Why Owiny-Dollo’s new proposal on bail is kicking up a storm

There was a time last year when it seemed the most pressing issue on President Museveni’s agenda was for Parliament to push through amendments that would ensure that people accused of capital offences are denied bail.

Between August and October, Mr Museveni summoned his National Resistance Movement (NRM) parliamentary caucus and later his Cabinet, telling them that change of bail laws as we know them is a must.

As the year was winding down, however, he went quiet on the subject which had raised suspicion not just within the Opposition ranks, but also within the NRM.

When he was spelling out NRM’s legislative agenda for this year, Mr Thomas Tayebwa, the ruling party’s Chief Whip, was clear on how the party with an overwhelming majority in Parliament was going to change land laws.

But on bail, he gave away precious little. “We are doing consultations and at an opportune time we shall bring a law,” he said.

While Mr Museveni and his NRM are still coy on how they are to move forward, the Judiciary outed Chief Justice Alfonse Owiny-Dollo’s practice directions that if confirmed will guide judicial officers when they preside over bail applications.

Article 133(b) of the Constitution gives the Chief Justice powers to issue practice directions when it stipulates that “the Chief Justice may issue orders and directions to the courts necessary for the proper and efficient administration of justice”.

The 15-page document entitled ‘Bail Guidelines for Courts of Judicature (Practice) Directions, 2022’ has triggered criticism, with some lawyers and Opposition politicians accusing Justice Owiny-Dollo of doing Mr Museveni’s bidding of making it extremely hard for accused persons to get bail.

“Justice Owiny-Dollo’s instrument is obviously repugnant to the spirit and letter of the Constitution in regards to pre-trial rights of suspects. By issuing this practice direction, he is seeking to rewrite the well-established jurisprudence on matters of bail by overthrowing Constitutional Court decisions in Dr Kizza Besigye and Foundation for Human Rights Initiative,” Mr Erias Lukwago, the Lord Mayor of Kampala, who is also a practicing lawyer, wrote on his verified Facebook page on December 30.

“In essence, this instrument curtails the discretion of the court to grant bail, especially in capital offences where the applicant has to strictly rely on those onerous exceptional circumstances like advanced age and grave illness certified by a medical officer of prisons. This must be resisted.”  

Section 21(2) of these bail guidelines, which lays out the reason’s prosecution must front in order to persuade the court to deny an accused person bail, have got the Opposition and defence lawyers worried.

The section says if the prosecution wants an accused to be denied bail, among other things, it has to prove that the applicant is likely to endanger national security; or that it is in the public interest to detain the applicant in custody.

Human rights lawyer Ladislaus Rwakafuuzi insists that bail guidelines are more political than legal.

“Of course, he is a politician. It’s clear that Museveni knows the referendum can’t succeed, that’s why you see these bail guidelines,” Rwakafuuzi says.

In a statement issued on December 31, 2021, the Judiciary denied that the bail directions are intended to aid Mr Museveni indirectly in dealing away with bail.

“The Judiciary has noted with concern the misleading social media reports that an agreement has been reached between President Yoweri Museveni and the Chief Justice to remove applications of bail,” the statement read in part. “We would like to inform and reassure members of the public that no such position has been reached at all. The information circulating on social media should, therefore, be disregarded because it is false.”

Interviewed for this story, Justice Owiny-Dollo found the criticism strange, saying the document was a draft, thus a work in progress.

“This is a draft document up for discussion with other stakeholders like Uganda Law Society, Director of Public Prosecutions (DPP) and others,” he said. “The guidelines bring out nothing new since they put together the law and guide judicial officers on how to guide bail. Those who say it seeks to take away bail have either never read the document or are evilly dishonest because the Chief Justice has no powers to remove bail. Bail is a constitutional provision and then there are other laws. Unless when he acts through Parliament, the President can’t amend the law. It’s only Parliament that can amend.”

Opposition leader Kizza Besigye, whose various bail applications are said to have liberalised awarding of bail in Uganda’s judicial system, also on his verified social media pages was critical of the proposed guidelines, saying: “Chief Justice Owiny-Dollo takes over Mr M7’s [ Museveni] pursuit of obnoxious drawback on the right to bail. He has made regulations to ‘guide’ courts on bail that clearly violate the Constitution and interpretations already made! Frightfully, challenging this in court ends with him.”

The Judiciary has, however, held firm on this despite repeated pressure from Mr Museveni over the years and Justice Owiny-Dollo has repeated the same stance.

“We know that capital offences are a grave concern to the community,” Justice Owiny-Dollo said last year during the Benedicto Kiwanuka memorial lecture which was attended by President Museveni. “So, in [the] exercise of judicial discretion, it’s the duty of the judicial officer to look at all these circumstances and make a decision whether to grant or not to grant.” 

Put to him that he is being accused of conniving with President Museveni to either make getting bail difficult or entirely removing bail, Justice Owiny-Dollo retorted that they are being “plainly stupid”.

“They have never read the draft document, I have not made a decision at all. I can’t wake up and come up with a draft. We [Judiciary] have a committee which discusses these things,” he said.

“By the way, I’m under no obligation to discuss with them [stakeholders] but I’m putting it under discussion because it’s a popular document. So those speaking like that either don’t understand what bail is about, they have never read the document or if they understand and they have read the document then they are plainly dishonest – they have some ulterior motives.”

Opponents of the practice directions insist if confirmed they will be at loggerheads with earlier court findings that liberalised bail. If approved the way it is, the prosecution will be required to prove that the exception to the right to bail stipulated under Section 15 of the Trial on Indictment Act is applicable to the said applicant. 

