During the recent 27th NRM celebrations held in Kasese on 30/01/2013, President Museveni opted to renew his call to have bail scrapped for suspects facing capital offences and other corruption charges on grounds that it is impeding the fight against corruption. He insinuated that by granting bail, the Judiciary was making the corruption fight difficult. It is of course worth noting that Courts are not at fault for granting bail since it is provided for in the Constitution of Uganda. Just to add, Judiciary as an arm of government enjoys independence and a string of privileges in the execution of their work.
As it were, one day later, the Anti-Corruption Court granted bail to nine more suspects who were involved in the 165 billion ghost pension scam in the Ministry of Public Service after they produced 31 substantial sureties.
Civilization presupposes respect for the rule of law but the great problem for jurisprudence has always been to allow freedom while enforcing law and order.
The Constitution of Uganda, 1995 provides under Article 23 (6) that where a person is arrested in respect of a criminal offence, that person is entitled to apply to the court to be released on bail, and the court may grant that person bail in such conditions as the court considers reasonable.
Bail is principally founded on the principle of presumption of innocence as detailed under Article 28 (3) of the same Constitution.
There are several conditions a court ought to consider while evaluating a bail application before it but contextually speaking, courts often consider whether the accused is likely to jump bail, to temper with the evidence while out on bail or terrorize the complainant or witnesses. In the event that these are reported, bail can always be cancelled and have the accused re-arrested.
To scrap bail in a criminal justice system that is scrambling for attention in an already overwhelmed court system which has to pay attention to the thousands of civil cases is inconceivable. Not to mention, the already overcrowded, dilapidated detention facilities which simply can’t handle the probable surge in admissions.
Rather, it would be more productive for the courts to allocate more time to hearing criminal cases through scheduling of frequent, predictable mini-sessions to ensure that Justice is not delayed. If an accused is then found guilty, by all means secure a conviction and if innocent, let them enjoy their personal liberty.
The current committal system which has suffered shortcomings also needs review. If a state attorney can prosecute cases before the Chief magistrate, why not consider revising the jurisdiction of Magistrates Grade I since they bear the same qualification. As it is today, capital cases take almost over 3 years to set off after committal due to financial constraints to organize sessions and by the time trial commences, either complainants or witnesses have lost interest in the case or have died or simply relocated to other areas. Technically, this forces the DPP to enter a nolle prosequi in a case that they would have almost certainly won or the court is forced to dismiss the case for want of prosecution and justice is never served.
More judicial officers should be recruited to equal the ever increasing backlog of cases and their remuneration and incentives ought to be seriously revised across the board from the Chief Justice to the Clerk in the court room.
In cases that involve grand corruption, the property of such suspects should immediately be caveated, accounts frozen, such serving officer should be interdicted effective immediately and the evidence secured.
Instead of scrapping bail, we should be discussing about how to strengthen JLOS institutions and motivate the staff to ensure that they cope with the unprecedented sophisticated levels of crime and have the cases handled expeditiously.
After all, most of the so called “big fish” who were once granted bail have always continued to attend court until either acquitted or sentenced to serve their punishments.
The wait to see if the MPs will have the guts to scrap bail well knowing that they are in fact prospective candidates sounds fascinating.
Part of this article was first published in the New Vision Newspaper of 05/02/2013.