Cash bail unfair to the poor, petitioners tell Constitutional Court
What you need to know:
- Through their legal team, the petitioners argue that the current bail regime violates the constitutional presumption of innocence and effectively punishes poverty.
Three concerned citizens, including a city lawyer and two former inmates, have petitioned the Constitutional Court to declare cash bail unconstitutional, arguing that it discriminates against the poor and violates multiple rights under the Constitution.
Lawyer Amos Kuuku, alongside Ezekiel Kasule and Frank Barnabas Kajubi, contend that Section 78(b) of the Magistrates Courts Act and specific provisions of the 2022 Constitution (Bail Guidelines for Courts of Judicature) unfairly target indigent suspects by mandating cash payments as a condition for their release on bail.
“The condition of cash bail contravenes and is inconsistent with Article 23 of the Constitution in as far as it imposes a financial requirement on accused persons who have qualified for mandatory bail upon expiration of the remand period,” the petition states.
Through their legal team, the petitioners argue that the current bail regime violates the constitutional presumption of innocence and effectively punishes poverty. They cite discrimination contrary to Article 21, noting that poor suspects remain incarcerated while wealthier individuals walk free.
Mr Kuuku, in a sworn affidavit, noted: “As an advocate, I have represented a sizable number of accused persons in bail applications. Many have been granted bail but continued in detention because of inability to pay.”
He added that this leads to unnecessary and costly legal proceedings such as revision applications and production warrants, simply because the accused cannot meet the cash requirement.
The petitioners are also seeking a court order for the release of all remand prisoners who remain in custody solely due to their inability to pay cash bail. Additionally, they demand compensation for Mr Kasule, who they claim was unlawfully detained in 2020 due to a High Court-imposed cash bail.
In response, the Attorney General has denied all allegations, stating that the petition does not raise any valid constitutional issue. “The right to bail is not automatic and is merely an exercise of discretion by court,” the official response reads.
Senior State Attorney Suzan Akello Apita, in a supporting affidavit, defended the existing bail guidelines, saying they promote uniformity and help reduce pretrial detention while ensuring compliance with the Constitution.
She argued that courts impose cash bail to “secure attendance at trial, prevent recurrences of crime, and safeguard the integrity of the justice system.” She emphasized that bail decisions are made on a case-by-case basis, and not all accused persons are required to pay cash.
“The Constitution provides for the right to apply for bail, but the conditions are determined by the court’s discretion taking into account the nature of the offence, likelihood of absconding, and other factors,” she stated.
A panel of five justices, led by Deputy Chief Justice Dr Flavian Zeija, has fixed the ruling on notice.
