We should adopt the right to apply for anticipatory bail

For some others, they have been falsely implicated in alleged acts of crime for purposes of keeping them in jail while their tormentors descend on their land and appropriate it for their benefit.

Recently, I have thought carefully, having watched the tense moments that have gripped the Public Service as well as members of the political divide; may be it is about time that we adopted a Law on ‘Anticipatory Bail’.

Towards the end of last year, the nation witnessed a Public Finance scandal that exposed the brighter side of the Criminal Investigations Department of the Uganda Police. But also, a wave of uncertainty did and continues to hover around many of our public servants.

The media was equally sprout with reports of growing tensions among members of the Public Service with uncertainty as to who could be next.

Early into the New Year, Members of Parliament have been caught into the fray. Many have found themselves arrested and detained in Police custody on alleged criminal charges while more arrests, it has been reported, are in the pipeline.

In the course of my routine legal research, I conducted a review of Uganda’s Criminal Procedure Legislation. I was quick to observe that one important provision is amiss – the right to apply for anticipatory bail.
This category of bail, I noted, is also not available in many other jurisdictions. I observed nonetheless that it is provided under the Criminal Procedure Code of India.

In India, the adoption of a law allowing anticipatory bail was premised on the continued practice of some influential persons implicating their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days.

This tendency of false implication was also on the rise due to the accentuation of political rivalry. The Indian authorities therefore found no justification in requiring a person to first submit to custody, remain in prison for some days and then apply for bail for certain categories of alleged offences.

In essence, under such a Law, a Court which is seized with jurisdiction in the matter will order for release of the suspect even prior to his or her arrest!

With such a legal provision, calm could be restored in the minds of those who believe/perceive the threat of persecution from the prosecution organs.

For instance, it is not uncommon for persons to be arrested and detained on remand for alleged commission of treasonous offences and after years of their stay on remand, they are acquitted by the Courts on a finding of ‘no case to answer’. Many times, it transpires that such cases are a matter of victimisation of those involved.

For some others, they have been falsely implicated in alleged acts of crime for purposes of keeping them in jail while their tormentors descend on their land and appropriate it for their benefit.

With a law on anticipatory bail in place, such persons may reserve their right to liberty in advance of their arrest; Members of Parliament would not have to spend nights within the premises of Parliament in order to evade arrest. Yet this is not to suggest that the State, if holding genuine evidence, would be all out of a remedy. The State would still be enabled to apply to a Court of Law to cancel the bail upon presenting a plausible and credible complaint, thereby leading to the arrest of the suspect and detention in custody.

In sum, with the adoption of legal provisions on anticipatory bail, the State will cleanse itself of alleged persecution. The Courts on the other hand would have a preliminary role to play in determining which cases warrant the arrest and detention of suspects. And to many of the ordinary Ugandans, some hope for fairness would be restored within the justice system.

Mr Baluti is a lawyer with Kasirye, Byaruhanga & Co. Advocates.
baluti@lawyer.co.ug