The Monitor (Kampala)

27 March 2008

Uganda: Bail Not Automatic, Court Rules

Kampala — BAIL is not an automatic and constitutional right, the Constitutional Court said yesterday in a ruling that is bound to cause anguish within Uganda's political opposition and human rights groups.

The court, however, ruled that persons arrested for any crimes must not be held beyond 48 hours and that any extension would be a violation of their human rights.

Detention of suspects without trial, especially those accused of political crimes has remained a sticking issue between the government and its political opponents. Matters came to a head in 2005 with the arrest of Col Dr Kizza Besigye and others.

The ruling followed a petition filed by the Foundation for Human Rights Initiative (FHRI) in conjunction with a team of human rights lawyers mid last year. It was heard in October.

The activists have long argued that bail is a human right. But the court led by Deputy Chief Justice Laetitia Mukasa Kikonyogo instead focused on limiting how long state agencies can hold suspects and ruled that bail may or may not be granted depending on the case.

The Justices nullified Section 16 of the trial and Indictment Act, Sections 219, 231 and 248 of the Uganda People's Defence Forces Act and Section 25 (2) of the Police Act, some of which empower security forces to detain suspects beyond 48 hours.

The Court also nullified Section 76 of the Magistrates Courts Act which was infringing on people's constitutional right to liberty and a speedy trial. The section excludes certain offences from grant of bail.

"Since all the justices on the panel have agreed with the above holding and proposed declarations, this petition succeeds in part with the above mentioned declarations," ruled Ms Kikonyogo. Others on the panel were Justice Galdino Okello, Justice Alice Mpagi-Bahigeine, Justice Christine Kitumba and Justice Constance Byamugisha.

The court ruled that the constitution only empowers suspects to apply for bail and that the courts retain the discretion whether or not to grant or deny it.Justice Kikonyogo said minor offenders only qualify for automatic bail after spending at least 60 days on remand, while capital offenders qualify after a remand period of 180 days.

"There is nothing to persuade me to find that bail is automatic," she ruled. The ruling means that a capital offender cannot qualify for bail before the expiry of the stated days unless they prove exceptional circumstances like old age or grave illness.

But the lead-lawyer in the petition, Mr Kenneth Kakuru, said he was disappointed that the judges remained silent on many other issues that were raised in the petition.

"I do not think they (judges) appreciated some of the issues we raised. They have even ignored some mandatory provisions," he said.

Mr Kakuru, who jointly argued the petition with Mr Medard Lubega and Ms Dorothy Kabugo, among others, said he would advise his clients to appeal against the judgment in the Supreme Court.

The petitioner, FHRI said it will comment later.

Mr Kakuru said the judges did not comment on scenarios where capital offenders cannot get bail after they are committed to the High Court for trial.

The judges said, "It is not disputed that bail is an important judicial instrument to ensure individual liberty.

However, the court has to address its mind to the objective of bail. It is equally an important judicial instrument to ensure that the accused person's appearance to answer charge or charges against him or her."

The judges said courts are still free to exercise their discretion and to impose reasonable conditions on persons applying for bail, as a way of protecting society from lawlessness.

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