The Constitutional Court has dismissed a petition that sought to abolish the imposition of cash bail in Uganda’s judicial system, ruling that the practice is not unconstitutional and remains within the discretion of judicial officers when granting bail.
The five-judge panel led by Deputy Chief Justice Dr. Flavian Zeija unanimously held that Section 78(b) of the Magistrates Courts Act and the relevant provisions of the 2022 Bail Guidelines for Courts of Judicature do not contravene the Constitution. Other Justices are Fredrick Egonda-Ntende, Ketrah Kitariisibwa Katunguka, Florence Nakachwa, and John Mike Musisi.
Delivering the lead judgment, Justice Nakachwa ruled that while every accused person has the constitutional right to apply for bail, the law allows courts to impose reasonable conditions, including cash deposits, to ensure attendance at trial.
‘Although an accused person has a right to apply for bail, it does not necessarily follow that one is automatically entitled to it,’ Justice Nakachwa stated. Adding, ‘The rationale behind granting cash bail is to balance the accused person’s right to liberty with the need to ensure their appearance in court and to prevent obstruction of justice.’ She emphasized that cash bail serves as a deterrent against absconding and as a mechanism to promote respect for the law. ‘Delinquent behavior will be avoided if members of the public know that release on bail may require payment of a cash bond. This financial pinch leads to obedience to the law and the promotion of the rule of law,’ she said.
The petition had been filed by Mr. Amos Kuuku, an advocate, Mr. Ezekiel Kasule, and Mr. Frank Barnabas Kajubi, who argued that Section 78(b) of the Magistrates Courts Act and Guidelines 23 to 28 of the Bail Guidelines (Practice) Directions, 2022, were inconsistent with Articles 21, 23(6), and 28(3) of the Constitution.
They contended that cash bail discriminates against indigent accused persons, prolongs remand periods, and contributes to prison congestion since those unable to pay remain in custody despite being granted bail. In their affidavits, the petitioners cited instances where they or other accused persons remained on remand for months or years because they could not raise bail money. They asked the Court to declare the provisions unconstitutional and to direct the release of all prisoners detained for failure to pay cash bail.
However, the Attorney General, represented by Counsel Richard Adrole and Jackie Amusugut, defended the law, saying that courts retain discretion to impose bail conditions they deem reasonable under Article 23(6) of the Constitution.
‘The right to bail is not automatic; whether rich or poor, all persons have the right to apply for bail, and the decision whether or not to grant it depends on the court’s discretion after considering the circumstances of each case,’ the State argued. The State further warned that removing cash bail could undermine the administration of justice. ‘Should cash bail be scrapped, it would cause mayhem. Accused persons will not fear absconding court sittings, and the public may lose confidence in the justice system,’ the Attorney General’s lawyers submitted.
In her judgment, Justice Nakachwa agreed with the State’s position, ruling that cash bail is a legitimate and constitutional condition of release.
‘The imposition of cash bail is one of the legal considerations for bail and hence not inconsistent with or in contravention of any provisions of the Constitution,’ she held. Adding, ‘Banning cash bail would stifle court’s discretion in bail applications. Had Parliament intended that bail bond be non-cash, it would have said so.’
The Court also rejected the petitioners’ plea for compensation, finding that any person who pays cash bail is entitled to a refund upon conclusion of the case, provided they comply with bail terms.
‘The issue of compensation for property sold off in order to raise bail money is misplaced. A civil court would require proof of such allegations. The 2nd petitioner has a remedy of claiming a refund of the bail money at the end of his criminal trial if he does not abscond,’ Justice Nakachwa stated.
In a concurring opinion, Justice Egonda-Ntende agreed that the petition lacked merit but noted that an unreasonable cash bail order in a particular case could amount to a constitutional violation.
‘A wrong application of Section 78 may result in a particular decision being unconstitutional. Where an order for a cash deposit is made without inquiry into an accused’s means to pay, it may be unreasonable and potentially unconstitutional,’ he observed.
However, Deputy Chief Justice Zeija disagreed with that interpretation, stating that it would be impractical for courts to conduct financial inquiries during bail hearings. ‘It would be impractical for a judicial officer to inquire into an individual’s financial ability during a bail application. Such an inquiry would turn into a trial within a trial,’ he said.
Justices Katariisibwa and Musisi both concurred with Justice Nakachwa’s lead judgment, agreeing that the petition be dismissed and each party bear their own costs. Concluding the unanimous decision, the Court declared the petition lacks merit and is hereby dismissed with no order as to costs, since this is a public interest litigation.
The ruling, delivered at the Constitutional Court in Kampala, effectively upholds Uganda’s cash bail system, affirming that the practice remains constitutional, discretionary, and refundable, and that courts must continue to exercise that discretion judiciously and reasonably.