The spirit behind the inclusion of the right to bail within our laws has always been to ensure that an accused person attends court while coming from home, without the necessity of being detained in custody during the period of trial. After all, some of these accusations don’t end up in a conviction, yet a suspect would have been held in prison for days, months, or years for an offense that they did not commit or for an offense without sufficient evidence.
Without bail being granted freely by court due to stringent conditions or political interference, prisons end up being congested, yet these suspects can, upon satisfying certain conditions, stand trial while coming from home. Currently, the government is incurring a huge financial burden of feeding, accommodating, providing security, treatment, and transporting suspects to and from court, costs which could be avoided by granting bail to those who qualify for it with [few] exceptions.
I appreciate the apathy created by the remarks of the President of Uganda, who castigated the judiciary for being too lenient on the people he called criminals. That notwithstanding, the judiciary needs to be reminded that they have a duty to serve Ugandans and not the President, who has maintained that the law should be applied selectively such that certain categories of people are not entitled to bail. Maybe that explains why security organs usually re-arrest suspects who have been granted bail.
Before the dust on the subject could settle, the Chief Justice invoked what he referred to as his powers under Article 133 (1) (b) of the Constitution and exploited gaps in Article 23(6) (c) to water down the well-entrenched subject of bail. In so doing, the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 were issued as Practice Directions on 16th June, 2022, allegedly to guide the courts of judicature on the grant of bail.
Before these guidelines were issued, courts were going about their duties with the plain understanding of the law on bail; there was no lacuna that necessitated guidelines beyond what the law provided. If there were any gaps in the law, the procedures are well laid down and do not necessarily allow the judiciary to bend the rules just to massage the sentiments of the President on the subject of bail, whose parameters have been clearly laid out for all to see.
Now that it is the Chief Justice who issued the guidelines, which Judge in the Constitutional Court is willing to overturn the overzealous bail guidelines? The judges are between a rock and a hard place, yet these days it is hard to seek bail in the courts of law without making reference to these guidelines. In fact, these guidelines have become the cornerstone upon which bail applications have been denied. A case in point is the recent decision in the bail application of Dr. Kiiza Besigye and Obed Lutale, who were denied under very controversial circumstances.
Fortunately, City Lawyer Steven Kalali has filed a petition in the Constitutional Court seeking to nullify the impugned bail guidelines and has given reasons why he believes the guidelines were processed in bad faith to stampede upon the deep-rooted provisions on the grant of bail. I agree with him that the guidelines are an overreach, blanket in nature, and disguised as guides, yet in reality they are an attempt to amend the law on bail to the detriment of several prisoners in several prisons in Uganda who have failed to secure bail.
I now understand why the framers of our constitution insisted on the doctrine of separation of powers, such that each arm of government does its work and another checks for loopholes. We now have a dilemma where Judges of the Court of Appeal, constituted as a Constitutional Court, must sit and scrutinize these bail guidelines issued by their boss for use by the courts of judicature and, where possible, have them wholly or partially discarded.
I also know for a fact that Kalali has made several attempts to fix his petition, but all [have been] in vain. The Chief Inspector of Courts is on record for having written to the Court of Appeal Administrators asking them to pick interest in the complaint and have the stalled petition cause-listed again, [also] in vain. It is surprising that newer petitions, like the one on the Anti-homosexuality Act, were filed later but were heard expeditiously, yet Kalali’s petition, with a bearing on human rights, has been left out without a justifiable explanation.
A deeper scrutiny of these guidelines shows they were intended to appease President Museveni, who was threatening to use Parliament to scrap the law on bail. Maybe the decision of the Chief Justice was a blessing in disguise because since then, the President has not said much about bail. Be that as it may, these guidelines have clipped the hands of judicial officers, [directing them] not to the law but to the guidelines. It remains my considered view that the bail guidelines were an attempt to amend the law on the grant of bail, having realized that Parliament was divided on the subject.
These days when one goes to Court, Judicial Officers are obligated to rely more on the bail guidelines and not the Constitution, the Trial and Indictment Act, the Criminal Procedure Code Act, and the Magistrates Courts Act, among others, yet these guidelines were merely passed to reinforce existing laws and not to operate as the wheel upon which other existing laws roll.
It was explained at the launch that the Practice Directions were drafted to ensure that bail decision-making complies with the provisions of the Constitution, to give further effect to the existing legal provisions on bail, to promote uniformity and consistency by courts when considering bail applications, to streamline and address disparities in the handling of bail applications, and to promote the balancing of the rights of accused persons with the public interest and the rights of complainants.
This last argument alone defeats the very definition of bail. If indeed bail is an agreement between the court and the accused, guaranteed by his sureties, why would a complainant be consulted? What does the court expect the complainant to say when asked if the accused should be released? These are some of the areas where the guidelines were crafted to simply make it impossible for one to get bail in courts of judicature.
It has been argued severally that where a person is charged with or convicted of a criminal offense, he or she may apply to court to be released on bail, and the court may grant that person bail on such conditions as the court considers reasonable. For instance, how reasonable [was] the recent decision in the Eron Kiza application where he was granted a cash bail of 20 million? How many cows would an ordinary Ugandan sell in order to afford such exorbitant amounts?
This issue of bail was interpreted by the Constitutional Court in Uganda Vs Dr. Kiiza Besigye. The court held that, Under Article 23(6) (a), every accused person is entitled to apply for bail. The word “entitled” creates a ‘right’ to apply for bail and not a right to be granted bail.1 The word ‘may’ creates discretion for the court to grant or not to grant bail. The context in which the word ‘may’ is used does not suggest otherwise.
I personally agree that bail is not an automatic right; the discretion is upon the court to determine whether to grant or not to grant bail. However, the use of the word “discretion” has given judicial officers an open cheque to do as they please, even after the bail guidelines were issued. This is evidenced by the cases in Magistrate courts where [those accused of] misdemeanors have been ordered to pay colossal sums of money to be released on bail, and yet for felonies triable by the High Court, judges have ordered accused persons to pay reasonable sums for release on bail.
It is not clear why in some minor cases bail is very colossal, yet in graver offenses it is affordable. It is probable that such discretion is exercised injudiciously. Who knows, maybe these decisions are partly influenced by these bail guidelines that I believe were crafted in bad faith and usurped the powers of Parliament that is mandated to make or amend laws.
The writer, Rogers Wadada, is a commentator on political, legal, and social issues. wadroger@yahoo.ca
