Cash Bail is the Exception: Lessons For Ugandan Judges from Comparative Jurisdictions

By Nuwe Ahereza Marvin*

I. Introduction

Can every accused person pay cash bail? Of course not! Cash bail presents itself as among the silent contributors to increased pretrial detention in Uganda and in many cases a gross violation of the 1995 constitution. In a recent case, Eron Kizza was granted cash bail at 20 million Uganda shillings with his sureties bound by a bond of 50 million Uganda shillings each should he abscond. He was equally ordered to deposit his passport in court. This decision mirrors the grave injustices that the judiciary has become complicit in. The irony of exorbitant cash bail being ordered under the disguise of discretion and granting bail according to the circumstance of the case cannot be deemed to meet the constitutional muster as will be detailed.

The right to apply for bail is a constitutional right guaranteed under article 23(6) and specifically article 23(6)(a) of the 1995 constitution that provides for discretionary bail. The right to apply for bail is closely linked with other non derogable rights such as the right to a fair hearing and presumption of innocence. The learned justice in Eron’s bail case discussed discretion as the exercise of judgement based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant is no entitled to demand the act as a matter of right. While relying on R v Board of Education [1990] 2 KB 165, he held that the court acts within the rules of reason, justice and the law especially the objects and limits intended by particular legislation. Judicial discretion must be exercised judiciously and not arbitrarily and above all must meet the constitutional muster.

II. Is exorbitant Cash Bail justifiable?

Did the learned justice act with reason, Justice and the law in ordering the bail terms as he did? In Charles Onyango Obbo and Andrew Mwenda v Uganda HCMA No 145 of 1997, Justice Bossa strongly emphasised that while court should take into account the accused’s ability to pay; while exercising their discretion to grant bail on certain conditions, the court should not impose such tough conditions that bail looks like a punishment to the accused. In that case, the bail was set at UGX 2,000,000 which in the early 2000s was a staggeringly exorbitant sum and on appeal, the bail was reduced to UGX 200,000. This decision was made in light of the principle that though courts are enjoined with the discretion to grant bail on such conditions as they deem reasonable, the conditions for the grant of bail should be reasonable and not punitive in order not to render the grant illusory.

The Obbo decision was relied on by the same learned justice in Kizza Besigye’s bail case when he reduced the cash bail for Kizza Besigye in Kizza Besigye v Uganda [2022] UGHCCRD 22 that had been set at 30 million Uganda shilling reducing it to 3 million shillings. He agreed that bail is not a punishment but is merely intended to secure the attendance of the accused for trial. He held that the trial magistrate had exercised her jurisdiction with material irregularity as the cash bail term was manifestly harsh and exercise and occasioned a miscarriage of justice. He noted that the bail terms must not be set so high as to be out of reach or appear punitive and neither should they be set so low as to be outrageous and ridiculous. they must meet the circumstances of the individual case and the primary consideration is whether they will oblige the accused to be in court for trial whenever they are required to appear. This case is almost on all fours with the bail application that was before the judge. What changed?

III. Lessons from other jurisdictions

The considerations for cash bail have been settled in other jurisdiction highlighting Uganda’s laxness and unprogressive attitude towards cash bail reforms. The judiciary of our immediate neighbour Kenya, has put in place bail and bond policy guidelines to guide judicial discretion in regards bail, bond and pretrial detention. Among the principles enshrined in those guidelines is the right to reasonable bail and bond terms. The principles states as follows:

“Bail or bond amounts and conditions shall be reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial. Accordingly, bail or bond amounts should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial. Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case.”

Furthermore, the principles state that:

“Since the ultimate goal of bail or bond is to guarantee that an accused person attends his or her trial, it is important to underscore that Article 49(2) of the Constitution does not necessarily mean that all persons accused of committing offences that are punishable by a fine only or by imprisonment for not more than six months are entitled to free bonds or release on personal recognizance. Accordingly, in this context police officers and judicial officers have the power to impose appropriate bail or bond terms when releasing such offenders. Unless they do so, “there is a real probability that many persons who are charged with offences that attract only fines or that attract imprisonment for six months or less, will not bother to turn up in court for their trials [thereby increasing] the volumes of pending cases in leaps and bounds.”

The Kenyan high court in Harish Mawjee & another v Republic while discussing those guidelines held that:

“The Bail and Policy Guidelines were developed to give guidance in decisions making on bail in line with the constitutional provisions. The guidelines recognized the need for a balanced approach in preserving the public interest and the right of an accused person to fair trial. On guiding courts in determining reasonable bail terms, the guidelines provided that bail or bond amounts should not be excessive, they should not be far greater than was necessary to guarantee that the accused person would appear for his or her trial, amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. What was reasonable would be determined by reference to the facts and circumstances prevailing in each case.”

Equally, the Kirit Bhangwanda Kanabar v DPP & another discussed what should guide the court in determining the quantum of bond terms, as a way of gauging what would be reasonable bond terms. It held that:

“The seriousness of the offence should not be seen from an eye of the quantum or liquidated amount stated to be defrauded or stolen but the nature and gravity of the offence should be in line with prescribed penal provisions and probable sentence on conviction. It was important to distinguish between the nature of the offence as a category and the seriousness of it as attached by the legislature in its various cluster of punishment in default.

