Bail: The cash making rounds at court

In the past year or so, a good number of people arrested have been released on bail. Most people however wonder if the bail set for some is too high or too low and who deserves bail or not.

“How can a person who has clearly shown that he is a flight risk be granted bail? #Desh Kananura”. This was one of the bitter responses on one of the social networking sites, twitter, to the news that Desh Kananura a suspect in the murder of his employee, Badru Katerega, had been granted bail.

Not many days ago, similar outrage met the granting of bail to city businessman, Hassan Basajjabalaba. Twitter was awash with ridicule of bail and the process of granting it. A seemingly bitter individual not far away wondered: “… how does Bad Black, who stole 11bn get bail of Shs100m while Basajja, who took 180bn & was arrested fleeing, gets Shs60m”

Considering the aforementioned cases, the immediate question that begs to be answered is; what is bail?

Francis Gimara, an advocate with M. B Gimara, Advocates, says that there is no specific law providing for the definition of bail. But, the advocate, states that case law (the laws established by the outcome of former cases) defines bail as an agreement between the applicant, surety and court, to the effect that if the accused is granted bail, the surety will ensure that the accused person attends court. Also, according to Black’s Law Dictionary, bail is defined as a security such as cash or a bond required by a court for the release of a prisoner who must appear at a future time.

According to Erias Kisawuzi, the judiciary spokesperson, bail is a constitutional right.

“Bail is derived from article 28 (3a) of the constitution which states that every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty or until that person has pleaded guilty. Therefore every citizen has a right to bail because despite being accused, he or she is presumed innocent,” elaborates Kisawuzi.

Gimara says that there is no offence under the law for which bail is not granted.

“Court has powers to grant bail during trial for all the offences under the law, except that court has to exercise discretion in granting bail and setting the terms of the bail depending on the nature of the offence and the circumstances of the case,” adding that: “Conditions for bail depends on the discretion of the judicial officer but generally court considers: the gravity of offence; the status of the applicant; the risk of the applicant jumping bail; whether the accused has a fixed abode within the jurisdiction of the court or if he or she is ordinarily a resident outside Uganda; whether the accused has sound securities within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail; whether the accused has on a previous occasion when released on bail failed to comply with the conditions of his or her bail; and whether there are other charges pending against the accused”.

Perhaps it is after appreciating the conditions for granting bail that some members of the public were left puzzled that Kananura who was reportedly on the run could qualify to be granted bail.

Kisawuzi, says he believes that the judicial officer must have thoroughly considered all the conditions for bail, before granting it to Kananura.

“If there is an aggrieved party, they can seek review from the rightful authority. But, I believe that the judicial officer must have considered all the issues that he had to, before granting him bail.”

The judicial spokesperson says that the money set for bail depends on the seriousness of the offence and the value of the subject matter.

“If you have embezzled billions then the amount set for bail should be substantial. In the past, court used to set 10 per cent of the value of the subject matter, but that would be much money. Therefore, the magistrate or judge has the discretion to set the amount for bail. In case an amount set for an individual is high, the individual can apply for its reduction.”

Therefore, why was Shanita Namuyimba a.k.a Bad Black’s bail set higher than Basajjabalaba’s, yet the latter allegedly embezzled more money?

Kisawuzzi says Bad Black had already been convicted whereas Basajjabalaba was not yet convicted. “If one is a convict, the terms for bail are usually stringent compared to one who is accused. Basajjabalaba is being accused. He is not a convict. Bad black is.”