Bail in Uganda: A right or a privilege?

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) 11ff.

[4] Around 6$

[5] Uganda Prisons Service, Monthly Newsletter, (Deceember 2022)

[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

Development of regional approaches: The regional hubs

This article is part of ASF’s 2022 annual report.

In order to develop an action that best promotes its mandate and is consistent with the specific needs of the national contexts it is involved in, ASF relies on solid analyses of the issues in the countries where it operates. Being anchored in the realities of the countries is essential in order to develop contextualised expertise, to build strategic partnerships at the local level and to be able to put in place relevant and qualitative actions for the local populations.

Furthermore, the issues we address do not stop at borders and often have transnational dimensions.

To meet these requirements, ASF has been developing regional approaches for several years through its regional hubs in the Euro-Mediterranean region and in East Africa, with offices in Tunis and Kampala respectively.

These regional offices guarantee the necessary proximity to the beneficiaries of the actions and local partners in order to strengthen ASF’s presence in the region. They promote the development of their actions by building on existing expertise and networks.

The creation of these hubs is also part of the organisation’s decentralisation process. One of their functions is to strengthen the strategic dialogue between the different offices and to ensure that the perspective, experiences and expertise developed at the regional level feed into ASF’s global approaches.

The choice to prioritise the creation of these two regional offices was guided by factors both internal and external to the organisation:

  • The choice to strengthen our presence in regions where we have demonstrated our added value, our ability to mobilise relevant stakeholders and our relationships with national and international stakeholders
  • The presence of an ASF office with significant experience of the regional context
  • The identification of transnational issues

Main functions of the hubs

1) Strategic development and guidance

The hubs provide support and guidance to existing missions, and the implementation of actions that are developed in other countries of the region or at the regional level.

2) Expertise and Knowledge

The hubs produce relevant and contextualised expertise based on data collected in the field and linked to the organisation’s advocacy strategies.     

3) International advocacy and networking

The hubs provide support to networks, which will thus be able to benefit from appropriate assistance in the development, monitoring and evaluation of influence strategies. While national issues remain the responsibility of the country offices, the hub is more specifically interested in supporting networks at the international level in order to influence the development of public policies.

4) Capacity building

This involves capacity building for country teams in the region, in areas that are functional to the development of intervention strategies and on the basis of a soft peer-reinforcement approach.

This strategy of strengthening regional dynamics has proven its worth in the first year of setting up regional offices:

  • Regional projects have already been launched in East Africa and in the Euro-Med region.
  • This has enabled us to initiate actions at the level of regional bodies, such as the African Court on Human and Peoples’ Rights in Arusha.
  • It allows us to develop actions in countries where we do not have a permanent team, such as Tanzania or Kenya.
  • Rationalisation and pooling of human resources through the creation of regional functions, covering actions in several countries

ASF’s annual report is available!

The Avocats Sans Frontières team is delighted to present its latest annual report.

We have come a long way since ASF was founded in 1992 by a group of Belgian lawyers. Over these 30 years, hundreds of people have contributed to making the organisation what it is today: a militant organisation active in a dozen countries, working to promote access to justice and the rule of law based on human rights, in close collaboration with local actors.

These thirty years of action, the local roots we have developed and the links we have forged with human rights defenders from the four corners of the world give us a great deal of strength and confidence as we look to the future and continue to deploy impactful action in the service of populations in vulnerable situations (women, children, the LGBTQI+ community, ethnic minorities, people in detention, people in migration, etc.).

But the challenges are many. All over the world, civil society organisations and human rights defenders are faced with worrying developments and trends: the rise of authoritarianism, the shrinking of civic space, growing public distrust of institutions, heightened social tensions, etc.

Defenders of human rights and access to justice have to work in contexts that are increasingly hostile to them. The very notions of human rights and the rule of law are being called into question. Activists, lawyers and journalists working to defend the fundamental rights of populations in vulnerable situations are increasingly systematically targeted by repressive policies.

