The right to bail pending trial in Uganda
| Author | Mujuzi, J.D. |
| DOI | https://doi.org/10.47348/SACJ/v34/i3a3 |
| Published date | 23 February 2022 |
| Date | 23 February 2022 |
| Citation | (2021) 34 SACJ 461 |
| Pages | 461-481 |
The right to bail pending
trial in Uganda
JAMIL DDAMULIRA MUJUZI*
ABSTRACT
Article 23(6)(a) of the Constitution of Uganda (1995) states that an
arrested person is ‘entitled ’ to apply to court for bail (discretionar y bail).
Articles 23(b) and (c) require a court to release on bail a pers on who has
been awaiting trial i n custody for a specied num ber of days (mandatory
bail). Jurisprudence of Uganda n courts on bail pe nding trial shows that
courts have dealt with t wo main issues: the right to ba il or to apply for
bail; and the conditions for gr anting of discretion ary bail pend ing trial. The
Supreme Court has held that an acc used has a right to apply for bail. In this
article, the author arg ues that the draf ting history of A rticle 23(6)(a) shows
that an accused has a rig ht to bail (as opposed to just apply for bail). The
author also demonstrates how cour ts have been inconsistent i n many cases
when dealing with the condit ions for granting of discretionary bai l pending
trial. It is argued f urther that since the Ugandan government is i ncreasingly
re-arresti ng opposition politicians who have been g ranted bail by the high
court, Ugandan cour ts may explore the possibil ity of granting ant icipatory
bail. It is also argued t hat the draft ing history of A rticles 129(d) and 210
of the Constitution shows that cou rts mart ial are court s of judicature and
subordinate to the high cour t which means, inter a lia, that the high cour t
has the power to release an accused on bai l should the general court martia l
refuse to release him /her on bail.
1 Introduction
Article 23(6) of the Constitution of Uganda provides that after arrest,
(a) 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;
(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.
* LLB (Makerere) LLM (Preto ria) LLM (Free State) LLD (Wester n Cape), Professor of
Law, Faculty of Law, University of the Western C ape.
https://doi.org/10.47348/SACJ/v34/i3a3
461
(2021) 34 SACJ 461
© Juta and Company (Pty) Ltd
Article 23(6) provides for two types of bail pendi ng trial: discretionar y
bail – under Art icle 23(6)(a); and mandatory bail – under Article 23(6)(b)
and (c). Since the coming into force of the Constitution (1995), Ugandan
courts have developed rich jurisprudence not only on bail pend ing trial
(both discretionar y and mandatory) but also on bail pending appeal.
However, it is beyond the scope of this article to discuss mandatory
bail and bail pending appeal as they have been discussed in detail
recently.2 Article 23(6)(a) provides that a person is entitled to apply for
bail and a court has the discretion whether or not to release the person
on bail. However, if a person has been in detention for a prescribed
period, he/she must be released on bail (mandatory bail). In Aganyir a
v Uganda,3 the high court dened bailas:
[A]n agreement or recognizance between the accused (and sureties, if any)
and the COURT that the accused will pay a certain sum of money xed by
the court should he/she fail to attend the trial on a certain date. The court as
a contracting party usually sets down terms and conditions, which accused
persons and sureties have to comply with.4
The right to bail is one of the few rights that were not restr icted when
the Ugandan government imposed a lockdown during the Covid-19
pandemic.5 In Foundation for Human Rights Initiatives v Attorney
General
6 the Constitut ional Court held that:
The objective and effect of bail are well settled. The main reason for
granting bail to any accused person is to ensure that he appears to stand
trial without the necessity of being detained in custody in the meantime …
[U]nder Article28(3) of the Constitution, an accused person charged with a
criminal offence is presumed innocent until proved guilty or pleads guilty.
If an accused person is remanded in custody but subsequently acquitted
[he/she] may have suffered gross injustice. Be that as it may, bail is not
automatic. Its effect is merely to release the accused from physical custody
while [he/she] remains under the jurisdiction of the law and is bound to
appear at the appointed place and time to answer the charge or charges
against him.7
2 See JD Mujuzi ‘Mand atory bail in Uga nda: Understand ing Article 23 (6) of
the Constitution i n the light of its dr afting his tory’ (2021) 27(1) Fundamina
(forthcoming); J D Mujuzi ‘Bail pendi ng appeal in Uganda’ (2021) 34 SACJ
(forthcoming).
3 Aganyira v Ugan da (Crim Misc Applic No 0 071 of 2013) [2013] UGHCCRD 31
(29August 2013).
4 Supra (n2) 5. For another denition of b ail, see Guideline 4 o f ‘The Constit ution
(Bail Guidelines for C ourts of Judicature) (Practice) Direc tions (draft of 3 May 2021)’.
5 Chambers of the C hief Justice ‘Circular on Covid-19 (Coronavirus), CJ/C-7’, 19 March
2020, para 4.
6 Foundation for Human Rights Initiativ es v Attorne y General (C ons tit
Petition-2006/20) [200 8] AHRLR 235 UgCC 1 (26 March 200 8).
7 Supra (n5) at para [38].
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https://doi.org/10.47348/SACJ/v34/i3a3
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