From the Editors: The erosion of the Right to Mandatory Bail in Uganda

Editorial Note

In the ongoing discourse surrounding the Constitution, criminal justice, and human rights, the issue of pre-trial detention, particularly mandatory bail and its practical implications for accused persons, remains a contentious point. We have seen recent extreme judicial restraint and erroneous interpretations from the Ugandan Judiciary that have denied accused persons the right to bail, the most prominent being Dr Kiiza Besigye and his aide Obed Lutale, who have been languishing in prison for over 260 days. High Court judges have consistently denied them bail on skewed reasons and procedural technicalities that do not align with the Constitution in cases like Besigye and Another v Uganda (Criminal Application No 399 of 2025), Besigye and Another v Uganda (Miscellaneous Application 113 of 2025), and Rtd. Col. Dr. Kizza Besigye & Another v Attorney General & Another (Miscellaneous Cause 31 of 2025).

We believe that there is a pattern here to short-circuit this important right by churning out erroneous jurisprudence. On August 8, 2025, the Constitutional Court delivered a decision that further narrowed the right to apply for mandatory bail. The case, Asingwire Alex Mukasa v Attorney General (Constitutional Petition No. 44 of 2022), brought forward a challenge against Guidelines 10(2) and 10(3) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022. The petitioner argued that these guidelines were inconsistent with Articles 2, 23(6)(b), and 23(6)(c) of the Constitution, as they limited the power to grant bail in offenses triable by the High Court only to the High Court. His central concern was that this system effectively disempowered Chief Magistrates Courts from granting bail in capital offenses, leading to accused persons being automatically remanded for prolonged periods because they were arraigned before courts without the jurisdiction to grant bail. He contended that this violated the right to a fair and speedy hearing and the presumption of innocence. However, in its judgment, the Constitutional Court held that Guidelines 10(2) and 10(3) are consistent with Articles 2, 23(6)(b), and 23(6)(c) of the Constitution. The court's reasoning was rooted in a literal and textual interpretation of Article 23(6)(c), which refers to offenses that are triable only by the High Court. The court asserted that the phrase ‘the court’ in this context clearly refers to the High Court, and had the framers intended to grant Magistrates Courts jurisdiction over such cases, they would have explicitly stated so.

Besigye and his aide Lutale have been in detention since 16 November 2024

From our standpoint, the court's holding appears erroneous because it failed to adequately address the practical implications of its interpretation on fundamental constitutional rights, specifically the issue of automatic remand. We believe that the Court did not fully grapple with the petitioner's core contention: that the very act of bringing an accused person charged with a capital offense before a Magistrate's Court, which lacks bail jurisdiction, inevitably leads to a period of automatic and prolonged remand. This holding disempowers magistrate courts from offering immediate relief from detention for capital offenses and contravenes the presumption of innocence and the right to a fair and speedy hearing.

Second, the Court’s reliance on the literal rule to interpret the constitution ignores years of its jurisprudence where it has held that ‘a constitutional provision containing a fundamental human right is a permanent provision intended to cater for all times to come and therefore should be given dynamic, progressive, liberal, and flexible interpretation keeping in view the ideals of people, their social economic and political, cultural values so as to extend the benefit of the same to the maximum possible.’ (Okello Okello John Livingstone and 6 Others vs Attorney General - Constitutional petition No. 1 of 2005).

Third, the Court erroneously used the Interpretation Act to read words into the Constitution. On page 22 of its judgement, it held that

[U]nder the lnterpretation Act, cap 3, the word "court" is defined as a court of competent jurisdiction in Uganda. This would mean that under Article 23(6) (c) of the constitution, since the Article refers to offences triable only by the High Court, it would follow that 'the court' referred to in the latter part of the article must be the court of competent jurisdiction which is the High Court.

The Interpretation Act cannot be used to interpret the Constitution. That Act was enacted to provide for the law relating to the construction and interpretation of Acts of Parliament and subsidiary legislation - not the Constitution. The Interpretation Act itself provides that it cannot be used to Interpret the Constitution. Section 1(3) of that Act provides that ‘[t]his Act shall not apply for the construction or interpretation of the constitutional instruments’. Section 2 defines the phrase ‘constitutional instruments’ to mean the Uganda Independence Act, 1962, and the Constitution.

It is on these grounds that we have decided to reprint an excerpt from our January Report on the State of Constitutionalism in Uganda during that month. This excerpt, while predating the Court’s decision, critically examined the Principal Judges’ Circular and the Bail Guidelines and concluded that the requirement for persons accused of capital offences to apply for mandatory bail was unconstitutional. We hope this reprinted report excerpt and our commentary will contribute meaningfully to the ongoing debate on mandatory bail and shed light on why the Constitutional Court's holding in Asingwire Alex Mukasa v Attorney General regarding these guidelines should be viewed as erroneous.

