Innocent Until Proven Guilty: the underlying legal, social and economic dynamics of Bail in Uganda

Authors: Rashid Bunya, Ruth Kulabako Birungi Makubuya and Evelien Wauters

In recent weeks, many commentators have proffered opinions on the constitutional guarantee of the right to apply for bail.[1] This fundamental right has been worrying politicians as protecting criminals only and maintaining impunity. While injustice and discrimination in the administration of justice is rampant and should be the target of resources and policies, a concern already voiced as part of the consultation of the people by the Constitutional Commission in 1995, effective policy decisions can only be made with an accurate representation of the current status quo. It is therefore necessary to distinguish facts from commonly shared fictions, and to point out missing information in today’s debates.

First, bail has its origin in the well-established legal principle of innocent until proven guilty enshrined in Article 28 of the Constitution. The right to bail is thus a legal principle protecting the innocent rather than the guilty.[2] Moreover, bail is not mandatory but discretionary at the instance of the court. The following factors have to be taken into account while considering an application for bail: the nature and the gravity of the offence, recidivism, and likely interference with witnesses.[3] These requirements ensure that bail is not granted to those forming a clear threat to society.

The right to bail was one of the key items on the agenda for consideration by the Constitutional Review Commission chaired by Justice Benjamin Odoki.[4] On 21 December 1988 the National Resistance Council (NRC) enacted Statute No. 5 of 1988 which established the Uganda Constitutional Review Commission, to start the process of developing a new Constitution, including by way of public consultations.[5]  The 1995 Constitutional Commission Report concluded that the ‘[p]rovision for grant of bail to accused persons should be maintained in the […] Constitution, and bail should not be refused without proper justification.’[6] The people’s concerns regarding bail were the need for automatic bail of pregnant and breastfeeding women, except in case of capital offences, as well as the automatic release after long periods of detention.[7] Neither of the two were taken over in the 1995 Constitution. Another concern voiced by the people was the discrimination in the administration of justice, including the granting of bail for those suspected of embezzling public funds or other corruption in the public service but was also left unanswered by the framers of the Constitution.[8] More recently, the 2019 paper by the Uganda Law Reform Commission cited the example of chicken thieves having to pay colossal sums of money to be released on bail or being denied bail due to the lack of a fixed address while a senior police officer charged with murder is released as he owns a villa in Muyenga. The paper identified the wide discretion of judicial officers as lying at the basis of such ‘injudicious’ inconsistencies.[9]

A second key rationale in favour of granting bail has long been left out of the public debate: the guarding of the taxpayer’s money and averting other socioeconomic repercussions for society.[10] The overall cost of maintaining a detainee in Uganda costs the treasury UGX 22,966 per prisoner per day. As of September 2021, the Ugandan prisons counted 65,147 prisoners.[11] This brings the yearly cost of prisoners’ maintenance to UGX 546,100,590,730, of which more than half goes to pre-trial detainees. Pre-trial detention represents a major chunk of the detainees in Uganda: by June 2020, the number of people held in remand was 55%.[12] Due to its high cost, long and frequent pretrial detention infringes the state’s ability to invest in socioeconomic development. It therefore also has an ‘opportunity’ cost. Every shilling the government spends on detention cannot be spent on healthcare or policing or education. Additionally, the economic and social costs incurred by the detainee, their family and the community on pretrial detention would have otherwise been invested in different areas of the Ugandan economy.[13]

The costs associated with pre-trial detention are in most cases avoidable. More effective and cheaper alternatives exist to pretrial detention, including bail. While such data is not publicly available for Uganda, in England and Wales, 19% of those in pretrial detention were acquitted, and another 30% received non-custodial sentences. In Chicago, 80% of the 100,000 pretrial detainees per year are not given a prison sentence.[14] In many such cases a more careful review of the profile of the defendant and the alternatives to their detention, would have permitted their release awaiting trial.

The costs of pretrial detention are further exacerbated by the time it takes to schedule a trial. Case backlogs and slow proceedings result in a trial only taking place after months or years of detention. By 2019, the Ugandan case backlog was at 36,009 cases which has reportedly worsened due to COVID-19.[15] While the High Court has been said to have brought down the average time on remand from 22 in 2016 to 18 months in 2019 for capital offenders[16], the pretrial detention of 3 to 4 years and counting is nevertheless not the exception.[17] For example, in January 2021, the Jinja High Court released on bail 132 Royal Guards arrested during the 2016 November Kasese killings and arrests. As most detainees were suspected of offences such as terrorism, murder and treason, they had a right to be released after 180 days after the arrest, on the conditions set by the court. However, they were only granted bail over 4 years after their arrest and thus in clear violation of the 180 days constitutional limit. Additionally, at least 60 persons reportedly remain in detention.[18]

The Constitutional provision on release after 180 days in case of a delayed trial, has been put forward as obviating the need for bail. However, such only applies to cases which have not been committed to Court – and even if not committed the release is still not automatic and at the discretion of the court.[19] This is in contrast with the views expressed as part of the 1995 Constitutional consultations which called for shorter minimum periods after which a suspect should be released automatically.[20] Moreover, after committal, no legal limit to pretrial detention applies.

