Uganda - Judicial remedies

Under the Ugandan law the only alternative to pre-trial detention is a release on bail. Thus the grounds for a release on bail apply for an alternative to detention.

A person arrested is entitled to apply to the court to be released on the conditions considered reasonable by the court. Indeed, under the Ugandan law the only alternative to pre-trial detention is the release on bail.

Legislation:

• Section 23 subsection 6 of the Constitution

A magistrate’s court – before which a person arrested appears or is brought – is competent to release on bail that person.

A chief magistrate – within the area of jurisdiction – is competent to release on bail a person to whom bail has been refused by a lower court.

The High Court is competent to release on bail a person to whom bail has been refused by the magistrate’s court.

The prosecutor is competent to release a person – with the consent of the court or on the instructions of the Director of Public Prosecutions – as a result to withdraw from the prosecution of that person.

The Uganda Human Rights Commission is competent to release a person when it concludes there has been an infringement of a human right of that person.

Legislation:

• Section 53 of the Constitution
• Section 75 sub.1 of the Magistrates court act
• Section 75 sub.3 of the Magistrates court act
• Section 75 sub.4 of the Magistrates court act
• Section 121 of the Magistrates court act

Release on bail

When a person arrested appears before a magistrate’s court – charged with an offence for which bail may be granted – the court shall inform the person of the right to apply for bail.

A magistrate’s court – before which a person accused appears or is brought – may at any stage in the criminal proceedings release that person on bail if she/he is:

• not charged with a offence specified by the Magistrates court act (the offences excluded from the grant of bail include act of terrorism, cattle rustling, corruption, murder, rape; and treason);
• ready and willing to give bail to the satisfaction of the magistrate.

In deciding to grant or refused the release on bail, the magistrate’s court shall in addition have regard to:

1. the nature, gravity and severity of the punishment of the offence;
2. the antecedents of the person to be released;
3. whether the person to be released has a residence within the area of the court’s jurisdiction;
4. whether the person to be released is likely to interfere with a witness or evidence.

Withdrawal from prosecution

The prosecutor may withdraw the charges of any person:

• in any proceeding before a magistrate’s court;
• at any time before judgment is pronounced;
• with the consent of the court or on the instructions of the Director of Public Prosecutions.

If it is made:

• before the accused person is called upon to make her/his defence, he/she shall be discharged;
• after the accused person is called upon to make her/his defence, he/she shall be acquitted.

Violation of any human right

After investigate and conclude to an infringement of a human right – at its own initiative or on a complaint made by any person or group of persons – the Uganda Human Rights Commission may order the release of a detained or restricted person. On the other hand, any person or authority dissatisfied with that order has a right to appeal to the High Court.

Legislation:

• Section 51 of the Constitution
• Section 52 of the Constitution
• Section 63 of the Constitution
• Section 75 subsection 2 of the Magistrates court act
• Section 77 of the Magistrates court act
• Section 121 of the Magistrates court act

Under the Ugandan law a release refers to “a release on bail” which consists in taking from the person to be release a bond:

• with or without sureties;
• for an amount depending on the circumstances of the case;
• to be at a place, date and time named in it.

• Section 75 of the Magistrates court act

The Ugandan law does not give any information on the statue of the pre-trial detainee during her/his release procedure.

The Uganda Human Rights Commission

Any person – who claims that a human right or a right guaranteed under the Ugandan Constitution has been infringed or threatened – is entitled to apply for redress which may include compensation. The Uganda Human Rights Commission is competent to investigate – at its own initiative or on a complaint made by any person or group of persons – against the violation of any human right.

If that commission concludes that there has been an infringement of a human right, it may order:

• the release of a detained or restricted person;
• payment of compensation;
• any other legal remedy or redress.

Moreover a person or authority dissatisfied with the decision made by the commission has a right to appeal to the High Court.

The High Court

The High Court may award a writ of habeas corpus ad subjiciendum to the person in whose custody the person deprived of liberty is:

• at any time;
• upon complaint being made to the High Court;
• if there are reasonable grounds for the complaint.

On the other hand, any person aggrieved by an order made under section 34 may appeal from the decision to the Court of Appeal within 30 days after the making of the order appealed from whether the order has been made in the exercise of the civil or criminal jurisdiction of the High Court.

Legislation:

• Section 50 of the Constitution
• Section 51 of the Constitution
• Section 52 of the Constitution
• Section 53 subsection 2 of the Constitution
• Section 34 of the Judicature act

The Ugandan Constitution states that a person unlawfully arrested, restricted or detained shall be entitled to compensation from the person or authority responsible. Any person or organisation may bring an action against the violation of a human right or a right guaranteed under the Ugandan Constitution and apply for redress.

Warrant of arrest

• Any irregularity – in the substance or form of a warrant – shall not affect the validity of any proceedings of the case; unless the irregularity appears to deceive or misled the accused the court may – at the request of the accused – adjourn the hearing of the case and remand or admit the accused to bail.

• The statement of the offence shall respect the rules for framing of charges. A charge may be open – to objection in respect of its form or content – if it is not framed in accordance with the specific provisions stated by law.

• The person executing a warrant of arrest shall notify the substance of the warrant to the person suspected (and show the warrant if requested); and then shall bring that person before the court required without unnecessary delay.

Pre-trial detention

A pre-trial detainee has the right:

• to use an order of habeas corpus to report an unlawful detention before a court;
• to complain of detention conditions to courts.

In Opio Mark v Attorney General, the plaintiff was awarded damages for detention in a police cell for 11 days without being produced in court. In Martin Edeku v Attorney General, the plaintiff was award damages for detention beyond 48 hours and torture while in detention.

Release on bail

A magistrate’s court may release a person on bail - except in the case of an offence specified in section 75 sub.2 of the Magistrates courts act. Where bail is not granted, the court shall record the reasons and inform the applicant of the right to apply for bail to a chief magistrate or to the High Court, depending on the circumstances of the case.

• to whom bail has been refused by a lower court, a chief magistrate – within the area of jurisdiction – may direct that:
  • a person be released on bail;
  • the amount required on a bail bond be reduced.

• to whom bail has been refused by the magistrate’s court, the High Court may direct that:
  • a person be released on bail;
  • the amount required for any bail bond be reduced.

• Section 23 subsection 7 of the Constitution
• Section 23 subsection 9 of the Constitution
• Section 50 of the Constitution
• Section 61 of the Magistrates court act
• Section 64 of the Magistrates court act
• Section 75 of the Magistrates courts act
• Section 77 of the Magistrates courts act
• Section 88 of the Magistrates court act
• High Court of Uganda, HCCS 93A/89
• High Court of Uganda, Civil Suit No. 611 of 2006

• Karugonjo-Segawa (R.), Pre-trial Detention in Uganda, 2016, p.15