Every page of this report bears witness to the vigour of the flame that drives those who are committed to upholding human rights at the very heart of our societies, at the risk and peril of their own freedom. This report is a tribute to each and every one of them.

Annual report 2022

Thomas Kwoyelo trial: Prosecution moves close to wind-up presenting its witness

ASF working with victims

“Any further delay with this trial is a dark spot on our part as Judiciary” – ICD

The Trial of Thomas Kwoyelo resumed on 17th April 2023 and is scheduled to run up to the end of the month at the International Crimes Division of the High Court (ICD) sitting at Gulu High Court in Gulu City, Northern Uganda.

Having commenced the trial on 24th September 2018, the court had its first prosecution witnesses testify in March 2019 and since then trial sessions have been held periodically between Kampala and Gulu. The most recent was in Gulu between 28th November and 15th December 2022 where 14 prosecution witnesses were prepared and presented to substantiate the grounds against the accused, bringing the total number to 48 prosecution witnesses so far.

In an interview with a member of the prosecution team he confirmed that the case has close to 120 witnesses but that not all of these will be presented, to avoid repetitive evidence.

“We are reviewing available evidence and picking the best among the pool. Some Witnesses are aging and losing memory while others have since passed on, so from what is available, we evaluate and pick the best from the stock”

Counsel Charles Kamuli- Prosecution team member

It is hoped that within these two weeks, Prosecution will be able to close presenting its witnesses. This will pave way for the defense team to begin presenting their own witnesses in the next sessions later in the quarter pending availability of funds. Later there will be a victims’ session where the victims’ counsel will present their own witnesses.

Thomas Kwoyelo, captured in 2009 by the Uganda People’s Defense Forces, is arguably one of the longest-accused persons on pre-trial detention in the history of International Criminal Justice. To ensure that the case progresses, the ICD set a timeframe of holding quarterly sessions, but there has been a lack of consistency in practice. However, the court believes it can conclude the case within one and a half years, provided that funds continue to be released quarterly as planned.  “This delay is a dark spot on our part as the judiciary in as far as justice is concerned”, said the Head of the ICD who is also an alternate judge in this case.  “The victims are so concerned, and so is the accused; he is not being tried as he should, having been in incarceration since 2009. Now that the government has committed resources, we are all committed to pushing the case forward” the Head of the ICD remarked.

The defense team though, in a separate interview, held a different viewpoint on the timeframe within which this trial will be concluded given the uniqueness of the trial and the pace at which things are moving forward:

“Given the uniqueness of the case, a witness needs ample time to narrate their story and share their account, you can’t tell how long that story is, they need time. It takes time to call upon a witness to recollect that painful ordeal that happened 20 years ago and often times this leads to a psychological breakdown during the thought process. In such situations, the court cannot proceed, it has to be adjourned to give the witness time to get composed and put themselves together.”

Counsel Evans Ochieng, a Defense team member

The trial is proceeding at a very slow pace due to the insufficient financial resources that are required for a trial process that involves so many parties. The trial has four Judges, four prosecutors, four defense attorneys, two victim counsels, and a huge team of court staff including the IT team setting up the video links, the Court Assessors, the Interpretation team, court clerks, the rapporteurs, the documentation team, media team and so forth.

“It’s hard to project when the case will end especially in situations like ours where you have money this quarter and not sure whether you will have money next quarter.”

