An examination of the nexus between politics and the right to court bail in Uganda

Abstract

This study examines the relationship between politics and the right to bail in Uganda with particular reference to criminal defendants that have a political relationship with incumbent power. The study analyzes international, regional and domestic legal materials as well as primary data on related aspects of politics and bail. Participants drawn from the JLOS, politics and civil society were interviewed during the months of October and November 2022, and May 2023. The study findings indicate that the international and regional norms on pretrial rights provide an enabling framework within which criminal suspects in Uganda can claim their pretrial rights, including the right to bail. The domestic framework, however, only guarantees the right to apply for bail, the grant of bail itself being the discretional province of the courts. Unfortunately, this discretion has in politically charged cases been exploited to the detriment of criminal suspects. Over the last two decades, the government has used bail as a weapon against the people it perceives to represent a political threat. This it does by framing unresolved political conflicts as political questions in order that the courts may not adjudicate over them, or as security questions in order that they be subjected to military mechanisms. The imposing nature of the Executive over the Judiciary has meant that some political detainees are denied bail and kept in indefinite pretrial detention. The scheme of denying opponents bail is perfected in the Court Martial, where the time for release on bail is a matter of politics rather than military law. The controversial Bail Guidelines 2022 were issued against this politico-judicial backdrop. Although the Guidelines introduce some novel features, they are largely a replica, and often degradation, of preexisting provisions on bail. From the foregoing findings, the study concludes, briefly, that: (i) the political and security questions underlying bail controversies are a function of the political power contests between the ruling elite and the opposition; (ii) the ruling elite deliberately escalate political conflicts in order to justify the use of military force and exert political control over bail; (iii) judicial independence is greatly compromised in cases involving political opponents of the regime, thanks to the subordinate status of the Judiciary against the executive in reality if not in law; (iv) the Bail Guidelines limit rather than enhance the powers of magistrates and the applicants’ access to bail; and (v) effective implementation of the Bail Guidelines will require some changes in the substantive law on bail. The study makes a number of policy recommendations. These include, briefly, that the Bail Guidelines be revised to harmonize with existing provisions of the MCA and TIA; the law enabling the Chief Justice to issue directives and guidelines should spell out the procedure for doing so, which should be participatory; multi-stakeholder deliberations should be promoted under the JLOS on all important matters of law in order to protect the sanctity of judicial decisions from raw politics; The study also makes a number of more general recommendations.