Bail[1] has increasingly become a contentious issue not only in Uganda but globally. Legal and social debates on the balance between public safety and the right to personal liberty rage on in public and political spaces. Those debates have been at the center of attention in Uganda as many have called for reform of the legislative framework regulating the access to bail and as efforts are made in that sense.
Lawmakers, civil society members, judiciary members and other actors have expressed many different and sometimes contradictory concerns about the current state of applications for bail and its grant in Uganda.
The president has openly protested some court decisions granting bail to murder suspects, arguing that this amounts to provocation of the public[2], and the increase in capital crimes has led some to advocate for more stringent conditions for the grant of bail. Cases of exorbitant fines and unaffordable cash bails imposed on applicants for bail by courts are argued to be discriminatory because only the rich can afford to pay them. Overall concerns have been raised on the inconsistencies in the exercise of court discretions while considering conditions for bail.
Another dimension of the argument regards the cost of bail for the community. Maintaining people in detention has a price and people detained cannot support their family and contribute to the economy.[3] The overall cost of maintaining a detainee in Uganda to the treasury is 22,966 UGX per prisoner per day[4]. As of December 2022, the Ugandan prisons counted 74,414 prisoners of whom 35743 were remand Prisoners.[5] This brings the yearly cost of prisoners’ maintenance to 1,708,991,924 UGX[6], of which 820,873,738, more than half goes to pre-trial detainees daily.
In December 2021, the Chief Justice issued proposed bail guidelines[7]. These were intended to complement the existing legal provisions on bail and promote uniformity and consistency by courts when considering bail applications. One of the goals of the proposed guidelines was to address the abuses in the use of pre-trial detention and the resulting prison overcrowding.
In February 2022, ASF and its partners submitted a memorandum to the Judiciary rules committee highlighting some of the key issues that hinder and impact negatively the treatment of pre-trial detainees. Some key recommendations were not considered. For example, the recommendation on Mandatory release of offenders on bail who have been in detention for 60 or 180 days for petty and capital offenders respectively without trial.
The Constitutional (Bail Guidelines for Courts of judicature) (Practice) Directions, 2022 were however passed and launched by the Chief justice on 27th July 2022. Some clauses of the guidelines have since consequentially amended the Constitutional provision on bail especially clauses providing for mandatory bail for capital offences. Previously, the Chief Magistrates had jurisdiction to grant mandatory bail to capital offenders before their cases were committed to the High Court. With the coming into force of the bail guidelines, jurisdiction to grant mandatory bail to capital offenders is now limited to only the High Court[8]. This has further hindered access to justice for pre-trial detainees especially those charged with capital cases. Lately, release of capital offenders on mandatory bail has become challenging because those who manage to apply to the High court for release on mandatory bail get committed for trial before their files are called by the High Court. In areas where there is no High Court, prisoners have lost hope and have resorted to plead guilty under plea bargain as an alternative. The congestion levels have worsened in some prisons due to an increased number of remand prisoners.
In Uganda, ASF in partnership with the Legal Aid Service Providers Network (LASPNET) is implementing a three-year project titled ‘Protecting procedural and constitutional rights through access to justice’, funded by the Austrian Development Cooperation (ADC).
Under the project, ASF has enlisted paralegals and advocates to monitor violations of procedural and constitutional rights and provide legal assistance in eight districts in Uganda. Since the start of the project, more than 4,000 cases of violation of pre-trial detention rights were registered; of these 2,047 were found in prisons. Over two thirds of detainees reached in prisons were reported to have exceeded the mandatory bail period which is a violation of their right to bail and a continued violation of procedural rights. Also, ASF undertook a baseline study on the socio-economic profile of detainees and the grounds for their incarceration. One of the key findings from the study was that 30% of the detainees did not know of the right to apply for bail and thus had overstayed on remand.
In an effort to pursue its advocacy efforts in favor of pre-trial detainees’ rights, ASF in partnership with Ssekaana Associated Advocates and Consultants and an individual petitioner, Stephen Kalali, have petitioned the Constitutional Court to challenge some provisions of the Bail Guidelines[9]. It is hoped that this will shade more light on the anomalies in the law and practice on bail.
[1] Bail is the temporary release from custody by a court of law of an accused after providing security for future appearance in court on such conditions as the court considers reasonable.
[2] Katusiime Ian. “Museveni’s Stand on Bail.” The Independent 4th October 2021.
[3] Open Society Foundations, The Socioeconomic Impact of Pretrial Detention (2011) https://www.justiceinitiative.org/uploads/84baf76d-0764-42db-9ddd-0106dbc5c400/socioeconomic-impact-pretrial-detention-02012011.pdf 11ff.
[4] Around 6$
[5] Uganda Prisons Service, Monthly Newsletter, (Deceember 2022) https://www.prisons.go.ug/sites/default/files/UGANDA%20PRISONS%20SERVICE%20Monthly%20Newsletter%20September%202021%20Edition.pdf.
[6] Around 450.000$
[7] “The Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2021”
[8] (Para 10(3) and 11(3) of the constitution (bail guidelines for courts of judicature) (practice) directions, 2022
[9] in the case of Kalali Stephen Vs Attorney General Constitutional Petition No 32of 2022