Mandatory Bail and the Principal Judge’s Administrative Circular

1. Introduction

The office of the Principal Judge is created by Article 141 of the Constitution which designates that judicial officer as the ‘head of the High Court’, and also has the duty to assist the Chief Justice in the administration of the High Court and subordinate courts. Subordinate courts include Magistrates Courts which were created by parliament under Article 129(1)(d) of the Constitution. (Tusingwire v Attorney General)

Thus, the principal judge may direct both judges of the High Court and magistrates of the lower bench on matters of administration. The practice has usually been by way of issuance of administrative circulars and practice directions. It is on this basis that the Hon Principal Judge, Dr Flavian Zeija issued Administrative Circular No. 02 of 2024 on the 12th of December, 2024.

That circular was intended to offer ‘guidance on the release of bail of accused persons charged with capital offences.’ The Principal Judge directed that magistrates should not grant mandatory bail to persons accused of capital offences because they have no jurisdiction to do so. As authority for this position, he quoted the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022, which provide that mandatory bail in capital offences may only be granted by the High Court.

He strongly cautioned that ‘previously known practice where Magistrates Courts before which capital cases were mentioned released accused persons who had spent over 180 days on remand should not be happening’. This directive has far reaching implications on the right to personal liberty.

2. The Right to Mandatory Bail

The Constitution of Uganda creates the right to bail in Article 23(6). The right to bail is so closely linked to and cannot be separated from other non derogable constitutional rights such as the right to a fair hearing and the presumption of innocence (Solomon Muhirwa v Uganda). There are two types of bail: discretionary bail, and mandatory bail (Uganda v Kiiza Besigye). A court may refuse to grant discretionary bail, but it may not decline an application for mandatory bail. The cardinal importance of this right is reflected in the words of Justice Ogoola in a 2005 case he decided:

Liberty is the very essence of freedom and democracy. In our Constitutional matrix here in Uganda, Liberty looms large. The liberty of one, is the liberty of all. The liberty of any one must never be curtailed lightly, wantonly or even worse, arbitrarily. Article 23, Clause (6) of the Constitution grants a person who is deprived of his or her liberty, the right to apply to a competent Court of law for the grant of bail. The courts from which such a person seeks refuge and solace should be extremely wary of sending such a person away empty handed – except of course for good cause. Ours are courts of justice. Ours is the duty and privilege to jealously and courageously guard and defend the rights of all, in spite of all.

Mandatory Bail is provided for in Article 23(6)(b), providing that a person charged with a minor offence is entitled to mandatory bail after having spent 60 days on remand before their trial begins. And Article 23(6)(c) provides that a person charged with a capital offence is entitled to mandatory bail after having spent 180 days on remand before their case is committed to the High Court for trial.

The concept of mandatory bail is so important that in 2006, the legislature in its wisdom amended the constitution to reduce the time that one needs to satisfy to be eligible for mandatory bail from 360 days to 180 days and from 120 days to 60 days for capital and non-capital offences respectively. This type of bail was created by the constitution to guard against long delays before a person can be brought to trial. It is thus intrinsic with the absolute, and non derogable right for a person to be granted a speedy trial.

The grant of mandatory bail is not discretionary. The court has no option to deny bail where a person has spent the required time on remand and their trial has not commenced. The Constitutional Court in Uganda v Kiiza Besigye held that when it comes to mandatory bail, ‘the court has no discretion to grant or not to grant bail after the accused has shown that he/she has been on remand in custody for 60 days before trial or 180 days before committal to the High Court’. The court only has discretion to set the conditions for the grant of bail, such as the amount of the bond to be executed or require that the accused have sureties so that he does not abscond (Sentongo v Uganda). But even then, this discretion has to be exercised judiciously and not wantonly, arbitrarily, or maliciously. An applicant for mandatory bail need not even prove any grounds for bail they also do not need to prove exceptional circumstances, they are entitled to bail as of right (Kinyambila v Uganda).

3. Commentary

Having established that the court has a limited role in granting mandatory bail – that is to merely set reasonable conditions such that an accused does not abscond – there is no reason why the High Court should have the preserve to grant bail in capital offences while a magistrate court may only grant bail in non-capital offences. This position is superfluous because of the following reasons.

The argument that proponents of the position of the principal judge front is that since the only High Court has jurisdiction to hear capital offences, then it alone should be able to grant bail to such persons. But this argument falls on three grounds, first, Magistrate courts through the committal process deal with many pretrial matters before the trial of an accused is committed to the High Court. These range from the mention of cases, enquiries on whether investigations are complete and the disclosure of evidence against the accused. Bail by its very nature is also a pretrial remedy that can effectively be handled by a magistrate court. Second, Magistrate courts have been granting bail to persons accused of capital offences since time immemorial, there has never been an irregularity and persons have not absconded, why should they now be divested of jurisdiction (ASF, 2023) Third, the court plays a very limited role in mandatory bail, it merely sets conditions for a grant, but has no discretion to refuse a grant of bail (Nyangoma v Uganda). As such, any court of judicature can release a person on mandatory bail, it does not need to be the High Court because there is no jurisdictional exercise of discretion as to whether grant or not grant.

