Mandatory bail in Uganda: Understanding article 23(6) of the constitution in the light of its drafting history

• Author: Mujuzi, J.D.
• DOI: https://doi.org/10.47348/FUND/v27/i2a2
• Citation: (2021) 27(2) Fundamina 38
• Pages: 38-66
• Published date: 01 March 2022
• Date: 01 March 2022

38

https://doi.org/10.47348/FUND/v27/i2a2

ARTICLES

MANDATORY BAIL IN UGANDA:

UNDERSTANDING ARTICLE 23(6) OF

THE CONSTITUTION IN THE LIGHT

OF ITS DRAFTING HISTORY

Jamil Ddamulira Mujuzi*

ABSTRACT

Article 23(6)(a) of the Ugandan Constitution of 1995 provides that an

arrested person is entitled to apply to court for discretionary bail. If a

person has been awaiting trial for a specied number of days, article

23(b) and (c) obligates a court to release him/her on mandatory bail.

This contribution analyses more than one hundred judgments of the

Ugandan courts to determine how the question of bail, especially

mandatory bail, has been dealt with judicially. Since article 23(6) does

not expressly provide for the right to bail, the Ugandan Constitutional

Court has come to conicting conclusions on the question of whether

article 23(6) provides for the right to be released on bail; for the right to

apply for bail; or for both the right to apply for bail and to be released

on bail. Relying on the drafting history of article 23(6), the author

argues that the intention of the Constituent Assembly was to provide

for the right of arrested persons to be released on bail. Article 23(6)

also provides for mandatory bail. However, in some decisions, the

* Professor, Faculty of Law, University of the Western Cape. E-mail:

djmujuzi@gmail.com

(2021) 27(2) Fundamina 38

© Juta and Company (Pty) Ltd

MANDATORY BAIL IN UGANDA: UNDERSTANDING ARTICLE 23(6)

39

https://doi.org/10.47348/FUND/v27/i2a2

High Court held that the right to mandatory bail does not fall away the

moment at which a person who qualies for it in terms of article 23(6)

is committed to the High Court for trial. Based on the drafting history

and literal interpretation of article 23(6), it is submitted that the moment

an accused’s trial commences in a subordinate court or when they are

committed to the High Court, their right to mandatory bail falls away.

In addition, the High Court has held that a person who qualies for

mandatory bail is required to prove exceptional circumstances before

they can be released on bail. This contribution argues that no such

burden of proof exists.

Keywords: mandatory bail; Ugandan law; article 23(6) of the Ugandan

Constitution; judicial discretion; Ugandan Constituent Assembly;

non-bailable offence

1 Introduction

Unlike the constitutions of other African countries such as

Ethiopia,1 Kenya2 and Malawi,3 the 1995 Constitution of Uganda

does not expressly provide for the right to bail. Article 23 of the

Ugandan Constitution provides for the general right to personal

liberty of an arrested person, and article 23(6) specically deals

with the issue of bail in the following terms:

(a) [T]he 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;

(b) in the case of an offence which is triable by the High Court as

well as by a subordinate court, if that person has been remanded

in custody in respect of the offence for sixty days before trial, that

person shall be released on bail on such conditions as the court

considers reasonable;

(c) in the case of an offence triable only by the High Court, if that

person has been remanded in custody for one hundred and

eighty days before the case is committed to the High Court, that

person shall be released on bail on such conditions as the court

considers reasonable.

Article 23(6)(a) provides that a person is entitled to apply for bail

and that a court has the discretion whether or not to grant such

1 Article 19(6) of the Constitution of Ethiopia, 1994.

2 Article 49(1)(h) of the Constitution of Kenya, 2010.

3 Article 42(2)(e) of the Constitution of Malawi, 1994.

© Juta and Company (Pty) Ltd