The Truth About The Constitutional Right To Bail. | The African Exponent.
Over recent months, the law relating to bail in Uganda has been one of those that are catching the interest of the Ugandans. Many Ugandans today are uncertain of what entails bail thus many have been made to either think bail is a mandatory reward by the court upon application or to the contrary; however, many have been surprised to find it otherwise.
In this article, we shall dig deeper into this legal term/concept by looking at its meaning, applicability, access or denial, and any things incidental or consequential to this right.
Bail can be defined as an agreement between the court, accused and sureties, on the other hand, the accused will attend his trial in a manner agreed upon without fail unless agreement to the contrary.
It is important to note that Bail is applied for by the criminal suspects thus plausible to say only people accused of committing cases of criminal nature and are in custody are the ones that apply for bail.
It is governed by two principles that determine its grant/denial by the court. Firstly, the accused is presumed to be innocent until proven guilty or until he/she pleads guilty, making it unfair in certain circumstances to keep that person in prison. This principle roots in article 28(3) of our 1995 constitution.
Secondly, a person may be given bail when he/she is the only one capable of building his defense at trial. Thus, bail is given to enable the accused to defend himself properly. Before the accused person is released, it must be understood that he will be returning for trial till the completion of the trial.
Bail is the right of the accused to apply to the court for a conditional release. It is crucial to appreciate that conditions are attached to the bail. The right of the accused to apply for bail is provided for under article 23(6)(a) of the constitution of the republic of Uganda 1995 as amended, which provides that where a person is arrested in respect of a criminal offense, is entitled to apply to the court to be released on bail, and the court may grant that bail on such conditions as it sees reasonable.
Ugandan courts have been empowered to grant bail to the applicants on terms considered in the view of the court are reasonable. The magistrates’ courts under section 75(1) of magistrates courts Act Cap 16 are allowed to grant bail to persons with offenses triable by the high court, offenses of terrorism, cattle rustling, abuse of office, embezzlement, corruption, and others as provided for under section 75(2) of the Magistrates courts Act Cap 16.
Equally, the high court may, at some stage in the proceedings, release the accused person on bail upon he /she paying the fees demanded by the court under section 14 of the Trial on indictments Act.
The spirit of paying fees to court before granting a person bail is in good faith- to act as one of the guarantees that the accused will come back to court, not disappear, causing a miscarriage of justice. Regard has to be made to the laws above, in which the word “may” implies that granting bail is at the court’s discretion.
For any person to be granted bail, he or she must present sureties. These are people that the accused presents to assure the court that the accused will show up for a trial or, in case the accused disappears, the court will resort to the sureties asking them to present or help the court bring the accused person for trial. This, therefore, has a legal effect to the extent that both the accused and the sureties pay a prescribed amount of money to the court. In court language, this money is called recognizances.
However, the court has the power to charge any amount of money on the accused, this money must be reasonable depending on the offense committed. This operates to prevent excessive charges that would prevent the accused from accessing their right to bail.
The high court is further empowered under section 75 of the magistrate’s courts Act to interfere with this discretion of the lower court if it can be shown that the money was not charged judiciously.
Therefore, courts should impose high monies and conditions to the accused before granting bail concerning the gravity of the offense alleged to have been committed.
In the case of Charles Onyango Obbo and Andrew Mwenda V Uganda (1997)3 KALR, the high court intervened in this matter upon the application by the accused on the grounds of excessive bail money that had been imposed on them. The high court reinstated the money and stated that the condition that each accused should pay UGX 2M was a failure by the lower court to judiciously exercise its desecration.
What are the considerations for bail?
There are several factors courts will consider in granting or denying bail since bail isn’t automatic. The conditions are codified in the trial on indictments Act and the Magistrates Courts Act.
Before a magistrate court, the court relying on section 77 of the Magistrates courts, looks at the nature of the accusation, the gravity of the offense being charged, the severity of the punishment, the antecedents of the applicant, whether the applicant has a fixed abode within courts jurisdiction and whether the applicant is likely to interfere with any of the witnesses of the prosecution.
Courts consider those facts before granting bail under the magistrate’s courts Act Cap 16.
In the high court, however, the court demands the applicant to prove that the exceptional circumstances exist justifying his/her release on bail, that he or she will not abscond when released on bail, grave illness certified by a medical doctor, certificate of no objection signed by the DDP, the infancy or the advanced age of the accused, whether the accused has fixed abode within the jurisdiction of the court and whether the accused has sound sureties within the jurisdiction of the court.
Any person applying for bail before the magistrate or high court must prove those elements. If he or she fails to do so, the court may do away with granting bail.
Another significant aspect of addressing is whether bail is a constitutional right and, therefore, automatic. In the foregoing discussions, I have already hinted that bail is a non-automatic right. However, I intend to throw more vivid light to clarify.
Generally, the grant of bail is discretionary; courts always exercise their powers discretionary and judiciously in granting this bail. Thus, before some courts, people may demand to prove all factors or give the accused a benefit of the doubt in case of failure to prove some factors.
Furthermore, the right to bail is a constitutional right and enjoys constitutional protection because of the protection of personal liberty based on the presumption of innocence.
Thus any applicant to bail cannot be deprived of his or her right unreasonably, bail cannot be refused merely as a punishment as this would conflict with the presumption of innocence, any refusal to grant bail cannot be based on mere allegations, and both High court and subordinate courts have discretionary powers to set bail conditions which they deem reasonable though this must be done with caution.
In the case of Uganda V Col. (RTD) Kizza Besigye, constitutional reference no. 20 of 2005, the constitutional court, while granting bail to the accused, held that the applicant should not be deprived of his /her freedom unreasonably, and bail should not be refused merely as a punishment as this would conflict with the presumption of innocence. The refusal to grant bail should not be based on mere allegations. The grounds must be substantiated. Both the high and subordinate courts have discretionary powers to set bail conditions that they deem reasonable, though this must be done with caution.
In conclusion, it is essential to make it clear that every accused person has a right to apply for bail; however, the court has the discretion to either give the accused bail or deny it. Hence, it’s safe to conclude that bail is a constitutional right that is not automatic; the accused, while applying for bail, should bare in mind that it remains at the discretion of the court to grant the bail or not.