The position seems to only have changed with the enactment of the Constitution (Bail Guidelines tor Courts of Judicature) (Practice) Directions, 2022. Practice Direction 10(3) provides that ‘for the avoidance of doubt, mandatory release on bail for offences triable by the High Court under article 23(6)(c) of the Constitution shall be granted only by the High Court.’ This is the only legal provision that the Principal Judge cited as a basis for his direction. But this provision does not satisfy constitutional muster.

Mandatory bail is a fundamental right guaranteed by Article 23 of the constitution. When a person applies for mandatory bail, it must be granted. Since it is a fundamental right, mandatory bail is inherent and not granted by the state or any of its organs like the judiciary. This is buttressed by Article 20 of the Constitution which provides that fundamental rights are inherent and not granted by the state.

Having satisfied that it is a fundamental right, any restriction placed on a right under the constitution must be interpreted to be a limitation. And the constitution is very clear about limitations. Any limitation to the enjoyment of human rights must be ‘acceptable and demonstrably justifiable in a free and democratic society’ (Article 43). The test to satisfy this standard was elaborated by the Supreme Court in Onyango Obbo v Attorney General that such a limitation must be provided for by law, it must be necessary or serve a legitimate interest and must be proportionate. This limitation that mandatory bail should only be applied for in the High Court does not satisfy at least two of these grounds.

First the Bail Guidelines which prescribe this rule are not binding on any court. They are merely directory and establish no hard fast rule of operation. Evidence for this is found in the name of the document itself, the use of words like ‘guidelines’ and ‘practice directions’ shows that those provisions are not and were never meant to be mandatory. As such, they cannot create an exclusive jurisdiction of the High Court to hear mandatory bail applications in capital offences, nor can they effectively divest Magistrates of their jurisdiction to entertain and grant bail applications. As things are currently, the correct position of the law is that both High Court Judges and Magistrate Courts have the jurisdiction to hear and grant bail applications in cases for persons charged with capital and non-capital offences.

The limitation is not necessary and serves no legitimate interest. There is no proof to show that when magistrates grant bail, the accused persons abscond or that high court judges can set better bail conditions that serve the interests of justice than those which magistrates set. It thus serves no legitimate aim.

Any limitation on the right to mandatory bail must also be proportionate, that a limitation must not place an undue burden on the right or make the right illusory or hard to obtain for those that seek to realize it. But this is exactly what the impugned rule creates. It imposes more burdensome technicalities on the grant of mandatory bail. Note that persons who seek mandatory bail have already spent a substantial amount of time in remand detention. But this direction would have them spend more time in detention than the constitution prescribes because it creates a regime of technicalities and unnecessary delays. This is inconsistent with the very intention of the framers of the constitution when they created mandatory bail, which was to guard against long periods of pre-trial detention.

How does this direction do this? Firstly, by requiring that all mandatory bail applications in capital cases be filed in the High Court, it subjects bail applicants to more technical rules of procedure and evidence. While bail applications before magistrate courts can be oral, bail applications before the High Court must be written and commenced through a highly technical procedure unknown to most (if not all) persons who are not lawyers. Applications must be commenced by way of notice of motion with an accompanying affidavit. This is inconsistent with Article 126(2)(e) of the constitution which provides that substantive justice shall be administered without undue regard to technicalities.

Technicalities in this case can short circuit and place an undue burden on the realisation of the right to mandatory bail. Majority of persons accused of capital offences cannot afford the expensive services of a lawyer, nor are they familiar with court procedure. The principal judge recognises this error and tries to cure it by attaching template copies of the court forms to his circular. He instructs that all prison officials ensure that the same be distributed to persons in prisons. But with the logistical challenges that the prison institutions face, this is highly unlikely. Worst of all, it does not even address the challenge of illiteracy that some inmates may have and as such can neither speak, nor write in English. Persons who are visually impaired are affected also. An oral procedure in magistrate courts is easy and flexible and foreclosing this chance to persons accused of capital offences is disproportionate and unduly burdens the right to mandatory bail to the point of making it illusory.

Thus, the problem that bail by the High Court is through a written and technical application procedure, while that before a magistrate may be made orally creates an unjustifiable limitation on this right. This worsens delays in granting, lengthens pretrial detention and unfairly deprives persons of their liberty. It runs afoul of the constitutional principle in judicial adjudication that justice shall not be delayed.

Lastly, the forum of the High Court creates an undue burden on realising the right  because it is riddled with delays and backlog - through and through. According to the Judiciary Annual Performance Report 2024, five out of every ten cases in the High Court are backlogged. This is after using a very lengthy metric that only considers a case backlogged if it has spent more than two years in the system. That is already so generous as in other jurisdictions, a case is considered backlogged if it takes more than six months. The High Court takes an average of three years to decide a case, one would imagine an accused waiting for three or more to get a decision on their bail application. All that time while they are languishing in prison.

By a very sharp contrast, only one in every ten cases is backlogged in Magistrates Courts, these courts are very efficient in delivering justice. They thus remain the best forum to enforce the right to mandatory bail and any action to change that runs afoul of the constitution.