Counsel Evans Ochieng- Defense team member

Under the principle of positive complementarity[1],  national institutions like the International Crimes Division of the High Court in Uganda should have the necessary capabilities to effectively and efficiently handle investigations and prosecution of international crimes under the Rome Statute[2]. To this end, ASF has provided support to the ICD to develop and evolve its capacity. For instance, through the provision of technical support for the development of the ICD’s Rules of Procedure and Evidence and the guidelines on Registry Management. ASF has also engaged in capacity-building of the court, providing support to victims’ lawyers and broadly enhancing victims’ participation. To ensure the sustainability of these efforts, ASF, with its partner ICTJ, embarked on a study that led to the development of a Judicial Bench Book, which is an authoritative reference resource on the practice and procedure for the criminal prosecution of international crimes. ASF’s support has in many ways helped the relatively young institution that is the High Court to operate in line with the required international standards, thereby enhancing its capacity to deliver on its mandate as well as its international credibility and recognition.

Being victim-centered is at the core of ASF’s transitional justice strategy and this has informed the nature of our interventions. Working collaboratively with grassroots organizations such as Foundation for Justice and Development Initiative (FJDI), Gulu Women Economic Development and Globalization (GWED-G), and the Victims Counsels, we have conducted outreach where information regarding the trial has been disseminated and feedback from the victim communities sought. Radio talk shows have also been organized where court officials and other stakeholders discuss pertinent issues arising from the trial and where victim community members can call in and have their say on the state of affairs surrounding the trial and the possible next steps. This has been powerful in ensuring that victims are informed and aware of what is happening but also in ensuring that their views inform court officials on what victims think and perceive of the whole process.

ASF welcomes the government of Uganda’s adoption of the National Transitional Justice Policy, a comprehensive and key framework designed to address past human rights violations with the aim of promoting justice, accountability and reconciliation which are key pillars in achieving sustainable peace.  However, there is a need to expedite the enactment of the legislative instruments to operationalize the policy and ensure that victims achieve justice.

In the meantime, victims grapple with real life-threatening issues that need urgent and immediate attention. For instance, some victims returned with bullets in their bodies that necessitate surgical and rehabilitative processes to have these removed from their bodies. Others were victims of sexual violence who need medical support to address their reproductive and other enduring consequences of the violence as well as psychosocial support to manage their trauma.

There are also challenges regarding the both social and familial integration of children born in captivity and the reintegration of their mothers who suffer from stigmatization within the communities. To extent sometimes that the victims and their children have been forced to leave their communities and try to settle in urban centers and towns. Faced with this stigmatization and difficult living circumstances, some survivors have committed suicide or harbor suicidal thoughts.

In the absence of any interim support to address the long-lasting impacts of the violence and human rights abuses they have suffered, victims are concerned that by the time delayed justice is served, many will have already died and that justice will therefore not serve its intended purpose.

[1] Fidelma Donlon (2011), The International Criminal Court and Complementarity From Theory to Practice, pp. 920 – 954,Cambridge University Press.

[2] This principle envisions a coordinated approach to the prosecution of crimes by the International Criminal Court and national authorities. This points to a two-tiered policy to combat Impunity where ICC initiates prosecution against those who bear the greatest responsibility for crimes under Investigation and on the other hand encourages national trials where possible for the lower-ranking perpetrators. Such a principle would encourage the use and admission of information and evidence collected by the ICC before National Courts like the International Crimes Division of the High Court in Uganda. Article 93(10) (a) of the Rome Statute equally encourages such cooperation

This policy brief was written by Jimmy Wamimbi with valuable input from Faridah Kyomuhangi, Simon Mallet, Irene Winnie Anying, and Valérie Arnould.

Press release – An appeal for Enhanced Due Diligence on oil and gas development operations in Uganda

Protecting constitutional rights of pre-trial detainees through access to justice in Uganda

ASF’s team in Uganda has just published a baseline study on ‘Protecting constitutional rights of pre-trial detainees through access to justice in Uganda’. It is available on our website and will be presented during an ExPEERience Talk on 2nd March 2023. You can sign up to follow the presentation online.

The (over)use of pre-trial detention in Uganda

Although detention pending trial should be the exception rather than the rule, the use of pre-trial detention is highly prevalent in Uganda. In March 2022, over half of the prison population was awaiting trial, one of the main contributing factors to a prison occupancy rate of over 300%.

