Abstract

Article 23(6)(a) of the Ugandan Constitution of 1995 provides that an arrested person is entitled to apply to court for discretionary bail. If a person has been awaiting trial for a specified number of days, article 23(b) and (c) obligates a court to release him/her on mandatory bail. This contribution analyses more than one hundred judgments of the Ugandan courts to determine how the question of bail, especially mandatory bail, has been dealt with judicially. Since article 23(6) does not expressly provide for the right to bail, the Ugandan Constitutional Court has come to conflicting conclusions on the question of whether article 23(6) provides for the right to be released on bail; for the right to apply for bail; or for both the right to apply for bail and to be released on bail. Relying on the drafting history of article 23(6), the author argues that the intention of the Constituent Assembly was to provide for the right of arrested persons to be released on bail. Article 23(6) also provides for mandatory bail. However, in some decisions, the High Court held that the right to mandatory bail does not fall away the moment at which a person who qualifies for it in terms of article 23(6) is committed to the High Court for trial. Based on the drafting history and literal interpretation of article 23(6), it is submitted that the moment an accused’s trial commences in a subordinate court or when they are committed to the High Court, their right to mandatory bail falls away. In addition, the High Court has held that a person who qualifies for mandatory bail is required to prove exceptional circumstances before they can be released on bail. This contribution argues that no such burden of proof exists.