Celebrating the Love of Friends in a Loving World

Celebrating the Love of Friends in a Loving World
Red Roses for You, My Sweet Friends ... Total Love.

My Sweet Friends

My sweet friends,

We grow closer to each other;

When we interact together and share ideas;

The common faith that we share,

Binds our hearts in one accord.

For sweet friendships last a life time,

When built on mutual respect, humility and understanding;

Throughout each different season,

We find we are one in life.

Sweet friends are there through times of grief;

And times when hope is gone;

Always there with encouragement;

So we can carry on.

I thank the Lord for you,

My true and faithful friends;

To fondly speak with you, whether we agree or not,

On this, our beloved blog;

For sweet friends will stay, no matter what;

Giving support.

Together, our hearts and minds truly unite;

With the amazing love of sweet friends.

In the spirit of true friendship,

Best wishes, my sweet friends;

May the Lord bless you abundantly.

I remain, yours truly,

B.B. Bakampa.

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Monday, July 11, 2011

Analysing Judicial Discretion In The Application Of Bail Law In Uganda

By Bakampa Brian Baryaguma
[Dip. Law (First Class)–LDC.; Cert. PELD-NALI-K; LLB Student–Mak]
bsaint3@gmail.com; www.bbbakampa.blogspot.com

1. Introduction.

No single legislative enactment in Uganda defines the term “bail”. Fortunately however, several scholars have provided useful definitions. B.J. Odoki defined bail as “…an agreement or recognisance between the accused (and his sureties, if any), and the court that the accused will pay a certain sum of money fixed by the court should he fail to appear to attend his trial on a certain date [1].”

The Oxford Dictionary of Law defines bail as “The release by the police, magistrates' court, or Crown Court of a person held in legal custody while awaiting trial or appealing against a criminal conviction [2].”

Osborne’s Concise Law Dictionary defines it as “The release from the custody of officers of the law or the court of an accused or convicted person, who undertakes to subsequently surrender to custody [3].”

According to Francis J. Ayume, two basic ideas underlie bail [4]:-
(i) the presumption that the accused is innocent until proved guilty or upon he/she pleading guilty [5]; and
(ii) the profound belief that the accused is in the best position to build up his/her defence at the trial.

The object of bail is to ensure that the accused person appears to answer the charge against him/her without being detained in prison on remand pending his/her trial, effectively temporarily releasing him/her from court or prison/police custody [6].

2. The legal basis of bail.

Bail is a constitutional right guaranteed under article 23(6) of the 1995 constitution and it states as follows:-
Where a person is arrested in respect of a criminal offence—
(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.

In the case of Attorney General Vs Joseph Tumushabe [7], Mulenga J.S.C. (as he then was), stated that “…the genesis of the right to bail is the protection of the right to liberty.”

Article 23(6) is beefed up inter alia [8] by sections 14 and 15 of The Trial On Indictments Act [9]. Section 14 concerns release of accused persons on bail. Sub-section (1) thereof grants discretionary powers to the High Court to …at any stage in the proceedings release the accused person on bail, that is to say, on taking from him or her a recognisance consisting of a bond, with or without sureties, for such an amount as is reasonable in the circumstances of the case, to appear before the court on such a date and at such a time as is named in the bond.

Section 15 provides for refusal to grant bail. Under sub-section (1), the High Court may refuse to grant bail to an accused person upon his/her failure to prove to court’s satisfaction:-
(a) that exceptional circumstances exist justifying his or her release on bail; and
(b) that he or she will not abscond when released on bail.

Under sub-section (3), it is enacted that:-
In this section, “exceptional circumstances” means any of the following—
(a) grave illness certified by a medical officer of the prison or other institution or place where the accused is detained as being incapable of adequate medical treatment while the accused is in custody;
(b) a certificate of no objection signed by the Director of Public Prosecutions; or
(c) the infancy or advanced age of the accused.

Sub-section 4 provides that:-
In considering whether or not the accused is likely to abscond, the court may take into account the following factors—
(a) whether the accused has a fixed abode within the jurisdiction of the court or is ordinarily resident outside Uganda;
(b) whether the accused has sound securities within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail;
(c) whether the accused has on a previous occasion when released on bail failed to comply with the conditions of his or her bail; and
(d) whether there are other charges pending against the accused.