The increasing of the budget of the judiciary from 190 billion to 490 and eventually 890 billion, with an undetermined timeline, and speeding up trials have been suggested as compensatory measures for these delays in case of the scrapping of bail. However, while more resources are part of a fairer administration of justice, money can be put to the wrong or partial causes. Whereas the shortage of judges and magistrates has been identified as a cause of lengthy detention, many causes are situated at the police and investigative levels, including excessive pretrial detention.[21] This problem is caused by the police philosophy of arresting and detaining suspects, no matter the merit of the accusations against them, and investigating the crime later.[22] In addition, too speedy trials could lead to wrongful convictions, resulting in a higher cost for the taxpayer and possibly even longer proceedings.

Apart from emphasizing the multiple importance of bail, it should be questioned whether the scrapping or tightening of bail will achieve its intended goal of addressing impunity. Notably, it has been shown that the scrapping or tightening of bail, does not lead to more public safety. Research carried out in four states and nine cities and counties in the United States showed decreases or negligible increases in crime after offering a broader access to bail and focusing on alternatives to pretrial detention[23], in all but one state.[24] Crime rates in Uganda since 2017 have also been decreasing.[25] Yet, in the past two decades bail has been put on the chopping block at any opportunity, from the murder of AIGP Andrew Felix Kaweesi and his body guard in 2017[26] to the walk to work protests by opposition members in 2011.[27]

The less absolute the right to apply to bail, the more room for political justice or other abuse and inequalities, as the examination and application of each additional condition will be at the discretion of the different actors involved. This will come on top of the already existing and criticized wide discretion of judicial officers regarding bail. Similarly, such discretion issues arise regarding the powers foreseen for the executive appointed Director of Public Prosecutions in the Cabinet Memo on Bail to issue ‘a certificate of objection to bail’ if the accused person is ‘likely to prejudice the safety or interest of the country’, is not only a blatant violation of the presumption of innocence and the separation of powers[28] but also puts people at risk of 180 days detention and more for reasons not confirmed by a Court.

The question should be posed whether a reform of the right to apply to bail, be it on the basis of a referendum, can be carried out in line with the Constitution. The right to a fair and speedy hearing by an impartial tribunal and the presumption of innocence are non-derogable following Article 28 and Article 44 of the Constitution, meaning that they cannot be suspended under any circumstances. Consistent with the presumption of innocence, defendants should normally be granted release pending trial.[29] The United Nations Human Rights Committee has ruled that detention before trial should be used only to the extent it is lawful, reasonable, and necessary. Necessity should be interpreted narrowly as ‘to prevent flight, interference with evidence or the recurrence of crime’ or ‘where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.’[30]

To conclude, in any meaningful debate on the suitable system of bail in Uganda, attention should be paid to the whole picture of injustice and discrimination in the administration of justice, and not only parts of it. As suggested in this piece, the proposed reforms to bail inadequately address the shortcomings identified in Uganda’s criminal justice system. On the contrary, the Cabinet Memo seems to introduce a form of ‘justice’ by security personnel. It takes the attention away from (and might further add to the repercussions of) some of the fundamental causes of discrimination in the administration of justice such as rampant corruption and impunity of those involved, a concern already voiced by the people of Uganda in 1995. The current reform proposals are thus another episode in the use of legitimate concerns of Ugandans regarding a discriminatory justice system to implement far reaching restrictions on fundamental rights and freedoms which divert from the real causes at the basis of a failing system.

* The authors would like to warmly thank Faridah Kyomuhangi, Irene Anying and Romain Ravet for their input.

[1] Constitution of Uganda (22 September 1995) https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/44038/90491/F206329993/UGA44038.pdf Art 23(6).

[2] Foundation for Human Rights Initiative v Attorney General, Constitutional Petition No. 20 of 2006 [2008] UGCC 1 (26 March 2008).

[3] Magistrates Court Act (adopted 22 January 1971) Section 77.

[4] Uganda Law Reform Commission, Review of bail in the criminal justice system (30 May 2019) https://www.ulrc.go.ug/sites/default/files/Review%20of%20Bail%20in%20the%20Criminal%20Justice%20System%20-Consultation%20paper.pdf 1.

[5] Uganda Law Reform Commission, Review of bail in the criminal justice system (30 May 2019) https://www.ulrc.go.ug/sites/default/files/Review%20of%20Bail%20in%20the%20Criminal%20Justice%20System%20-Consultation%20paper.pdf 1.

[6] Uganda Constitutional Commission Report (1995) https://www.constitutionnet.org/vl/item/1995-uganda-constitutional-commission-report 765.

[7] Uganda Constitutional Commission Report (1995) https://www.constitutionnet.org/vl/item/1995-uganda-constitutional-commission-report 407.

