The Black’s Law Dictionary (9th Edition) defines bail as a security such as cash or a bond; especially, security required by a court for the release of a prisoner who must appear in court at a future time. Bail is the obtaining the release of (oneself or another) by providing security for a future appearance in court.
In his book "Guide to Criminal Procedure in Uganda," Benjamin Odoki defines bail as an agreement or recognizance between the court and the accused (as well as any sureties, if any). This agreement stipulates that the accused will be required to pay a specified sum of money, as determined by the court if they do not appear for their trial on a designated date.
Literally, bail is a legal venue that allows an individual accused of a criminal offence to be temporarily released from custody under specific conditions and guarantees their appearance in court for trial.
In Uganda, courts under the adjudication of judges hold the discretion to grant bail to an accused person at any stage of the proceedings. The court's decision to grant bail is typically based on the presumption that the accused will adhere to their trial obligations (post-trial) such as respecting court appearances and on the presumption of their innocence as enshrined in Article 28(3)(a) of the Constitution of the Republic of Uganda (pre-trial).
Bail is granted to accused persons awaiting trial at any stage of the proceedings whose application can be made by the accused themselves, their advocate orally or by written application.
Bail is hinged on the constitutional provision, Article 23(6) of the Constitution of Uganda which is to the effect that;
“Where a person is arrested in respect to a criminal offence, the person is entitled to apply to court to be released on bail and the court may grant that person bail on such conditions as the court considers reasonable.”
Types of Bail
Uganda’s legal system mainly encompasses two forms of bail.
a. Mandatory Bail: Mandatory bail is a form of bail that dictates when bail must be granted to an accused individual under certain circumstances. This type of bail is governed by Article 23(6)(c) of the Constitution. If an accused person is held in custody before trial for an offence that falls under the jurisdiction of the High Court or other lower courts, they can be granted bail after the lapse of 60 days. If an accused person is held in custody before trial for an offence that falls under the jurisdiction of the High Court or other lower courts, they can be granted bail after the lapse of 60 days. For offences triable by only the High Court, bail can be granted if the accused has been remanded in custody for 180 days before committal. In the case of Uganda V Col. (rtd) Dr Kizza Besigye, It was stated that once the conditions under Article 23(6)(c) are met, the court is stripped of its power to exercise its discretion and hence the accused is entitled to be granted bail.
b. Discretionary Bail: While the Constitution guarantees the right to bail, it is important to note that the granting of bail rests within the court's discretion. Article 23(6)(a) entitles an accused person to apply for bail, however, it is important to note that this right is not absolute.
This position was clarified by Justice Mwangusya Eldad in Foundation for Human Rights Initiatives v Attorney General in which he held that the right to bail under Article 23(6)(a) is not an automatic right. Bail is dependent on the judges’ discretion who weigh based on a case-by-case basis whether they should grant bail. However, according to the case of Col (Rtd) Kizza Besigye V Uganda, Justice Musalu Musene noted that discretion in bail matters must be exercised judiciously without malice, ill will, or ulterior motives.
Additionally, when considering the grant for bail, the court also considers the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 No. 5 which reinforces the principles enshrined in the Constitution for granting bail such as the presumption of innocence, right to liberty, balance of the accused’s rights and interest of justice among others.
Conditions for Granting or Refusing Bail in the Magistrate Courts
Granting bail in the Magistrates Courts is governed by Sections 75 and 77 of the Magistrates Court Act.
Section 77 of the Magistrates Courts Act outlines various factors that the Magistrate's Court should take into account when deciding whether to grant or deny bail:
a) Gravity of the Offense: The seriousness of the offence and the potential punishment upon conviction play a crucial role in bail decisions. In cases where the alleged crime is of a severe nature and carries a substantial penalty, bail may be more likely to be denied.
b) Potential Witness or Evidence Interference: The court also evaluates whether the accused is likely to interfere with witnesses or tamper with evidence presented in support of the charge. This was demonstrated in the case of Uganda Vs. Wilberforce Nadiope and 5 others, where bail was denied due to the accused's perceived influence and potential interference with witnesses.
c) Antecedents of the Applicant: Antecedents refer to things that existed earlier. The applicant's prior criminal history, if any, is a critical consideration. Granting bail to an individual with a substantial record of previous convictions might undermine the judicial process and pose a risk of further criminal activity if released.
