Mabaati-gate scandal: Time to amend the law to provide for anticipatory bail

Let’s first agree on one thing about the Mabaati-gate scandal: there is really no point detaining ministers for days at police stations and then remanding them to prison when they could – and should – be out on bail. The strategic intent and the ultimate effect are both morally wrong and bad in law.

This is a simple matter involving iron sheets: no one has been murdered or maimed or whatever. No violence involved – so why, apart from an uncanny desire to humiliate the ministers and kill them politically – would you deny them their liberty, under a constitutional dispensation that presumes innocence?
Point is, this is a good time to sell the idea of legislative reform to include what is called “anticipatory bail” – kind of like what obtains in India.

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Minister Kitutu granted bail

This means you can apply to the High Court for bail when you have good reason to suspect that you are likely to be arrested for an offence or offences in respect of facts that you are reasonably aware about.
The thing about the Mabaati-gate scandal is that, going by the record so far, there is a possibility about a third of Cabinet, several members of Parliament and a good number in the civil service will end up in court. It is therefore easy for those who have been named in this scandal to discern that an arrest and prosecution are on the cards – you don’t need Elvis Mbonye to issue a prophecy in such matters. 

There is one problem of course here: police will wait until Friday to arrest you, so that they can enjoy you for the weekend in their cells. That’s three or four days inside…and it is even unconstitutional. Then they’ll arraign you in court, whereupon you will be denied bail for a variety of reasons. By the time you finally make bail – if ever you do that is – quite a bit of time will have passed. And unfortunately, we have not made our prisons the kind of places we’d feel comfortable to live in. Now that’s silly, and probably the only reason one gets glad that high profile people are going there, because then they will listen to us next time we ask that prison conditions be improved. By the way, even for simple offences, when the state wants to pin you down, they will take you to court in the late afternoon when any magistrate will find it between difficult and impossible to hear a bail application, and you will have to end up in prison. 

So how would anticipatory bail work?
Such applications would, preferably, only be entertained by the High Court, regardless of whether the anticipated trial will take place in the High Court or a subordinate court – like Magistrates Court or the General Court Martial and the military courts below it. 

The applicant would have to prove to the High Court, by disclosing certain facts - presumably by affidavit - that they have good reason to believe that they are about to be arrested and charged with this or that offence. The High Court would inquire into the matter and if satisfied that the applicant has a good case, grant bail in respect of not one, but a range of offences directly related to the facts on the record. The same terms and conditions for ordinary bail applications would arguably apply: furnish reasonable sureties and be bonded cash or non-cash. The applicant would then not have to get stressed applying for bail when the matter comes for plea taking, especially since for political cases, the state wants you to first bleed a little.

The bail may carry conditions including that the applicant shall make themselves available for interviews at police. They would also undertake not to interfere with investigations or with possible witnesses and not to leave the country without leave of court.

Once we make it possible for people to pursue anticipatory bail, it will make it easier for them to cooperate with investigating authorities; because they know they will, at worst, turn up in court, take plea and walk back home; and continue working, even as inquiries continue. Key statistic: to get a case in Uganda where police arrest you after inquiries are complete, you will need to check at least a million cases. Which makes anticipatory bail of even more strategic importance to everyone.

Mr Tegulle is an advocate of the High Court of Uganda     [email protected]