Compiled By Markson Omagor
The Executive is considering a raft of reforms, among them amendments to the Constitution and the Police Act, to tighten the hands of judicial officers in exercising the discretion to grant or deny bail.
In the proposals prepared for Cabinet consideration, Attorney General Kiryowa Kiwanuka proposes that Article 23(6) (b) of the Constitution be amended to provide that a person accused of committing an offence triable by both the High Court and subordinate courts, shall not be granted bail until after 180 days or trial commencement, or when the Director of Public Prosecutions (DPP) discontinues proceedings, whichever is earlier.
He also seeks changes to Article 23(4) (b) and Section 25 of the Police Act, both of which require a suspect to be released on police bond if not charged in court within 48 hours, to qualify the period as “forty-eight business hours”.
In addition, the chief government legal adviser, borrowing from Section 148 (4) of the Criminal Procedure Act of Tanzania, proposes that Uganda’s current Constitution, enacted in 1995 and amended in 2005 and 2017, be altered to give the DPP powers to issue “a certificate of objection to bail” if the accused person is likely to prejudice the safety or interest of the country.
These rafts of suggested reforms are contained in a Cabinet memorandum titled Release on police bond or court bail: Recommendations for reform, and classified as “secret”, drawn by the Attorney General on October 6.
Highly-placed sources familiar with the processes intimated to this newspaper that ministers were expected to deliberate on the Cabinet memo at their weekly sitting yesterday, but we could by press time not confirm if the 61-page document was discussed.
The proposals seen by this newspaper, if adopted by Cabinet and implemented, would make it harder for suspected capital offenders to be released upon arrest by police on bond and or on bail if already charged in court.
In the problem statement, the Attorney General argues in the memo that bail ideally should balance the interests of the accused, public interest in regard to peace and safety as well as the right of victims of crime.
This, Mr Kiryowa noted, presents a conflicting demand; balancing fundamental rights of an accused person and protecting the greater public interest, including national and international security.
“The general view is that the current system is not working. Bail is too easily granted, frequently breached and improperly enforced. Public confidence is undermined when bail conditions are routinely breached, he noted, adding, “Offenders hold the criminal justice system in contempt and new victims of crime are created unnecessarily. There is sufficient justification for tightening bail and putting public safety first.”
The AG’s position follows President Museveni’s revival last month of his decade-old push to deny bail to suspected capital offenders until they serve half-a-year on remand.
He argued that seeing arrested aggressors walk free on the streets when out on bail or bond amounted to a provocation to victims of their crime, leading to rising mob justice cases that he qualified in a televised address anecdotally, without giving actual statistics.
Legal scholars and practitioners, among them former Attorney General and retired Supreme Court Judge Justice George Kanyeihamba, who chaired the Legal and Drafting Committee during 1993 to 1995 Constituent Assembly, which promulgated Uganda’s current supreme law, have warned that the President is coursing a dangerous path because bail is a settled matter in law.
In separate rejoinders, Chief Justice Alphonse Owiny-Dollo, his predecessor Benjamin Odoki, who chaired the Commission that collected public views for review of the Constitution, as well as the Director of Public Prosecutions Jane Frances Abodo have argued that applying for bail is a right, but the decision to grant or deny it is at the discretion of the judicial officer.
Article 23 (6) of the Constitution provides that a “person arrested in respect of a criminal offence 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”
President Museveni, however, said the provision was being retailed as the supreme law providing automatic right to suspects to be granted bail whereas not.
In widening his attack front, Mr Museveni, who has vowed to fight bail politically, met, and was not successful in persuading, Members of Parliament subscribing to the ruling National Resistance Movement (NRM) party to support his position.
The NRM Caucus is expected to meet this or next week in an attempt to strike consensus after members were tasked to consult more widely about the bail proposal.
In the October 6, Cabinet memo, Mr Kiryowa reported that the blueprint he prepared was informed by consultations he had with President Museveni, the Cabinet, the Office or the Director of Public Prosecutions, Uganda Law Reform Commission, Uganda Human Rights Commission, Uganda Police Force, Uganda Prisons Services and the Judiciary. He did not indicate when the consultations happened, but stated that he had prepared the document to interest ministers to note the legal regime relating release of suspects on bail and bond; approve recommendations in the memo; and, to authorise him to draft “instructions to the First Parliamentary Counsel to draft the Constitution (Amendment) Bill, 2021, the Trial Indictment (Amendment) Bill, 2021 and the Magistrates Court (Amendment) Bill, 2021”.
Referring to findings by two separate Constitution Review Commissions, one chaired by Justice Benjamin Odoki and the other by Prof Frederick Ssempebwa, the Attorney General noted that majority of Ugandans were out rightly opposed to granting bail to suspected capital offenders and that they held the view that judicial officers and police were corrupt and favoured the rich for bail and bond while disadvantaging the poor.