d) Fixed Abode within the Court's Jurisdiction: Another factor is whether the applicant has a fixed residence within the court's jurisdiction. Having a permanent residence within the court's jurisdiction indicates ties to the local community. While it may not be the sole basis for granting bail, it can provide some assurance of the accused's likelihood to return for trial and may influence the court's decision, as evidenced in Sudhir Ruparelia Vs. Uganda [1992-1993] HCB 52 whereby, the accused’s possession of land and home in the jurisdiction of court was a strong factor in granting the accused bail.
e) Nature of the Accusation: The type of allegation made against the accused is a significant factor. This includes the specifics of the charge and the circumstances surrounding it, as demonstrated in the case of Uganda Vs. Mugerwa & Anor [1975] HCB 218.
These considerations help ensure that bail decisions in the Magistrate's Court are made with due regard to the nature of the offence, the accused's history, and the potential impact on the legal process and the safety of the community.
Conditions for Granting or Refusing Bail in the High Court
According to Section 14 of the Trial on Indictments Act, bail is a recognized right that is available to the accused persons before the High Court. Bail in the High Court can be obtained with or without sureties and upon payment of a recognizance (cash or non-cash) assuring the court of their appearance on their next date of trial.
According to Section 15(1) of the Trial on Indictments Act, to be granted bail in the High Court, the accused must be able to show that exceptional circumstances exist and that they will not abscond (skip) bail. The High Court, which handles more serious cases, considers additional factors when granting bail, such as those mentioned below;
Grave illness
When an accused person is suffering from a severe medical condition, it can be a compelling reason for granting bail. In such cases, the court recognizes the accused's need for medical treatment that may not be adequately provided in a prison or detention facility. However, according to Section 15(3)(a) of the Trial on Indictments Act, grave illness must be approved by a certified prison medical expert.
Hence, in the case of Orena John Mackay v Uganda, The accused, having shown that he had heart complications approved by the prison's medical officer, was entitled to bail by the court on grounds of grave illness.
Certificate of no objection to bail signed by the DPP
The Director of Public Prosecutions (DPP) plays a significant role in the bail process. If the DPP does not object to the accused's release on bail, it indicates that the prosecution does not consider the accused to be a significant flight risk or a threat to public safety.
Infancy or advanced age of the accused
The age of the accused can be a relevant consideration when granting bail. If the accused is very young or elderly, the court may take into account their vulnerability and special needs. For example, young children may require a more supportive environment, while elderly individuals may need specific accommodations for their well-being and care.
Section 4 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, provides for the definition of advanced age as that above 60 years of age. As a result, in the case of Niwamanya v Uganda, the court rejected the fact that the accused was of advanced age despite proving that he was 51 years of age at the time.
Whether the accused is likely to abscond bail
The court assesses the likelihood of the accused fleeing and not appearing for trial. Factors such as the accused's place of abode, previous instances of absconding, and the seriousness of the charges all contribute to this assessment. If the court believes there is a high risk of the accused not showing up for trial, it may be less inclined to grant bail.
In the case of Obey & 2 Ors v Uganda, Justice Margaret Tibulya noted that the likelihood of the accused absconding bail is based on an interplay of several factors such as the gravity of the offence, likely resultant penalty of the offence, if the accused has a known address in the jurisdiction of court and quality of sureties advanced before the court. Per Section 15(4) of the Trial on Indictments Act, to assess the likelihood of absconding bail by the accused, the court considers the following factors;
Sureties
Sureties are individuals who take on the legal responsibility of ensuring that the accused appears in court at the appointed time. They vouch for the accused's reliability and may need to provide their identification documents, and a financial guarantee to secure the accused's compliance with bail conditions. The presence of dependable sureties is essential as it reduces the risk of the accused absconding bail and strengthens the court's confidence in releasing the accused.
In light of sureties in bail matters, Justice Stephen Mubiru in Abindi & Anor v Uganda had this to say. That ‘An applicant should not be incarcerated if he has a fixed place of abode, has sound sureties capable of guaranteeing that he will comply with the conditions of his or her bail and is willing to abide by all other conditions set by the court.‘ Hence highlighting the importance of sound sureties in influencing the accused's entitlement to bail by the court.
Permanent place of abode in the jurisdiction of the court
Having a stable and permanent residence within the jurisdiction of the court can be a favorable factor for granting bail. It suggests that the accused has strong ties to the community, making it less likely that they will abscond.
