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For several years, President Yoweri Museveni has been an unwavering advocate for the scrapping of bail especially for people accused of capital offences. He describes it a “provocation” to release someone accused of murder for example. The President’s (unpopular) stand on this matter has raised a lot of eyebrows with several pundits weighing in on the matter. While various legal and political arguments have been made in regard to the on-going debates on bail in Uganda, this article provides a brief historical and conceptual foundation to provide clarity on the matter.
The history of bail is closely tied to the ancient Roman dispute resolution practice of blood feud in which an aggrieved person, together with his/her family pursued private wars against an accused person or their family until they were all killed. It is reported that following the collapse of the Roman Empire in fifth century, Germanic tribes the Angles, the Saxons, and the Jutes migrated to Britain and maintained this tradition of settling disputes. Later, these tribes realised that this form of justice was deadly and costly so they opted for the compensation-based model. Initially, compensation was based on goods but later, money was introduced. The advent of money birthed the idea of ‘wergeld’ i.e. ‘man price’. This basically connotes the amount of payment by a person who has committed an offense to the injured party or their family.
The ‘wergeld’ system was characterised by payment of substantial amounts of money which oftentimes could not be made at once. As such, according to Hermine Meyer, the offender through his family had to provide sureties to guarantee that the payment will be made. If accepted, the offender, alongside the surety met the aggrieved party whereupon the offender gives a token like a stick to demonstrate acceptance of responsibility. The aggrieved party would then hand it over to surety to indicate his recognition of surety as a trustee for the debt.
While there have been changes over the years, it is undeniable that the current practices on bail derive inspiration from this ancient system. For example, the role of sureties was to ensure the offender complied with their obligations to the aggrieved party. Similarly, the notion itself is that the offender got temporal freedom and was presumed to be technically under ‘continued custody’ until he discharged the burden. From that historical lens, the purpose of bail was two-fold: prevent blood shed and enable the offender to make payments in instalments since the amount was always too high.
Fast forward, while the practices could be similar, the concept of bail in the contemporary world has since evolved and taken on a human rights angle. It is the release of an accused from detention pending trial. It is usually granted for short periods and renewed regularly by Court. In it lie two core principles: presumption of innocence and the right to liberty.
The first principle postulates that while one can only be punished for violating any laws, he/she is only considered guilty when the judiciary, based on satisfactory legal evidence, finds the accused guilty or that the accused has confessed to the crime. This means that until then, even if someone has been accused, he/she is still considered innocent in the eyes of the law. The underlying notion is to prevent people from being punished before being found guilty of the crime they are accused of. This principle acts as a critical tool for checking government’s powers which can be abused by some elements in the State machinery. It thus protects the rights of the accused from being abused at all times during the trial process which often entails lengthy investigations.
The second principle – right to liberty – stresses that when someone is arrested, they should be informed of the reason for their charges. Their trial must quick within a reasonable time. The idea here is that because someone is still considered innocent, it is wrong to punish them through detention which would be parallel to their right to freedom of movement and personal liberty. It is therefore important that the bail process must factor in the weight of depriving someone of their freedom as they await trial. It is thus deductible that bail has no leanings on the guilt or lack of it of the accused. All court needs to do is to evaluate the rights of the accused in contrast to the risk their freedom might pose to society or the case beforehand.
In summing up, while the Government of Uganda through Parliament retains the power to make laws, it is constitutionally bound to legislate judiciously and for the good governance of the country. In the context of amending the bail legal regime in Uganda, it therefore follows that the government must make laws that uphold the true purpose of bail and ensure that such laws remain appropriate for securing those objectives.