In a landmark case, two concerned citizens, Kasule Ezekiel and Kajubi Frank Barnabas, along with city attorney Kuku Amos, have jointly petitioned the constitutional court to nullify Section 78(b) of the Magistrates Courts Act, Cap. 16, which allows judicial officers to ask for a deposit of cash instead of executing a non-cash bond.
This cooperative endeavor highlights the public’s and legal professionals’ growing discontent with the practice of judicial officers charging high deposits for bonds. Therefore, in their Constitutional Petition, the three challenge the legality of cash bail conditions in light of human rights provisions embedded under Chapter 4 of the Constitution of the Republic of Uganda, 1995 (as amended).
The petitioners argue that cash bail mates a lot of injustices against accused persons under the Criminal Justice System and depicts the concept of commercialization of human rights akin to justice for sale. Prisoners who are granted bail with cash conditions are further remanded for a simple reason of inability to pay.
The petitioners include Mr. Kuuku Amos, a lawyer and public interest litigation practitioner; Mr. Kasule Ezekeil, a victim of cash bail condition; and Mr. Kajubi Frank, a victim of cash bail condition who has been on remand for a long period that qualifies him for mandatory bail.
Section.78(b) of the Magistrates Courts Act, Cap.16 states that “when any person is required by any court or officer to execute a bond, with or without sureties, that court or officer may (except in the case of a bond for good behavior) permit that person (b) to deposit a sum of money to such amount as the court or officer may fix, in lieu of executing such a bond.”
In the petition filed, the petitioners also contend that Section 78(b) of the Magistrates Courts Act is in contravention of Article 21 of the Constitution because it is discriminatory against the poor compared to those with the resources and capacity to pay as and when cash is set as a condition for their bail.
The three also urge that cash bail also contravenes Article 23(6) because it is unreasonable for a court of justice to require a person to pay a specific amount of money without first investigating whether that person has capacity to pay, and further contravenes Article 28 because it violates the right to a fair hearing and defeats the presumption of innocence.
“The Petitioners contend that Section 78(b) of the Magistrates Courts Act, Cap. 16, is inconsistent and that they pay a specific amount of money without first investigating whether that person has the capacity to pay, which further contravenes Article 28 because it violates the right to a fair hearing and defeats the presumption of innocence.
“The petitioners contend that Section 78(b) of the Magistrates Courts Act, Cap. 16, is inconsistent and in contravention of Article 126(2)(a) of the Constitution in so far as it restricts access to bail relief based on economic status,” the petition reads in part.
The petitioners further state that the condition of cash bail contravenes and is inconsistent with Article 23(6)(b)(c) of the Constitution in so far as it imposes a cash bail condition on accused persons that have qualified for mandatory bail upon expiration of the mandatory remand period.
The petitioners state that cash bail conditions are one of the contributing factors to prison congestion, which is currently standing at 75,000 as against the approved capacity of Ugandan prison facilities, which is at 20,000 prisoners. It also prohibits potential bail applicants for fear of cash bail conditions.
They argue that it is unjust to require the bail applicants who have satisfied all the conditions to be granted bail, including: presenting credible and substantial sureties; not interfering with investigations of the case; not posing a threat to public security; not prejudiceing the security of the complainant; not being a flight risk; and that the court requires them to pay money for bail, including those whose remand period has qualified them for mandatory bail.
The petition intends to ensure access to bail relief as a pre-trial remedy for all persons, including the poor, and to eradicate barriers to access to justice for all.
They are seeking orders for the court to declare Section 78(b) of the Magistrates Courts Act, Cap. 16, the practice of imposing cash bail conditions, and Guidelines 23, 24, 25, 26, 27, and 28 of The Constitution (Bail Guidelines For Courts Of Judicature) (Practice) Directions, 2022, inconsistent and in contravention of Articles 21, 23(6)(a) (b) and (c), 28(3)(a), 44(c) & 126(2)(a) of the Constitution of the Republic of Uganda, 1995; and an order directing a review and release on bail and on such other conditions that all prisoners are still on remand for having failed to pay cash as their condition for bail.
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