In the case of Ahamad Ssebuwufu v Uganda, the accused having advanced an LC 1 letter of introduction and a copy of the certificate of title of his land, (in addition to sound sureties) was substantial proof that the accused had a permanent place of abode not likely to skip trial and hence entitled to bail.
Previous record of failing to comply with bail conditions
If the accused has a history of not adhering to bail conditions in previous legal matters, it may raise concerns about their willingness to comply with bail terms. This history can affect the court's decision regarding whether to grant bail in the current case.
In the case of Aganyira v Uganda, although the court was convinced that the accused had no previous record of absconding bail and no charges were pending against them, the nature and gravity of the offence–robbery made the court deny the accused bail.
Consideration of other charges pending against the accused
If the accused is facing multiple charges in different cases, the court may take into account the totality of these charges when deciding on bail. The existence of other pending charges can influence the court's perception of the accused's overall legal situation and may affect the bail decision.
Hence, although Section 15(1)(a) and Section 15(3) of the Trial on Indictments Act, introduce exceptional circumstances that must be proved by the accused before they are granted bail, the position has since changed as per the case of SP Baguma v Uganda (Miscellaneous Application No. 231 of 2016) and proving exceptional circumstances is no longer mandatory. The court considers aspects such as the nature and gravity of the offense, the likelihood of absconding bail, the stage of proceedings, and the risk of interfering with witnesses.
The test for this principle to apply was set out by Justice Musa Ssekaana in Tumwekwase Owen V Uganda HCT-05-CR-MA 57/2019 wherein he stated that the burden is upon the applicant to present facts, beyond the ordinary considerations for bail, upon which court can exercise its discretion to grant bail. However, according to the case of Florence Byabazaire vs. Uganda In instances of a grave offence, the accused is not absolved of the duty to prove the exceptional circumstances under Section 15(1) of the TIA.
Denial of Bail
The judges can deny bail if there is a risk that the accused may abscond, tamper with witnesses, commit further offences, or pose a threat to the community. If bail is denied, the accused has the right to appeal to a higher court for a review of the decision.
Bail Amount
The court may require the accused to pay a non-cash or cash deposit the amount of which depends on the discretion of the court considering the amount is reasonable in the circumstances to compel the accused to appear in court on the given date.
Duration of Bail
Bail is typically granted until the conclusion of the trial, but it can be revoked if the accused violates any bail conditions or if new circumstances arise. According to Uganda v. Lawrence Luzinda [1986] H.C.B 33, it was stated that bail can be revoked or cancelled by the court if the accused breaches the conditions set out by the court or imposed by law concerning bail.
In conclusion, Uganda’s legal framework for bail recognizes the fundamental rights of the accused, including the presumption of innocence and the right to liberty as enshrined in the Constitution. The type of bail, whether mandatory or discretionary, depends on specific circumstances, and courts exercise their discretion when granting it. Various factors, such as the nature of the charges, the likelihood of absconding, and potential interference with witnesses, influence bail decisions. The accused must demonstrate exceptional circumstances to secure bail, though recent cases have demonstrated flexibility in this regard. Denial of bail is justified if the accused poses a risk to public safety or the legal process. Overall, Uganda's bail system strives to balance the rights of the accused with the interests of justice and the community.
REFERENCES
STATUTES
Constitution of the Republic of Uganda 1995
Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 No. 5
Magistrates Court Act
Trial on Indictments Act
CASES
Foundation for Human Rights Initiatives v Attorney General (Constitutional Appeal No. 3 of 2009) [2018] UGSC 46 (26 October 2018).
Florence Byabazaire vs. Uganda High Court Miscellaneous Application Number 284 of 2006.
Foundation for Human Rights Initiatives v Attorney Genera
Tumwekwase Owen V Uganda HCT-05-CR-MA 57/2019
SP Baguma v Uganda (Miscellaneous Application No. 231 of 2016)
Aganyira v Uganda (Criminal Miscellaneous Application No. 71 of 2013) [2013] UGHCCRD 31 (29 August 2013)
Abindi & Anor v Uganda (Miscellaneous Criminal Application No. 20 of 2016) [2017] UGHCCRD 49 (4 April 2017).
Sudhir Ruparelia Vs. Uganda [1992-1993] HCB 52