[8] Uganda Constitutional Commission Report (1995) https://www.constitutionnet.org/vl/item/1995-uganda-constitutional-commission-report 418 and 441.

[9] Uganda Law Reform Commission, Review of bail in the criminal justice system (30 May 2019) https://www.ulrc.go.ug/sites/default/files/Review%20of%20Bail%20in%20the%20Criminal%20Justice%20System%20-Consultation%20paper.pdf 4.

[10] Open Society Foundations, The Socioeconomic Impact of Pretrial Detention (2011) https://www.justiceinitiative.org/uploads/84baf76d-0764-42db-9ddd-0106dbc5c400/socioeconomic-impact-pretrial-detention-02012011.pdf 11ff.

[11] Uganda Prisons Service, Monthly Newsletter, No.5 Vol.05 (September 2021) https://www.prisons.go.ug/sites/default/files/UGANDA%20PRISONS%20SERVICE%20Monthly%20Newsletter%20September%202021%20Edition.pdf.

[12] Penal Reform International, Pre-trial detention (Global Prison Trends 2021) https://www.penalreform.org/global-prison-trends-2021/pre-trial-detention/.

[13] Open Society Foundations, The Socioeconomic Impact of Pretrial Detention (2011) https://www.justiceinitiative.org/uploads/84baf76d-0764-42db-9ddd-0106dbc5c400/socioeconomic-impact-pretrial-detention-02012011.pdf 36ff.

[14] See Open Society Foundations, The Socioeconomic Impact of Pretrial Detention (2011) https://www.justiceinitiative.org/uploads/84baf76d-0764-42db-9ddd-0106dbc5c400/socioeconomic-impact-pretrial-detention-02012011.pdf 40.

[15] Farooq Kasule, ‘We Need More Judicial Officers to FIght Case Backlog — Owiny Dolo’ New Vision (11 April 2021) <https://www.newvision.co.ug/articledetails/97982> accessed 27 October 2021.

[16] JLOS, Annual Report 2019/20  https://drive.google.com/file/d/1O0fCm-VVrFtk0FT5guvkgPU1ZObMQiKu/view 29.

[17] Avocats Sans Frontieres, Presumed Innocent, Behind Bars: The Problem Of Lengthy Pre-Trial Detention In

Uganda (2011) https://ihrp.law.utoronto.ca/sites/default/files/documents/Presumed%20Innocent%20-%20report%20on%20lengthy%20pre-trial%20detention.pdf 17.

[18] NTV Uganda, Jinja high court grants bail to 132 Rwenzururu royal guards (YouTube, 9 January 2021) https://www.youtube.com/watch?v=NOExUN91TE0.

[19] Art 23(6)(a) Constitution of Uganda.

[20] Uganda Constitutional Commission Report (1995) https://www.constitutionnet.org/vl/item/1995-uganda-constitutional-commission-report 407.

[21] Avocats Sans Frontieres, Presumed Innocent, Behind Bars: The Problem Of Lengthy Pre-Trial Detention In

Uganda (2011) https://ihrp.law.utoronto.ca/sites/default/files/documents/Presumed%20Innocent%20-%20report%20on%20lengthy%20pre-trial%20detention.pdf 19ff.

[22] Nicholas Opiyo, Guest post: Pre-trial detention in Uganda (16 June 2014) https://www.fairtrials.org/node/661.

[23] Tiana Herring, Releasing people pretrial doesn’t harm public safety (17 November 2020) https://www.prisonpolicy.org/blog/2020/11/17/pretrial-releases/.

[24] The one exception is New York State, where the reform law existed for just a few months before it was largely rolled.

[25] No statistics are publicly available for the period before 2017. Uganda Police, ‘Annual Crime Report 2020’ <https://www.upf.go.ug/wp-content/uploads/2021/04/ANNUAL-CRIME-REPORT-2020-1.pdf?x74136>.

[26] Yudaya Nangonzi, ‘Bail to Suspected Killers Must Stop, Museveni Tells Courts’ The Observer (14 June 2018) <https://observer.ug/news/headlines/57942-bail-to-suspected-killers-must-stop-museveni-tells-courts.html> accessed 30 October 2021.

[27] Musaazi Namiti, ‘“Walk-to-Work” Kicks up Dust’ Al Jazeera (28 April 2011) <https://www.aljazeera.com/features/2011/4/28/uganda-walk-to-work-protests-kick-up-dust> accessed 30 October 2021.

[28] The Director of Public Prosecutions (DPP) is appointed by the executive (Art 120 Constitution of Uganda). The judiciary is a separate power under Chapter 8 of the Ugandan Constitution. The DPP’s mandate is discussed separately under Art 120 of Chapter 7 as the guardian of the public order and is not part of the independent judiciary.

[29] Art 9(3) ICCPR: ‘It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial’.

[30] CCPR, Communication No. 1128/2002 (18 April 2005) CCPR/C/83/D/1128/2002 para 6.1.

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