On Liberty: deferment of bail rulings 

On Friday 20th October 2023, a scenario played itself out before the Kampala City Hall Court.

A one – David Balondemu – was charged with obtaining money by false pretences and conspiracy to commit a felony. He denied the charges, and applied for bail. Instead of delivering an immediate decision regarding his application, the Magistrate deferred the determination of this question to 6th November 2023.

That means that Mr. Balondemu will have to wait for 18 days before he can learn whether he will be allowed to continue to experience a measure of liberty pending his trial or face trial while in prison. In all likelihood, Mr. Balondemu will eventually be granted bail – either on 6th November or a couple of days or weeks later – depending on the level of his determination or that of his lawyers.

For the Magistrate, this decision – to defer his ruling by a couple of days – was likely only one of several judicial determinations he had to make that day. Indeed, he might forget this case in a few weeks or months. For Mr. Balondemu, however, the memory of that day and the consequences flowing from it, will likely be one he takes to his grave.

Likewise for his immediate family, every minute he spends in detention will be one very keenly felt. Now, I do not know Mr. Balondemu. I have never met him. In fact, until last week, I was unaware of his existence – as he probably was (or is) unaware of mine. However, one need not know Mr. Balondemu to recognize the deep injustice he suffered last week.

Of course, the crimes with which Mr. Balondemu is charged are serious ones. I do not know whether he is innocent or guilty of them. At the moment, only Mr. Balondemu, and perhaps, any victims of, or witnesses to, those alleged crimes know the truth of the matter.

Under Uganda’s system of justice, the determination of his guilt or innocence is one to be made by the courts of law. According to Article 28 (3) (a) of the Constitution, while that determination is pending, or until he pleads guilty, Mr. Balondemu must be presumed to be innocent. Further, in terms of Article 28 (1), Mr. Balondemu has the right, among other guarantees of a fair hearing, to a speedy trial.

Unfortunately, the reality of Uganda – for various reasons – is that trials usually take a long time. The judiciary is perennially grappling with the problem of case backlog – defined in our context as a case which has been in the system for more than 2 years (incidentally, in Kenya, a case is considered as falling in this category after one year in the system).

In fact, some cases (even criminal ones) may take several years to be disposed of. Some insight into the significance of this problem is provided by the case of Dennis Sseremba v Uganda, Criminal Appeal No.480 of 2017. In that case, in a decision rendered on 3rd November 2021, a panel of three Justices of the Court of Appeal – Frederick Egonda-Ntende, Catherine Bamugemereire and Christopher Madrama – set aside the appellant’s 2017 conviction for aggravated robbery.

At the end of its decision, the Court of Appeal felt compelled to make the following observation: ‘Before we take leave of this case, we must note that we are gripped with some measure of angst over the delays in our criminal justice system. The offences in this matter were committed in 2012 and the accused persons were taken into custody almost immediately.

A trial occurred 5 years later in which this appellant was convicted and the other accused persons acquitted and released. The appellant has spent another 5 years in custody before his appeal was heard. After 10 years in custody, he is told that you were wrongly convicted.

This type of delay is ruinous and unjust to anyone’s life caught up in the criminal justice system of our country. It behooves those responsible for this state of affairs to change course and return to the promise of our constitution of speedy trials.’

Unfortunately, in a strange twist of fate, the Court of Appeal was faced with another Sseremba-like scenario last week, in the case of Godfrey Isingoma and Rogers Kasaija v Uganda, Criminal Appeals Nos. 497 and 501 of 2017. On 16th October 2023, in setting aside the appellants’ convictions for rape and aggravated robbery, the Justices of Appeal (Frederick Egonda- Ntende, Catherine Bamugemereire and Monica Mugenyi) again were forced to comment on the gross violations of liberty entailed in the Ugandan criminal justice system: ‘We take leave of this appeal with a significant amount of trepidation. The appellants were arrested about 12 years ago in 2011.

It has taken the wheels of justice this long to find them innocent of the charges raised against them. For all this time they have been in detention. If this were a lone case one would assume that lessons have been learnt. Unfortunately, that is not the case. In this session alone two appeals collapsed as the appellants had served their sentences of 17 years and 18 years’ imprisonment respectively.

His is merely the cusp of a state of lethargy devouring the justice system …

It is a national scandal of epic proportions.’ While it was honourable for the Court of Appeal to recognize the significance of the injustice experienced by Messrs. Sseremba, Isingoma and Kasaija, there was evidently no remedy available from the Court to them. And here we have another real legal problem – while the Constitution envisages some remedies for the deprivation of liberty, it did not quite account for lapses in judicial alacrity in this regard.

