QN: What is Bail?
Bail is defined as written permission from a court, allowing a person charged with a criminal offence to be out of jail while they wait for their trial, or some other result in their case (such as guilty plea or a withdrawal of their charges). The law is audible when it enunciates that no person shall have their freedom of movement restricted unless it is lawful as prescribed under article 23 of the 1995 Constitution of the Republic of Uganda. This, coupled with the principle that every person is considered innocent unless proven guilty, is the basis for the award of bail. The benefit of doubt is given to the accused that they are innocent until proven guilty, and that their freedom of movement should not be limited since the person has not been found guilty of anything as yet. Bail is often given at a certain cost determined by the Judicial officer and/or the necessity of a surety. At the same time, one will be required to stay within a certain jurisdiction for the span of the award of this bail or until the court is satisfied that it is safe for them to move to further places.
QN: Is there such a thing as a right to bail?
Bail is not a right as such, but is instead the prerogative of the Judicial officer presiding over the criminal matter. What is true however, is the fact that everyone has a Constitutional right to apply for bail but whether they are successful or not will depend on a whole other array of conditions. This is rightly so, because the court would also be committing an injustice in the event that they let a suspect go, giving them a chance to escape from the jaws of the law when further events show that they were supposed to have received the full force of the law come down upon them. It all comes down to this, does court, in its wisdom, believe that this person will appear for trial if and when called upon once bail has been granted?
QN: At what point does one apply for bail?
The law on bail is to the effect that where a person is arrested in respect of a criminal offence, that accused person is entitled to apply to the court to be released on bail, and the court may grant the person bail on such conditions as the court considers reasonable. In the case of an offence which is triable by the High Court as well as by a subordinate court, the person shall be released on bail on such conditions as the court considers reasonable. If that person has been remanded into custody in respect of the offence before trial for the 120 days and in the case of an offence triable only by the High Court, the person shall be released on bail on such conditions as the court considers reasonable if the person has been remanded into custody for 360 days before the case is committed in the High Court.
QN: What should we keep in mind when applying for bail?
The Courts in Uganda have a hierarchy that is designed under the Constitution and they all have powers that are assigned to them respectively. Starting from the Magistrate’s court and to ascending Courts, each of these judicial officers have the powers to award bail in different defined circumstances.
To begin with, the Magistrates’ courts have the powers to grant bail for any matter except in the cases of offences that include acts of terrorism, cattle rustling, abuse of office, rape, embezzlement, causing financial loss, defilement, offences under the fire arms act punishable by ten years imprisonment or more, offences triable only by the High Court, corruption, bribery and any other offences for which the Magistrate Courts have no jurisdiction to grant bail.
The High Court on the other hand does not have any limits as to what offences they can offer bail to. The High Court may grant bail to an accused upon the accused proving exceptional circumstances that entitle one to be granted bail and also showing that one will not abscond when released. Some of these exceptional circumstances include cases where an accused is suffering from a grave illness which can be proved, or even where the accused brings a certificate of no objection from the DPP’s office. One other circumstance is where the accused can prove infancy or old age.
Court, however, is not omniscient or all knowing that it would be able to easily tell whether or not one will abscond from their bail conditions. What court can do in that instance is to consider factors such as, whether the accused has a place where they stay within the jurisdiction of that court, whether the accused has sound sureties, whether the accused has been previously awarded bail and absconded from it, or whether there are other charges pending that have been labelled against the accused.