TIA.

Bail money may be paid up by the accused or someone on his or her behalf. A person released on bail may or may not be asked to put up people as his or her sureties to stand up for him or her before the Court.

A Surety gives security to the Court that the accused will attend his trial on the hearing date fixed by the court. 

Recognisance is a security entered in to before a Court with a condition to perform some act required by Law; on failure to perform that act, the sum is forfeited.

Bail allows an accused person to be temporarily released from custody (usually on condition that the recognizance usually in the form of a sum of money guarantees their attendance at the trial).

Bail money should not be excessively high so that the accused is unable to pay it.

 In Charles Onyango Obbo & Andrew Mwenda v Uganda (1997)5 KALR 25  the High Court was empowered to interfere with the discretion of the lower court while granting bail under s. 75 (4)(a) MCA where it is shown that the discretion was not exercised judiciously. The imposition of a condition that each accused should pay 2,000,000/-, was a failure by the lower court to judiciously exercise its discretion according to Bossa J.

While court should take into account the accuseds ability to pay, while exercising its discretion to grant bail on certain conditions, the court should not impose such tough conditions that bail looks like a punishment to the accused. 

Constitutional provisions on bail:

The Constitution of the Republic of Uganda, 1995 contains provisions on the protection and promotion of fundamental human rights and freedoms. 

Article 20 (1) provides that fundamental rights and freedoms are inherent and not granted by the state. Article 20 (2) provides that all those rights and freedoms must be respected, upheld and promoted by all organs and agencies of Government and by all persons. 

Article 28 (3) thereof provides that every person who is charged with a criminal offence shall be presumed to be innocent until proven guilty or until that person has pleaded guilty is the basis on which the accused person enters into an agreement with the court on his recognisance that he appear and attend his trial whenever summoned to do so. Bail gives the accused person adequate time to prepare his or her defence. ( Article 28 (3) (c)).

Hence Article 23 (6) provides that where a person is arrested in respect of a criminal offence 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. 

Applying the interpretation of article 23(6)(a) as amended by the judges in the case of Uganda V/s Col (Rtd) Dr. Kiiza Besigye, Constitutional Reference No.20 of 2005

Under article 23 (6)(a) of the constitution, where the accused person has been in custody for 60 days before trial for a non capital offence here, the court has no discretion in the matter. It has to grant bail upon such terms as the court deems reasonable.

Article 23(6)(c) of the constitution where the accused person is indicted with capital offences triable by the High Court only. In this case once the accused person has spent 180 days on remand, then the court has to release him/her on automatic bail upon reasonable conditions.

According to Justice Akiiki Kiiza in Florence Byabazaires application for bail, it appears the accused can only benefit from this article, if he is not yet committed to the High Court for trial.

Their Lordships had the following to say in Kiiza Besigyes reference

as regards article 23(6)(c), where the accused has been in custody for 180 days on an offence triable by the High Court only and HAS NOT BEEN COMMITTED to the High Court for trial, that person shall be released on bail on reasonable conditions.

In the situation where the accused is charged with an offence only triable by the High Court, but has not spent the statutory period of 180 days in custody before committal, in this case, the court may refuse to grant bail where the accused fails to show to the satisfaction of the court exceptional circumstances under section 15(3) of the Trial on Indictments (Amendment) Act 9/98 (cap 23). These circumstances are regulatory.

The Lordships went on to state as follows;

it is noteworthy that this is a 1998 Act, which came into force well after the constitution of 1995. its sole purpose was to operationalise article 23 (6) (c) for the accused desirous for applying for release on bail before the expiry of the constitutional time limit of 180 days.

Justice Akiki Kiiza said in Byabazaires application that before the High Court can release an accused on bail, one of the conditions or exceptional circumstances outlined in s. 15(3) of TIA must be satisfied and dismissed the applicants application on the ground that none of the exceptional circumstances had been satisfied. 

CONSIDERATIONS FOR BAIL IN THE MAGISTRATES COURT.

Conditions for the grant of bail:

In as much as the accused person has a constitutional right to apply for bail as enshrined in article 23(6)(a) of the 1995 constitution, the grant of bail is subject to some conditions being fulfilled by the person seeking bail. As per Justice Akiiki Kiiza in the application for bail by Florence Byabazaire Vs. Uganda 284 of 2006, Bail is not an automatic right. Article 23(6)(a) confers discretion upon the court whether to grant bail or not. 

The conditions / considerations for granting bail are set out in both the Trial on Indictments Act Cap 23 for bail applications made in the High Court and the Magistrate Courts Act Cap 16 for applications made to the Magistrates court.

