Kasule Ezekeil, a Ugandan citizen was in 2020 arrested, charged and granted a cash bail of shs5 million as a condition to regain his freedom since he was still a suspect.
However, Kasule remained imprisoned for the next 18 months since he couldn’t raise the require money by the court.
“I was kept in prison until May 2022 after selling my land and my car. That’s a lot of time. This condition affects a common person,” he told the press on Tuesday as him and a group of lawyers petitioned against the condition.
“We appeal to the court to consider this serious matter so that we can all enjoy our rights because so many people are still in prison because they can’t afford cash bail.”
Section 78 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 behaviour) permit that person — (a) to deposit any specific article or property; or (b) to deposit a sum of money to such amount as the court or officer may fix, in line of executing such a bond.
Coming to the rescue of the likes of Kasule, a group of lawyers led by Counsel Kuuku Amos, an Advocate of the High Court of Uganda ran to the constitutional court seeking nullification of the cash bail condition noting that it has an effect of discrimination and restricts access to bail relief based on economic status.
“We have filed a constitutional petition challenging the legality and constitutionality of cash bail condition in the criminal justice system of Uganda, in light of the provisions under Chapter Four of our Constitution of the Republic of Uganda 1995. Cash bail has caused a lot of injustice against accused persons.”
He contends that the condition manifests a concept of commercialization of human rights principles, akin to justice to for sale.
He says that cash bail condition is always imposed by the court against accused persons without investigating their capacity to pay and as such, many people are granted bail and further remanded for a simple reason that they are poor and unable to pay the amount of money prescribed.
Kuuku blamed the cash bail condition for prison congestion which currently stands at 75,000 inmates contrary to the approved Uganda prison facilities capacity, which is 20,000 persons that these facilities can accommodate.
“It’s inconceivable that even inmates or the accused persons who have been on remand for such a long time that they have qualified for mandatory bail after the court grants such people bail, still many times they are being told that to be released you have to pay and failure, they are taken back.”
He added, “Therefore, as lawyers and as petitioners, we believe that cash bail is in contravention of article 21 of the constitution of the Republic of Uganda as far as discrimination is concerned because the imposition of this cash bail condition in discriminatively prejudices and affects the poor people who find themselves in the confines of the criminal justice system.”
“It also contravenes article 23, clause six of the Constitution, as far as unreasonableness of this condition is concerned, because a court of law is duty bound to impose such conditions, as it seems reasonable but asking people took their money without investigating us whether they have capacity to pay that contravenes the Constitution, it also contravenes article 28 clause three of the Constitution as far as the presumption of innocence is concerned, simply because when the person is granted on the presumption that he or she is innocent, at the same time, is required to pay money, that means this person is no longer presumed to be innocent.”
The petitioners also decried the rigorous procedure to recover this money by the depositors.
“In the recent past, the judiciary has been stuck with over shs10 billion of money that Ugandans have paid to this account, but because the process is cumbersome they have been unable to claim the money yet the judiciary is always asking what can we do with that money?”
Now, the petitioners seek the following declarations and orders;
- Declaration that Section 78(b) of the Magistrates Courts Act, Cap. 16, the practice of imposing cash bail condition, and Guidelines 23, 24, 25, 26, 27 and 28 of The Constitution (Bail Guidelines For Courts Of Judicature) (Practice) Directions, 2022 is inconsistent and in contravention of Articles: 21, 23(6)(a)(b)&(c), 28(3)(a), 44(c) & 126(2)(a) of the Constitution of the Republic of Uganda, 1995;
- An order directing courts to release on bail and on such Other conditions all prisoners still on remand for having failed to pay cash set as their condition for bail.
- An order against the Respondent to compensate the 2 nd Petitioner for the damage and loss caused by the imposition of an arbitrary condition of cash bail under High Court Criminal Application No. 0176 of 2020.
- Any further and better remedies this Honourable Court deems fit.
- This being a Public Interest Litigation matter, each party should bare their own costs.
They say that instead of cash bail, the accused persons can prove conditions of substantial sureties, a permanent place of abode, they will not prejudice the investigation, are not dangerous to the community or the complainant, among others.