The constitutionality of these provisions was challenged in the case of Foundation for Human Rights Initiatives v Attorney General [10], wherein it argued that they are inconsistent with article 23(6) among others. In rejecting this contention, the Constitutional Court held that they only set guidelines not directions and are therefore justified. In their Lordships’ view, “Rights, be they fundamental rights or not, must be enjoyed within the confines of the law [11].”

3. The interpretation and application of bail provisions by the courts.

The perennial question has been, whether bail is an automatic right; in other words, whether it is discretionary or mandatory.

In the case of S. Ruparelia Vs Uganda [12], the High Court held that the granting of bail is not automatic: court has to exercise discretion whether to grant bail or not.

This question again arose in the case of Uganda (D.P.P) Vs Col. (Rtd) Dr. Kizza Besigye [13], where the issue was whether under article 23(6) of the Constitution, courts have the discretion to grant or not to grant bail. The Constitutional Court applied the literal rule of interpretation in resolving this issue.

Commenting on paragraph (a), it held that “…the context of article 23(6)(a) confers discretion upon the court whether to grant or not to grant bail” and concluded that, “Bail is not an automatic right.” The court reasoned that,“Under article 23(6)(a)may” creates a discretion for the court to grant or not to grant bail.” Accordingly, the word “may” was understood to be permissive, optional or discretional [14].

Turning to paragraphs (b) and (c), the Constitutional Court held that, “…the court has no discretion to grant or not to grant bail after the accused has shown that he/she has been on remand in custody for 60 days before trial or 180 days before committal to the High Court [15].”

Regarding paragraph (b) the court held that, “…where the accused has been in custody for 60 days before trial for an offence triable by the High Court as well as a subordinate court, that person shall be released on bail on such conditions as the court considers reasonable. Here the court has no discretion. It has to grant bail because of the use of the phrase ‘shall be released on bail’, appearing therein. This is the opposite of the phrase ‘may be released on bail’ as appears in 23(6)(a)….” Accordingly, the word “shall” was understood to be
imperative or mandatory, thereby denoting obligation.

As regards the complementary provisions like section 15 of The Trial On Indictments Act (and by necessary implication other laws like the Magistrates Courts Act), the court observed that these are regulatory. It was stated that, “In this case, the court may refuse to grant bail where the accused fails to show to the satisfaction of the court exceptional circumstances….” Thus, in a number of cases, the applicants were denied bail for failing to fulfill the conditions given. In others, the courts concerned gave reasonable guidance as the ensuing discussion demonstrates.

In Hon. Godi H. Akbar Vs Uganda [16], the state, wishing to defeat the application for bail, contended that the applicant would interfere with its undisclosed allegedly delicate and sensitive witnesses. In rejecting the objection, Justice Zehurikize said that, “It was necessary to tell Court as to what makes the witnesses so delicate to warrant the need to handle them with diligence and sensitivity….Court cannot act on bold allegations which are devoid of any proof.”

In Uganda Vs Wilberforce Nadiope & 5 Ors [17], bail was refused on the ground that because of the accused’s prominence and apparent influence in life there were high chances that he would use his influence to interfere with witnesses.

In exercising discretion whether or not to grant bail, two things must be noted:-

(i) Courts should not rely on fanciful fears to deny bail. In Panju Vs Republic [18], the Tanzanian High Court held that, “If the Courts are simply to act on allegations, fears, or suspicions, then the sky is the limit and one can envisage no occasion when bail would be granted whenever such allegations are made.”

(ii) The Ruparelia Case above held that at this stage of the proceedings, the parties are not required to prove their allegations beyond reasonable doubt. It is enough to adduce facts showing reasonable cause for belief.

4. Analyzing judicial discretion.

In my view, bail is a creature of statute, whose grant or not must be guided by the statutory provisions. Hence even where bail is discretionary such as under article 23(6)(a), the grant or denial of it must be exercised judicially. It was stated in the Besigye’s case above that, “Remanding a person in custody is a judicial act and as such the court should summon its judicial mind to bear on the matter before depriving the applicant of their liberty [19].” The decision must be fair and well within the legal provisions. In short, discretion is not unfettered, like this statement insinuates.