 

Considerations in the Magistrates court;

s. 77 MCA sets down some considerations that the Magistrate Court must have regard for in deciding whether bail should be granted or refused-

1. the nature of the accusation; see Uganda Vs. Mugerwa & Anor [1975] HCB 218.
2. the gravity of the offence charged and the severity of the punishment which conviction might entail; (it is more likely that bail will be refused where the offence is so grave as to warrant a severe penalty).
3. the antecedents of the applicant so far as they are known;( it would be a mockery of the judicial process and a miscarriage of justice if bail were to be granted to a person who has a staggering record of previous convictions to his name, which is an indication of his likelihood of committing further crimes if released on bail).
4. whether the applicant has a fixed abode within the area of the courts jurisdiction; (Sudhir Ruparelia Vs. Uganda [1992-1993] HCB 52, (the fact that the accused has a kibanja, and that he has sixteen wives and or twenty four children, may be an indication that he is unlikely to abscond. But this by itself cannot be a ground for releasing a person on bail- Livingstone Mukasa & 5 others vs Uganda [1976] HCB 117.
5. 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. (In the case of Uganda Vs. Wilberforce Nadiope and 5 others, bail was refused on the ground that because of the accused persons prominence and apparent influence in life, there was every likelihood of his using his influence to interfere with witnesses.

Considerations for Bail in the High Court.

s. 15 (1) TIA provides that Court may refuse to grant bail where a person accused of an offence specified in ss (2) if he or she does not prove to the satisfaction of the Court 

that exceptional circumstances exist justifying his or her release on bail; and 

that he or she will not abscond when released on bail.

In S. 15 (3) exceptional circumstances mean 

(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. (Capt. Wilberforce Serunkuma Vs. Uganda [1995] I KALR 32

The applicant was charged with aggravated robbery and had been on remand for eight months. He brought an application for bail basing on he exceptional circumstances of grave illness. In his affidavit supporting the application the applicant deponed that he was an AIDS Victim and needed constant care which he could not get while in prision. He brought documents to prove that he had been attending AIDS clinics like TASO. It was held that where satisfactory evidence of AIDS is adduced, a court may consider the circumstances of the case and in the absence of a certificate from the medical board hold that AIDS is grave illness, and to justify grant of bail, the applicant has to prove to the satisfaction of the court that he was incapable of getting adequate treatment whilst in custody. In this case, all the applicant had were documents from TASO indicating that he was an AIDS victim and no report was made by any doctor who treated him at Luzira or mbuya military hospital to show that he could get adequate treatment whilst in custody.

A certificate of no objection signed by the Director of Public Prosecutions, or

The infancy or advanced age of the accused. (Mutyaba Semu V Uganda the accused was a 60 year old and suffered from diabetes and he brought an application for bail on the ground that he was of advanced age. It was held that 60 years per se was not advanced age but this coupled with the fact that the accused suffered from diabetes, a disease that required a good diet which could not be provided by prison authorities he would be granted bail.

s. 15 (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 place of abode within the jurisdiction of the Court or is ordinarily resident outside Uganda.

( Christopher John Boehlke v Uganda Misc. Application 332 of 2006)- no fixed place of abode and a non resident. Look at the conditions considered in this case.

Dennis Obua Otima v Uganda H C Crim. App. No 18 of 2005.

The applicant was charged with embezzlement and causing financial loss applied for bail on the assertion that he was of advanced age and that he is such a person entitled to be released on bail. Justice Remmy Kasule looked at the considerations in light of the other factors which court uses to deny bail. 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. 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. Article 23 (6) (a).

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 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.

Is Bail a constitutional right and therefore automatic?

Generally the grant of bail is discretionary. Court must always exercise its discretion judiciously and always give the accused the benefit of doubt. Magistrates and Judges have interpreted the provisions regarding the conditions and considerations in different ways with some stating that they must be fulfilled before a person can be granted bail, while others holding that it is a constitutional right.

The right to bail is a constitutional protection of the right to personal liberty clearly based on the presumption of innocence which must thus not be denied lightly. An accused person 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.

The later view is the one that has been propagated by judges in most of the recent judgments as seen hereunder;

Read the most recent decisions on bail in the Republic of Uganda.

1. Dennis Obua Otima v Uganda H C Crim. App. No 18 of 2005.
2. Emma Katto v Uganda  H.C. Crim. Miscellaneous Application No. 10 of 2005
3.  Mpuuma K. Leonard Vs. Uganda Misc Appl No 325 of 2006
4.  Florence Byabazaire vs. Uganda Misc Appl. No 284 of 2006
5.  Uganda Vs. Col(Rtd) Dr. Kiiza Besigye, Constitutional Reference No 20 of 2005
6.  Christopher John Boehlke Vs. Uganda Misc. Appl No 332 of 2006
7.  Dr. Aggrey Kiyingi Vs. Uganda Misc Appln No 41 of 2005
8.  Charles Onyango Obbo & Andrew Mwenda Vs. Uganda [1997] v KALR 25
9.  Mutyaba Semu Vs. Uganda [1997] v KALR 143.