Late last year, President Yoweri Museveni of Uganda reiterated his proposal to abolish court bail and police bond for murder suspects and other capital offenders, calling it “nonsense” and undercutting efforts to combat such crimes. He packaged the agenda as justice for the victims and bail as a provocative element that interferes with security investigations. However, the move is contrary to the law and would negatively interfere with the justice system, which will lead to more abuse of fundamental human rights.
Doing away with the right to bail means that the accused is guilty without a trial. The origin of bail follows the legal principle enshrined under Article 28 of the 1995 Constitution of the Republic of Uganda, which states that an accused is innocent until proven guilty. The move by President Museveni shows he either has a limited understanding of criminal law or deliberately chooses to ignore the tenets upon which it is founded. The right to bail moves hand in hand with the presumption of innocence.
In addition, the laws provide that the right to bail is not automatic; instead, it is at the court’s discretion. The law offers several principles that should be considered before a court gives bail. The principles include the accused’s age, the accused’s character, the gravity of the offense, if the person is a first-time offender, among others.
Also, given the slow nature of Uganda’s justice system, scrapping bail would guarantee the accused a life in prison. Currently, Uganda has the highest remand population in East Africa, with a 52% remand inmate population. Another 47.1% are convicts, and 7% have been on remand for more than three years. In this kind of system, scrapping bail would warrant that the majority of the accused live on remand for the rest of their lives, thereby denying them their right to a fair trial.
The plan to scrap bail brings the issue of freedom of movement into the mix. The law is audible when it enunciates that no person shall have their freedom of movement restricted unless lawful, as prescribed under Article 23 of the Constitution.
Scrapping bail is a tool that targets political rivals and regime dissidents. It would limit freedom of speech and the right to political participation. Essentially, political opponents can easily be accused and sentenced to life in prison without trial, suffocating free will, and democracy.
The move will equally invoke the fundamental structure doctrine, which is vital in the administration of human rights. The doctrine is to the effect that a national constitution has certain basic features which underlie not just the letter but also the spirit of that constitution. These features constitute the Inviolable Core of the constitution. Any amendment which purports to alter the constitution in a manner that takes away this basic structure is void and of no effect and is tantamount to rewriting the constitution, which parliament has no power to do.
With the President vowing “Nobody will stop us” on his move to see bail for suspected capital offenders scrapped, the position of bail in the Constitution and criminal law hangs in a delicate balance. With the majority in parliament belonging to the ruling party and voting hook line and sinker with the President, it remains for the legal profession to defend the constitutional right to bail.
Preta Peace Namasaba is a fellow at African Liberty Writing Fellowship.