Prolonged pre-trial detention does not just lead to overcrowding, it also makes one more vulnerable to torture, ill-treatment and coercion to make a false confession. For a suspect or accused person, spending a significant amount of time awaiting trial in prison undermines its chance to benefit from a fair trial as well as its presumption of innocence.

There are safeguards in place in Ugandan law, including in the Constitution, to ensure that pre-trial detention is used sparingly and with respect for an accused person’s rights and freedoms. However, these provisions are often violated, whether due to abuse of power by officials, slow investigations, corruption, case backlog, ignorance of the law, and/or lack of adequate legal representation.

In 2021, ASF conducted a baseline study to gather much-needed evidence and data about the situation of pre-trial detainees in Ugandan prisons. The objective of the study was to provide an overview of the socio-economic profile of detainees, patterns of detention and arrest, and experiences of pre-trial detention.

The socio-economic profile of pre-trial detainees: What the baseline study tells us

In Uganda as in other countries around the world, pre-trial detention disproportionately affects the underprivileged. The majority of suspects and inmates surveyed (77%) had either no qualification or had only completed primary school. Only 8% were engaged in formal employment around the time of their arrest, while the rest were dependent on the informal sector or peasantry.

These dynamics have significant implications for the criminal justice system. Individuals from economically and socially disadvantaged backgrounds are more likely to be involved in low-level petty offences as a way to make ends meet, in which case pre-trial detention may both be unnecessary and further reinforce their marginalization.

They are also likely to be less knowledgeable about their rights, encounter more challenges in accessing legal aid, and not have the resources and support networks to recover from a long period in pre-trial detention. Those with additional vulnerabilities, such as refugees, women and children also experience added challenges.

Constitutional and procedural safeguards

The Constitution of Uganda provides that a suspect detained at a police station should be produced before a magistrate within 48 hours. This is to allow for judicial control of the charge and necessity of detention. In the baseline study conducted by ASF, only 7% of suspects found in police custody had been there for less than 48 hours. The majority of suspects (63%) also did not know of their right to apply for police bond, which means that few were able to advocate for themselves.

In Uganga, the Constitution provides that pre-trial detention should not go beyond 60 days for non-capital offences, and 180 days for capital offences. In practice, 59% of inmates surveyed in prisons had spent over 180 days on remand. Several prisoners had been awaiting trial for several years, including a 21 year-old female prisoner who had been on remand for six years of her life. The recent passing of new bail guidelines is likely to worsen the situation.

Access to legal aid: a necessary but insufficient condition for the rights of detainees to be upheld

Of all the inmates surveyed, only 19% had accessed legal services during their time in detention. Free and accessible legal aid services are key in order to ensure that inmates are made aware of their rights and supported in moving their case forward or accessing bail. During the launch of the baseline study report, stakeholders from criminal justice institutions and legal aid service providers called for the National Legal Aid Bill to be passed into law so that access to legal aid is guaranteed to indigent or people in vulnerable situations.

However, more systemic changes are crucial in order to ensure that the use of pre-trial detention is limited to those cases for which it is necessary, and used in accordance with procedural and constitutional safeguards. From the point of arrest, all stakeholders in the criminal justice systems as well as the government of Uganda have a role to play in ensuring that individual rights and freedoms are respected, that the criminal justice system does not unduly criminalise the disadvantaged and that violations are duly identified, investigated and remedied.

Full policy recommendations are available in the baseline study report.

ASF’s work in pre-trial detention in Uganda

Since 2019, ASF and its partner the Legal Aid Service Providers Network (LASPNET) in Uganda, with funding from the Austrian Development Cooperation (ADC), have been working to protect and promote constitutional and procedural rights in the administration of justice in Uganda. As part of this, free legal aid services have been provided in eight district to over 4000 pre-trial detainees. ASF also conducts sensitisation sessions to empower communities to enforce their rights, as well as local and national advocacy efforts for positive reform.

