Friday February 21 2014

The right to bail is an inherent human right

By Lizet Vlamings

Dear President Museveni,
The Foundation for Human Rights Initiative (FHRI) wishes to draw your attention to the implications of scrapping bail as a method in reducing crime.

Your Excellency, during the NRM caucus retreat in Kyankwanzi, you expressed your concern regarding the status-quo of crime in the country, and you renewed the call to scrap bail for suspects of rape, defilement and sodomy.

Your Excellency, while FHRI appreciates your commitment to reducing crime in the country, there is no compelling evidence that shows that denying bail to certain suspects will reduce crime. There are other methods that have been proven much more successful in reducing crime, such as reducing poverty and inequality, strengthening the rule of law and decreasing unemployment.

Addressing the root causes of crime would be a more successful approach than imprisoning innocent people, solely because there might be a chance they could commit an(other) offence before the completion of the trial.

Mr President, I would like to emphasise that denying persons bail means imprisoning innocent people. Article 28(3)(a) of the Constitution provides that every person shall be presumed to be innocent until proved guilty or until that person has pleaded guilty. This falls under the right to a fair hearing, a non-derogable right according to the Constitution.

Innocent persons are not to be imprisoned unless there is compelling evidence that their release would interfere with bringing them to justice. Anything more is punitive and in violation of the non-derogable right to a fair hearing.

The implementation of the proposed amendment will also further burden the judiciary and prisons. It will increase the overcrowding in prisons, further stretching the already insufficient facilities, and subsequently bringing about needless suffering of innocent persons awaiting trial.

Considering the current lengthy trial periods, denying persons the right to bail means many innocent persons will languish in prison for months or even years awaiting trial.

Your Excellency, I wish to appeal to you as the head of a family. When imprisoned, persons can no longer provide for their families. The scrapping of bail for such persons will thus not only affect them, but their entire family. Due to the lengthy remand periods, families whose provider is imprisoned for prolonged time awaiting trial are likely to slide into poverty.

Article 23(6) of the Constitution accords the judiciary with the unfettered discretionary power to approve or deny bail to suspects. Mr President, the proposed amendment, therefore, interferes with the independence of the judiciary, infringing on the separation of powers The determination of bail will be placed in the hands of the complainant, police, DPP or anyone else who can bring charges and accuse a person of defilement, rape or sodomy. This person will then be imprisoned until the trial is completed with all the consequences it entails, even if the person turns out to be innocent.

Your Excellency, Parliament has the responsibility to protect the Constitution, and legislate according to the provisions of the Constitution. I, therefore, wish to draw your attention to a number of the Constitution’s provisions:
• Article 21(1): All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.
• Article 20(1): Fundamental rights and freedoms of the individual are inherent and not granted by the State.
• Article 20(2): The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of government and by all persons.

Your Excellency, the right to bail is, therefore, a constitutional right of every Ugandan. It imposes a duty on your government to respect, uphold and promote the right to bail without discrimination.

Mr President, even if the proposed amendment would not be unconstitutional, scrapping bail for certain offences would still not be the best medicine for the illness, as it will not systematically reduce crime. It will simply imprison more suspects who may or may not have committed any crime at all.

FHRI would like to respectfully appeal to you, Mr President, to guarantee that:
• The judiciary remains independent, and the organs and agencies of the State do not interfere with the discretionary power of the courts to grant or deny a person bail.
• No individual is discriminated against on any ground, and that everyone is equal under the law and before the courts and tribunals.
• Legislative processes are made in good faith and in compliance with obligations under the Constitution and international law.
• Methods of crime reduction address root causes rather than symptoms, and do not infringe on fundamental rights of Ugandan citizens.

Ms Vlamings is a researcher with Foundation for Human Rights Initiative.