The Section 15 stipulates: “Notwithstanding Section 14, the court may refuse to grant bail to a person accused of an offence specified in sub-section(2) if he or she does not prove to the satisfaction of the court—(a) that exceptional circumstances exist justifying his or her release on bail; and (b) that he or she will not abscond when released on bail. The offences specified under sub-section (2) include terrorism, cattle rustling, offences under the Firearms Act, rape, aggravated defilement, embezzlement, causing financial loss, corruption, bribery, and any other offence in respect of which a magistrates’ court has no jurisdiction to grant bail.”

The above provisions make it hard to give bail to people accused of capital offences, but the Constitutional Court had watered them down when the DPP through a constitutional reference challenged the decision by the High Court to give bail to Dr Besigye who was accused of treason in 2005.   

The substance of DPP’s complaint was “whether, under Article 23(6) of the Constitution, courts have the discretion to grant or not to grant bail.”

Mr Richard Buteera, then DPP but now Deputy Chief Justice, had objected to the bail application on two grounds; that the court has the discretion to grant or not to grant bail, pointing out that however in Dr Besigye’s case, there were no exceptional circumstances as stipulated under Section 15 of the Trial on Indictment Act, Cap 23, which would warrant the exercise of court’s discretion in the former presidential candidates’ favour.

Secondly, the DPP insisted that the High Court had given conflicting interpretations of Article 23(6) (a) of the Constitution, thus leading to serious confusion in the lower courts, which are bound by the High Court decisions.

Constitutional Court justices Laetitia Mukasa-Kikonyogo, Galdino Okello, Mpagi Bahigeine, Christine Kitumba and Constance Byamugisha in a move that was applauded as “liberal” ruled which inadvertently weakened Section 15 of the Trial on Indictment Act. 

“The applicant should not be deprived of his/her freedom unreasonably and bail should not be refused merely as a punishment as this would conflict with the presumption of innocence,” the five justices unanimously ruled on September 25, 2006, referring to Dr Besigye.

“The refusal to grant bail should not be based on mere allegations. The grounds must be substantiated. Both High Court and the subordinate courts have discretionary powers to set bail conditions that they deem reasonable, though this must be done with caution. Bail granted,” they ruled. 

Section 15 of the Trial on Incitements Act (TIA) has been under attack from activists, but both the Constitutional and Supreme Court have held that they are constitutional. For instance, the Foundation for Human Rights Initiative (FHRI), a civil society organisation, filed a petition at the Constitutional Court in 2009 saying the section is inconsistent with Articles 20, 23(1), 28(1), and 28(3) of the Constitution, in so far as they impose restrictions and limitations on the person’s right to liberty, freedom of movement, the right to a fair and speedy trial and the presumption of innocence.

FHRI attacked Section 15, insisting that it takes away the judicial discretion of the court to grant bail by restricting the court’s power to grant bail only to the three listed exceptional circumstances provided for in this section. 

They also said automatically barring an accused person who does not meet the above criteria from exercising his or her right to apply for bail and restricting the courts’ power to grant bail only on three listed exceptional circumstances was contrary to Article 23 (6) (a) of the Constitution. 

FHRI lost at the Constitutional Court and appealed to the Supreme Court but the results were the same.

“I further note that Section 15 of the TIA which is challenged by FHRI does not in any way address itself to the accused person’s right to apply for bail which is guaranteed under Article 23(6) of the Constitution. Rather, the major focus of Section 15 of the TIA is on the considerations the court may consider in the course of determining a bail application. Needless to say, the accused person’s right to apply for bail remains preserved. Section 15 of the TIA only comes into operation when the court is considering a bail application. That is after an accused person has exercised his or her right to apply for bail,” Justice Esther Kisaakye, who wrote the lead judgment, said.

“I, therefore, find that Section 15 does not take away an accused person’s right to apply for bail that is guaranteed by Article 23(6) of the Constitution. My finding is further grounded on the fact that Section 15 of the TIA existed prior to the promulgation of the Constitution in 1995.” 

She also dismissed FHRI’s other contention that the TIA interferes with the discretion of the court to grant bail on such terms as the court considers reasonable.

“With respect to bail matters, it, therefore, follows that whereas court is supposed to bear in mind the rights of an accused person when considering his or her bail application, court should not lose sight of the needs and interests of society to prevent and punish crimes committed within its midst. This Article imposes on courts the duty to ensure that they do not only consider the rights of an accused person applying for bail. Rather the court should also consider the interests of society at large,” Justice Kisaakye ruled.

“This in turn calls for the need to balance the competing interests of the accused person on the one hand and society on the other hand. To ensure this balance, courts must at all times when dealing with a bail application bear in mind this fundamental aspect under Article 126 of the Constitution with regard to the exercise of this judicial power.

“Furthermore, it should be noted that the TIA was enacted by Parliament which is constituted by the peoples’ representatives. These peoples’ representatives enacted Section 15 (1) of the TIA which requires that before the court can grant bail to a person accused of serious crimes such as murder, aggravated robbery, treason, terrorism, aggravated defilement, rape, and offences under the Firearms Act, exceptional circumstances should exist justifying his or her release on bail and that he or she will not abscond when released on bail.”

When Justice Owiny-Dollo’s guidelines are passed, it’s probable that activists who prefers a relaxed awarding of bail will be back to court.

Reaction 

‘‘Justice Owiny-Dollo’s instrument is obviously repugnant to the spirit and letter of the Constitution in regards to pre-trial rights of suspects. By issuing this practice direction, he is seeking to rewrite the well-established jurisprudence on matters of bail by overthrowing Constitutional Court decisions in Dr Kizza Besigye and Foundation for Human Rights Initiative. In essence, this instrument curtails the discretion of the court to grant bail,’’ Mr Erias Lukwago, the Lord Mayor of Kampala.