“In the recent past, there has been public outcry mainly through the print and broadcasting media of the insensitivity of the criminal justice system when the courts, in exercising their discretion in criminal matters, have released persons on bail without taking into account of the wider public interest and the interests of the State,” Mr Kiryowa notes in the Cabinet memo.
He adds: “The courts have been granting bail in respect of all these offences indiscriminately, sometimes with limited or no stringent conditions.”
To stem the alleged vice, the government’s chief legal advisor now wants “substantial surety” to be expressly defined in law, a national register for bail offenders to be created, a bail compliance enforcement to be introduced either under police or private enforcers, and judicial officers be required to give justifiable reasons in writing for their decisions to grant or decline bail.
Mr Kiryowa, in echoing President Museveni, blamed repeat offenders — many that he noted were freed on bail or bond — for what he said is rising wave of serious crime in the country.
“His Excellency, the President, argues correctly that easy access to bail leads to recidivism and impunity and enables hard-core criminals to walk freely on the streets of Uganda and do further damage,” he noted. The Attorney General reported that his team benchmarked the proposed legal and administrative reforms against the criminal justice administration systems of regional neighbours and overseas jurisdictions.
Right to bail
The right to apply for bail is a fundamental right guaranteed by Article 23 (6) of the 1995 Constitution which says where a person is arrested in respect of a criminal offence, that 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;
Its basis is found in Article 28 of the same Constitution which states that an accused person is to be presumed innocent until he/she is proved or he/she pleads guilty.
Section 25 (1) of the Police Act provides that a person arrested by the police officer shall be produced before a Magistrates Court within 48 hours unless earlier released on bond. If this provision is not complied with, the magistrate, within 24 hours, shall order the release of such persons unless charged and where torture is alleged, under Section 4, the magistrate shall order an investigation into the allegation and if the allegation is proved to be true, the magistrate shall order for the examination and treatment of the suspect at the expense of the State and any person responsible for torture, shall be charged.
Judiciary to expedite bail rules
In the short term, the Attorney General’s paper to Cabinet on Bail, proposes expedited completion of the bail guidelines in order to:
- Complement the existing legal provisions on bail.
- Promote uniformity and consistency by courts when considering bail applications.
- Streamline and address the disparities in the handling of bail decision with a view to enabling fair administration of bail measures.
- Ensure that bail decision-making complies with the requirements of the Constitution.
- Promote the balancing of rights of accused persons with the public interest and the rights of the victims.
- Facilitate effective inter-agency cooperation and coordination on bail.
- Enhance conformity with the internationally-agreed minimum standards for arrested persons held in detention.
- Address the abuse of pre-trial detention.
- Safeguard the interest of victims of crime in bail decision-making.
- Facilitate effective supervision of accused persons granted bail.
- Promote transparency and efficiency in management of bail deposits and refunds.
The bail guidelines for judicial officers is expected to be issued by the Judiciary in order to harmonise the basis of decisions relating grant or denial of bail to an accused person.
Amendment of the TIA and MCA
Introduce reforms in the Trial on Indictment Act (TIA) and the Magistrates Courts Act (MCA) to provide, in addition to the existing provisions, the following:
- Requirement for an applicant for bail to make a statutory declaration under oath disclosing his or her previous criminal record (if any), arrests and compliance …or breach of previous bail or bond terms.
- Provide for a Pre-bail Impact Assessment Report (Risk Assessment reports) on the impact or effect of grant of bail to a specific person, in the same way it is required for pre-sentencing reports.
- Redefine substantial surety.
- Make legal provision to require judges and magistrates to give reasons for their decision to grant or deny bail to an applicant.
- New evidence to inform decision to cancel or withdraw granted bail and remand the accused pending trial.
- Create an agency, whether within police or private enforcement, to enforce bail compliance.
- Establish a registry of bail offenders, or crime reference bureau, either under the Ministry of Justice or the Office of the DPP. The information will help judicial officers to know who stood surety where and for who, who failed in their duty, and who should be barred from standing as surety again.
Amend the Constitution
There is need to amend the Constitution to require one to apply for bail after 180 days on remand in case of capital offenses and 60 days for other cases.
Provide for DPP’s powers to issue a certificate of objection to bail. There is need to amend the constitution to given powers to the DPP to issue a certificate of objection to bail in cases where he or she is satisfied in writing that the release of an accused on bail is likely to prejudice the safety or interest of Uganda.
Amend Article 234 (b) of the Constitution to clearly spell out the issue of police bond and to also revise the 48-hour rule. Either more time should be allowed for a suspect to remain in police custody, or it should be specified that 48 hours means 48 business hours since it’s unrealistic to expect that a suspect detained on Friday will be brought to court on a Sunday.
According to police, for cases of a serious nature, the recovery of primary evidence and exhibits used in commission of crime also requires time beyond 48 hours. Sometimes crime is organised and is cross border like complex cyber-crime and others involving trafficking persons and drug related.