Given the framework, the automatic trigger on the cash bail being based on a particular percentage or ratio of the alleged amount in the offence charged to was a fallacy not attributable to any rationale or legal craft. In other words, exercise of discretion in determining bail terms should apply the fundamental rights to ensure fairness, access, justice, consistency, predictability, speedy trials and due process of the law. That was because the framers of the Constitution forged a new path under article 49 (h) which mirrored the rule against the use of excessive bail. Setting bail amounts at ratios that were unaffordable contravened equal protection and due process rights of an accused person

There was no inquiry carried out to satisfy the Court that the accused person had the ability to deposit the cash bail or recognizance of a surety of ten (10) million in lieu of cash”

Kenya has thus recognised the danger in exorbitant cash bail and the pitfalls that arise from it including but not limited to creating a system of pretrial detention grounded in economic inequity and ability to pay cash bail or not and how it punishes an accused person before conviction thus violating the right to be presumed innocent until proved guilty.

Section 165 of the Administration of Criminal Justice Act of Nigeria which provides for conditions for grant of bail contains a special clause to the effect that bail shall be at the discretion of court with due regard to the circumstances of the case and shall not be excessive. This buttressed by section 120 of the Nigeria Criminal Procedure Code Act that states:

“The amount of bail to be taken in any case shall be in the discretion of the court by whom the order for the taking of such bail is made, shall be fixed with due regard to the circumstances of the case and shall not be excessive.”

What is excessively depends on the applicant before court and the circumstance of the case and as such judicial officers in Nigeria are bound to cognizant not to give harsh and excessive cash bail terms as this would amount to an indirect denial of bail and unconstitutional under the Constitution of Nigeria.

India perhaps represents one of the most progressive jurisdictions in the arena of cash bail and support to the indigent to apply for bail. The constitution of India like that of Uganda guarantees the right to be presumed innocent until one is proved guilty as well the right to a fair trial. The supreme court of India in Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar recognised the intersectionality between economic capacity and success of bail applications as those with the means are able to pay the monetary cash bonds and bails while those who can’t are denied their liberty because they can’t pay the bail. The court in that case observed that:

“Then there are several under-trial prisoners who are charged with offences which are bailable but who are still in jail presumably because no application for bail has been made on their behalf or being too poor, they are unable to furnish bail. It is not uncommon to find that under-trial prisoners who are produced before the Magistrates are unaware of their right to obtain release on bail and on account of their poverty, they are unable to engage a lawyer who would apprise them of their right to apply for bail and help them to secure release on bail by making a proper application to the Magistrate in that behalf. Sometimes the Magistrates also refuse to release the undertrial prisoners produced before them on their personal bond but insist on monetary bail with sureties, which by reason of their poverty the under-trial prisoners are unable to furnish and which, therefore, effectively shuts out for them any possibility of release from pretrial detention.”

The supreme court of India in Satender Kumar Antil vs Central Bureau Of Investigation laid down quite a number of principles regarding the application of bail in India. The supreme court while comparing many common law jurisdictions with India held that the right to be presumed innocent until proved guilty is the crux of bail. The court added that bail should be given on the primary consideration that a person returns for trial of their case. Court recognized the principle is that bail is the rule and jail is the exception. The court laid down the guidelines for different offences and how bail for those offences should be handled. However importantly, the court held that one must not be denied bail without a just cause and bail must not be arbitrary or serve a punitive purpose. As such, the bail terms should be fair, propionate to the accused’s means and not harsh that it amounts to pretrial punishment.

The supreme court in that case borrowed from the jurisprudence of the courts in Canada that apply the ladder rule where restrictions are applied progressively depending on the circumstances of the case stating with the default being unconditional release to release with minimal conditions and lastly to the most restrictive being cash bail or sureties. The court in that case emphasised that cash bail should be avoided at all costs and an accused should be ordered to pledge assets rather than cash bail and in exceptional circumstances court should investigate the accused’s ability to pay cash bail in order to avoid de-facto detention because of exorbitant and unjust cash bail terms. The court in that case equally made a very important recommendation to enact a Bail Act.

The conundrum of cash bail continues to disturb the world all over with different countries taking different approaches, for examples states in the United States use cash bond and bail as the default, operating systems of scheduled bail where offences are categorised and sums for bail for those offenses expressly provided for in statutes. This system has since been challenged on the grounds that it creates wealth-based discrimination. Earlier on the supreme court in 2023, was unsuccessfully urged by the American bar association to take on a case whether states can impose schedule-based cash bail on an indigent defendant before allowing their pre-trial release from jail. As such the struggle to eliminate the default cash bail system in the United States is still ongoing both in courts of law and in the legislature with some state legislatures choosing to do away totally with cash bail and fronting alternatives  to it.

Coming back home, in research conducted by the Uganda Law Reform Commission, it was found there are many complaints about cash bail premised on inconsistencies in cash bail terms with similar cases having similar or the same offences being decided very differently from each other. This trend cannot be reconciled with the doctrine of precedent to which Uganda as a common law country subscribes to. Furthermore, the report revealed bail is seen as a preserve of the wealthy mainly because cash bail terms are set too high for the ordinary indigent Ugandan to afford. This has thus painted bail as a tool of oppression contrary to what it was initially meant for.

IV. Conclusion  

In summation, the examples from other jurisdictions detailed above should offer guidance to the judiciary to revise its bail policy in favour of ensuring justice for everyone in Uganda and upholding the core tenants of the bill of rights in the constitution of Uganda. The Judiciary and its partners need to enact guidelines to guide judicial officers in regards cash bail terms and to use cash bail as the last resort and not first option .Furthermore, the judiciary also needs to borrow lessons from countries embracing the total eradication of cash bail in favour of less restrictive conditions of bail such as  , travel restrictions , pledging assets , mandatory police check ins, curfews , supervision orders as well as electronic monitoring depending on flight risk of the accused person. Lastly and most importantly, the primary consideration as has been shown should be with the conditions set will ensure that the accused person attend trial whenever required and as such the judge should be satisfied that these conditions are not harsh and excessive as to lead to de-facto pretrial detention.

*The writer is a Director of Research and Publications at Lex Amica