Court asked to declare cash bail illegal

Mr Amos Kuuku, a lawyer, who is also among the petitioners, speaks to journalists at the Constitutional Court, in Kampala on February 21, 2024. PHOTO/ JULIET KIGONGO 

What you need to know:

  • Petitioners say cash bail discriminates against economically disadvantaged individuals, violates their constitutional right to equality, and perpetuates arbitrary detention solely based on financial status.

Three individuals, including Amos Kuuku, a lawyer, have petitioned the Constitutional Court to declare as unlawful a provision within the legal framework mandating prisoners to pay cash bail.
 Other petitioners are former prisoners; Ezekiel Kasule and Frank Barnabas Kajubi.

 The petition partly arises from the current reality where, in line with Section 78(b) of the Magistrates Courts Act, cash is imposed on many applicants for bail who are then kept in custody until the amount set is paid, or when the cash condition is revised by another court.
 The court is now being invited to agree that Section 78(b) of that law contradicts Articles 21 and 126(2)(a) of the Constitution because it is discriminatory, restricts bail to those with means and that it imposes an unreasonable condition.

 “The petitioners aver and contend that the condition of cash bail contravenes and is inconsistent with Article 23 in as far as it imposes cash bail conditions on accused persons that have qualified for mandatory bail upon expiration of the mandatory remand period,” reads the court document.
 Article 2(2) of Uganda’s Constitution states: “If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void”.

 It is in that respect that the petitioners assert that the requirement for cash bail contradicts the Constitution and the presumption of innocence in so far as it confines to prison an accused person who fails to pay before that individual has been convicted of the alleged offence. As such, the petitioners want the Section 78(b) of the said law struck down.

 The trio, therefore, also want the Constitutional Court to order for the release of all prisoners still on remand for having failed to pay cash bail. 
Also, they seek “…an order against the respondent to compensate the second petitioner (Kasule) for the damage and loss caused by the imposition of an arbitrary condition of cash bail under the High Court criminal application 0176 of 2020”.

 In a sworn statement, Mr Kuuku speaks to the arbitrariness of the existing legal situation, saying “as an advocate, I have represented a sizeable number of accused persons in bail applications and many have been granted bail but continued in detention because of inability to pay”.

 He also highlights that individuals unable to pay bail are subjected to additional burdensome and costly criminal law procedures, including filing revision applications and processing production warrants for release orders.
Mr Kuuku tells the court that the continued remand of persons undergoing trial just because they cannot pay bail cash is discriminatory against them for being poor. 

He says this runs counter to Article 21 of the Constitution, which says all people are equal before the law and will not be discriminated against on grounds of economic standing, among others.
 The Attorney General will have seven days within which to respond once he is served with court summonses over the matter.