For instance, where bail is discretionary, it cannot be taken to mean that a judge can deny it based on unreasonable considerations, as bail should not be refused mechanically simply because the state wants such orders. Declining to grant bail should not be based on mere allegations. The grounds must be substantiated [20]. I cannot put it any better than the Constitutional Court did in the Foundation for Human Rights Initiatives case [21] above that, “The courts have clear guidelines as to how to exercise the discretion to grant or not to grant bail and the basis on which to be exercised.” This discretion is not entirely absolute, which explains why the law maker succinctly included the word “reasonable” in our legislation.

Therefore, the test is that of reasonableness––the question being whether a prudent man, being guided upon such rational considerations of ordinary human conduct, would have done or abstained from doing what the judge in fact did. For this reason, in the case of Onyango Obbo & Andrew Mwenda Vs Uganda [22], the High Court overturned the Chief Magistrate’s decision to fix a bail bond of Ug. Shs. 2,000,000 for each accused, considering it to be excessive and instead reduced it to Ug. Shs. 200,000 for each one of them.

The express fetters on discretion included in paragraphs (b) and (c) of article 23(6) are for policy reasons and are really ‘just in case’ safeguards, in consideration of our history that is characterized by violence and wanton abuse of human rights which the 1995 Constitution recalls and recognizes in the preamble.

Indeed, the Constitutional Court seems to have been alive to this in the Besigye case [23] above, when it stated that, “We, however, feel constrained for the sake of completeness of the exercise, to offer some general observations on the ‘reasonable conditions’ the court should keep in mind when deciding to grant bail or to refuse to grant bail. While considering bail the court would need to balance the constitutional rights of the applicant, the needs of society to be protected from lawlessness and the considerations which flow from people being remanded in prison custody which adversely affects their welfare and that of their families and not least the effect on prison remand conditions if large numbers of unconvicted people are remanded in custody...The applicant should not be deprived of his/her freedom unreasonably and bail should not be refused merely as a punishment….The court must consider and give the applicant the full benefit of his/her constitutional rights and freedoms by exercising its discretion judicially.”

5. Conclusion.

The right to bail is a creature of statute, with clearly set guidelines as to how it should be exercised and enjoyed, even where discretion is permitted. Where a judge has a lee way to grant or decline bail (such as under A. 23(6)(a)), the test of reasonableness restricts the extent to which he/she can go in this.

Under A. 23(6)(b) and (c) the judge has no choice but to grant bail upon such reasonable conditions deemed fit. To my mind, this results in two levels of release (so to speak) i.e. release de jure (or release as of right) and release de facto (or physical/actual release. The former is an entitlement; the latter is dependent upon fulfillment of the reasonable conditions imposed by court.

It follows therefore, that the judges' discretion to grant or refuse bail must be within the scope of authority permisible within the confines of the law.

Notes and References

1. B.J. Odoki, A GUIDE TO CRIMINAL PROCEDURE IN UGANDA, The Law Development Centre, Kampala, 1990 at p. 69.

2. Elizabeth A. Martin (Ed.), A DICTIONARY OF LAW, 5th Edition, Oxford University Press, 2003, at p. 43.

3. Osborne, A CONCISE DICTIONARY, 8th Edition, at p. 39.

4. Francis J. Ayume, CRIMINAL PROCEDURE AND LAW IN UGANDA, Longman publishers, 1986 at p. 54.

5. In Joseph Tumushabe Vs Attorney General, Constitutional Petition No. 6 of 2004 (unreported), Twinomujuni J.A. said that the basis of the right to bail is to be found in article 28(3)(a) of the constitution.

6. B.J. Odoki, op. cit.

7. Constitutional Appeal No. 3 of 2005 (unreported).

8. See for instance, section 75 of the Magistrates Courts Act, Cap. 16, Laws of Uganda.

9. Cap. 23, Laws of Uganda.

10. (2008) AHRLR 235.

11. Ibid., at p. 245.

12. [1992-1993] HCB 52.

13. Constitutional Reference No. 20 of 2005 (unreported).

14. ibid., at p. 8.

15. ibid.

16. High Court Miscellaneous Application No. 124 of 2008.

17. Reported in Ayume, CRIMINAL PROCEDURE AND LAW IN UGANDA, at p. 57.

18. [1973] E.A 282, 283.

19. Constitutional Reference No. 20 of 2005, at p. 12.

20. Ibid.

21. (2008) AHRLR 235, 244.

22. High Court Criminal Miscellaneous Application No. 145 of 1997.

23. Constitutional Reference No. 20 of 2005, at pp. 10 to 11.