Hell over bail

Sewanyana told The Independent that unless Museveni borrows from the French legal system where the burden of proof is on the accused, suspects in Uganda or even those charged with capital offences like murder are innocent until proven guilty.

But Sewanyana says Museveni might be right on one thing: that the process around the granting of bail is riddled with corruption which has contributed to the public’s loss of trust in the criminal justice system.

“But this should not wipe away the principles upon which bail is granted,” he says.

Joselyne Kengonzi, another lawyer told The Independent that getting bailed in court is not automatic.

“Once an application is before a judicial officer, it’s upon court’s discretion to grant the accused bail,” she says and speaks of the conditions in the law that the applicant must satisfy court to qualify for bail such as gravity of the offence, substantial sureties, and possibility of flight.

“Not everyone who applies for bail gets it,” she says.

Based on this, Kengonzi says if Museveni is not dabbling in politics, and he is genuinely concerned about issues around bail, he could possibly talk about stricter conditions for bail. But she says this is also already provided for in the Constitution.

Many other people oppose Museveni’s suggestion that upon arrest, the guilt of some people is already proven.

That is what emerged when he invited his NRM party legislators on Sept. 29 to the Kololo Ceremonial Grounds to discuss the issue of bail and the meeting broke up without consensus. Another meeting is expected mid- this month where Museveni is expected to hammer them into line.

He is dealing with a new set of MPs but Museveni has 35 years of experience in dealing with rebellion within government ranks. He will cajole, coerce, and reward to get his way.  That is not the question. What many people are asking is what Museveni really wants from the bail debate.

Museveni is opposed to bail for suspected murderers, rapists, defilers, terrorists and what he calls “economic saboteurs” like rioters and demonstrators.

Although it was not the first time Museveni was criticising the granting of bail, it appears Museveni is this time determined to get his way around it.

In fact, legal experts say the right to bail in Uganda has been controversial for some time.  While the Constitution recognises the right of an accused person to be released on bail, and the powers to release are conferred on the courts of judicature, the power has many times been challenged or questioned by different stakeholders with Museveni being the biggest critic.

Museveni said: “For somebody to kill a person and you give them bail is provocation. It is abominable. I would like us to cure this ideological disagreement. This bail, what’s the hurry? Who are you trying to please? Who said bail is a right? It is not in the Constitution. We are going to work on this. I am going to summon the NRM caucus and if necessary we put it to a referendum. With this provocation, people will take the law into their hands.”

Museveni said when courts keep giving bail on capital offences; the society loses hope in the courts and mobs start killing people who are suspected to have committed such capital crimes. He gave examples of people who were killed by mobs; one in Arua and another, a surveyor, in Gomba District.

“I am seeing an ideological problem between the way you are trained as lawyers and we the freedom fighters and the population. For somebody to kill a person and you give him bail that is provocation. Justice will lose meaning completely.”

Museveni said that the concept of dispensing justice has to be harmonized adding that the judicial officers should read the Constitutional Commission proceedings where, he says, the majority of the people of Uganda did not want bail for capital offences.

Many believe Museveni’s proposal has some hidden motive behind it. And politicians fear that Museveni wants to get a blank cheque to indefinitely jail opponents after removing bail. They say Museveni wants to use denial of bail to politically persecute his opponents.

Chief Justice cites the law

But Chief Justice Alfonse Owiny Dollo told Museveni publicly that giving bail to an accused person is a Constitutional right. Speaking at the same Ben Kiwanuka Memorial Lecture, Dollo told Museveni that he heard him on many occasions having a different view on the right to bail.

Dollo told the president that granting or denying bail does not depend on whims of a judicial officer because it is a Constitutional right and the officer has to grant it upon considering a number of circumstances, for instance, if one will abscond from trial or not, among others.

“Judicial officers should remember the oath they took to dispense justice without fear or favour and independently,” the Chief Justice said.

According to “A Citizen Handbook on the Law Governing Bail in Uganda,” the right to bail is a fundamental right guaranteed by the supreme law of Uganda.

The major laws relating to bail are; the 1995 Constitution of Uganda (as amended); the Magistrates Court Act, Cap 16, the Trial on Indictment Act, Cap 23, the Police Act, Cap 303, the UPDF Act, No.7 of 2005, and the Criminal Procedure Code Act, Cap 116.

Specifically, Article 23 (6) of the 1995 Constitution of the Republic of Uganda speaks candidly on the issue of bail.  Its basis is found in Article 28 of the Constitution which states that an accused person is to be presumed innocent until he/she is proved or he/she is proved or he/she pleads guilty. It also provides that an accused person is entitled to a fair and speedy trial before an independent and impartial court or tribunal established by law.

These two principles are part of the right to a fair hearing which is declared to be inviolable by Article 44 of the Constitution. The idea is that a person presumed to be innocent and who is entitled to a speedy trial should not be kept behind bars unnecessarily before trial.

This is not the first time that Museveni is coming out with strong views on court bail and wishing death upon murderers.

In January 2019, while passing out prison wardens in Kampala, Museveni said, “Criminals think they have a right to kill people and keep their heads. I am going to revise a bit and hang a few.”

In May, 2011, three months after emerging winner in a hotly contested presidential election, Museveni met with the NRM party’s newly-elected legislators at State House, Entebbe and tasked them to ensure the Constitution is amended to deny bail to any rioters and those he described as economic saboteurs.

Museveni’s proposal to deny bail to demonstrators attracted criticism and condemnation from human rights activists, lawyers and scholars. They argued that the proposal would reduce the powers of the Court and curtail people’s fundamental rights as guaranteed under the Constitution.

Sewanyana told The Independent that Museveni needs to invest more in Uganda’s criminal justice system so that investigations are done efficiently and trials are done quickly.

“Let him also sponsor a law that provides for a time limit in which a capital offence has to be dispensed by the courts. Bail is a fundamental right and should remain intact; otherwise, there is no guarantee that those who want it amended today will not become victims of the same tomorrow because times change.”

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