Report – Protecting constitutional and procedural rights of pre-trial detainees through access to justice in Uganda

Consolidating discussions on transitional justice: the debate on access to land rights in the Acholi sub-region

Uganda land

This article was originally published in the Annual Report 2021 of Avocats Sans Frontières.

In recent years, numerous and continued conflicts about land use and ownership in the Acholi subregion have led to strong debate among the Ugandan population. But the discussions surrounding this issue have too often omitted to include it in the broader debate around transitional justice.

These land conflicts mostly find their source in the aftermath of the war that took place between the Ugandan Government and the rebels of the Lord’s Resistance Army (LRA) from 1987 until the 2006 ceasefire. During that period, the rebels of the LRA targeted civilians and waged attacks on schools, public places and communities. This led to massive displacement of local populations into refugee camps called Internally Displaced People’s camps (IDPs). The extensive displacement and the death of elders during that period has divested local communities of land ownerships.

Access to land plays a crucial role in recovering from the effects of such conflicts but there is a true need to establish a linkage between land rights and the promotion of transitional justice objectives such as restitution. The 2019 Uganda National Transitional Justice Policy acknowledges the need to mitigate land conflicts in conflict-affected communities either individually or collectively.

ASF undertook research on access to land rights and transitional justice in Northern Uganda to establish the nature of justice paths undertaken by people in the Acholi sub-region in reclaiming their land rights. Using a purely qualitative methodology, the research established that victims of land conflicts use either statutory or traditional mechanisms to pursue justice but that they are unable to address land disputes satisfactorily and amicably. In many cases, access to justice and judicial outcomes are dependent on the individual’s social status. Women and youth find it harder to obtain satisfactory remedies due to their higher degree of vulnerability.

ASF advocates for a comprehensive land restitution strategy to be included in the broader transitional justice process. This includes the pillars of transitional justice processes: acknowledgment of the wrong suffered, truth-telling, investigation, and documentation. It is crucial to intensify efforts to ensure that land rights are fully respected, enforced, and restored in the return communities. In addition, ASF calls for the Government of Uganda to redefine processes of land acquisition for multinational companies and investors in ways that are transparent, accountable, and involve local communities to reduce mistrust and help build confidence in ongoing development initiatives in the region.

Empowering Civil Society for Inclusive Development

  • Objective: To strengthen civil society’s engagement of decision makers on human rights and Rule of Law issues
  • Main activities:
    • Capacity-enhancement: on among others; evidence gathering, reporting, advocacy 
    • Public Legal Education and Sensitization among communities as well as local and national civil society
    • Evidence gathering/data collection: Monitoring of Human rights violations by civil society
    • Data dissemination and communication adapted to the needs of different target groups; webinars, leaflets, social media and group chats.
    • Multi-stakeholder dialogues: enhancing participation of different stakeholder groups linkages at different levels
    • Advocacy: identifying pathways of change and developing and pursuing policy recommendations
    • Legal aid: Legal advice and representation
    • Strategic litigation: use of legal action in view of broad social or policy objectives.
  • Expected results:
    • Grass root organizations and CSOs improve their methods of engagement with duty-bearers
    • CSOs and LASPs are able to accompany local populations in seeking remedy
    • CSOs influence national and regional decision-makers to adopt positive reforms
  • Project partners: Civic Response on Environment and Development (CRED), The Africa Centre for Energy and Mineral Policy (ACEMP)
  • Geographical areas of implementation: 
    • Eastern Uganda, with a primary focus on Karamoja in the districts of Moroto, Amudat and Nakapiripirit.
    • Western Uganda, with a primary focus on the Albertine and Rwenzori sub-region.
  • Funding: Belgium Development Cooperation (DGD)
  • Budget: 1,607,474.54 EUR
  • Duration: 5 years (January 2022 – December 2026)