For instance, while Article 23 (8) provides that ‘[w]here a person is convicted and sentenced to a term of imprisonment for an offence, any
period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment’ – evidently, one can only obtain the benefit of this provision if they are actually convicted of the offence with which they are charged.

It is only a remedy for those eventually found guilty – which is completely unavailing to persons eventually determined to be innocent. Perhaps the closest foundation for a remedy might be located in Article 23 (7), which is to the effect that ‘[a] person unlawfully arrested, restricted or detained by any other person or authority, shall be entitled to compensation from that other person or authority whether it is the State or an agency of the State or other person or authority.’

While this would clearly cover such circumstances as detention in an ungazetted place (Article 23 (2)), or for a period longer than 48 hours before production before court (Article 23 (4)), it is not completely clear that it would cover the difficulty faced by Mr. Balondemu last week, or the manifest injustice suffered by Sseremba (from 2012 to 2021) and Isingoma and Kasaija (from 2011-2023).

In Mr. Balondemu’s case, the difficulty is especially compounded by the fact that from a reading of the Constitution (Article 23 (6)), and from the preponderance of relevant case law on the point, the constitutional right is one to apply for bail, as opposed to a right to be granted bail.

It appears that an affirmative right to release on bail – even in the absence of an application on their part – only arises when a person has spent 60 days on pre-trial remand, in the case of an offence triable both the High Court and a subordinate court (Article 23 (6) (b)), or 180 days on pre-committal remand, in the case of an offence triable only by the High Court (Article 23 (6)(c)).

And so it is that the liberty of a citizen ‘caught up in the criminal justice system of our country’ (to use the language of the Court in Sseremba’s case) is very much dependent on the mercy and industry of the judicial officer(s) before whom they appear.

Like the equity of Old England, one’s prospects for liberty might vary with the length of the judicial officer’s foot. This cannot be right. At its core, the Magistrate’s deferral of his decision on bail essentially subjects Mr. Balondemu to pre-trial punishment: detention for at least 18 days. These are days he will never get back.

And, if he is eventually found innocent, this is an injustice which can never be effectively remedied. This is not to mention the other problematic features that are a reality of Uganda’s systems for detention – whether in police cells or in prison proper: bullying by warders or fellow detainees, and the possibility of sexual assault (which may or may not result in sexually transmitted diseases – including HIV/AIDS).

For Mr. Balondemu, every day spent in detention – waiting for the Magistrate to decide whether he is entitled to bail or not – is one which may change his life in unalterable ways. We are, all of us, only one mistake away from standing in the place Mr. Balondemu stood last week.

Actually, in many cases, one might stand in that position without any fault on one’s part – due to the malice, negligence or sheer incompetence of others. It is a fate which has been faced by Members of Parliament, Ministers (current and former), judicial officers (past and present) – and many other Ugandan citizens.

It is in our collective interest that liberty – a fundamental constitutional value (one which finds expression even in our national anthem, in which Uganda is expressed to be ‘the land of freedom’) – is not casually whittled away by bureaucratic discretion or sacrificed at the altar of a judicial officer’s calendar.

To his credit, the Chief Justice Alfonse Owiny-Dollo has recognized, and communicated – in an address to newly appointed judicial officers at the High Court on 2nd October 2023 – the need for Magistrates and Judges to ‘deal with bail applications promptly and conscientiously’.

It is my sincere hope that this exhortation is taken to heart by the Ugandan judiciary. A true respect for liberty, as a constitutional value and human right, requires that decisions as to bail be rendered – for better or for worse – as soon as such applications are made.

There must be a duty to decide immediately, or within a few hours at most, as to the merits (or lack thereof) of a bail application. The detailed reasons for the grant or denial of bail can always be delivered later, at the judicial officer’s discretion. It is the reasons – not the actual determination of the bail application – which should be deferrable.

In closing, I wonder whether the change in practice advocated by the Chief Justice can be achieved without some rather creative approaches to the induction of new judicial officers. It might very well be the case that if every judicial officer were required – as a part of their formal induction process – to spend at least one night in a detention facility, some urgency might be infused into the mechanisms for determining bail applications.

That experience might be extremely helpful in terms of helping judicial officers to appreciate the true meaning and importance of liberty – and the real impact of its (even temporary) deprivation.

The writer is senior lecturer and acting director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.