By Counsel Denis Nyombi
I have got a chance of reading today’s (Saturday October 2, 2021) New Vision Newspaper. Specific of which the account of Mr. Museveni’s argument against bail application in capital offences. Story on Page 3 was written by one Taddeo Bwambale. I find the account short of detail and substantial merit.
First of all, bail and bail application are two distinguishable things. Whereas bail is the temporary relief given to an accused person as their trial subsists, bail application is the process one goes through to convince court that they qualify to obtain this temporally freedom.
Mr. Museveni’s argument infers or tends to infer that, once one is accused of an offence, capital in nature as his core objection, it is automatic that one is granted bail. No! This in itself is wrong. Bail is obtained through an application. The application oral or written, must meet some tests. It is not a free take.
Further, Mr. Museveni faults the court system for paying more attention to defending the Rights of the suspects without considering the plight of the victims. This is wrong with due respect, Mr. President. Permit me to ably say, no suspect is granted bail. Bail is a subsquent of an application, by the accused. A person qualifies to apply for bail upon being accused. Not a suspect. Slight a difference there is, but that difference is the root of bail.To apply for bail is a Right. Bail per-se is not a Right.
The aspect of bail per-se not being a Right is rooted in the fact that there is an accusation against someone. He/she is not as free as he/she was before the accusation. He/she must meet some measures that shall be weighed in by the discretion of courts to grant the bail.
In light of the above, I ask, does Mr. Museveni‘s argument intend to amend the tenants for bail application and the considerations court looks at? Or he wants to erase away the Right to apply for bail on capital offences in totality?These principals of law are more than 200 years old. They are the foundation of rule of law. It’s quite slippery to debate them on an amplified emotional temperament.There are so many accused persons on various charges not even murder, that have failed to meet the satisfaction of court, to grant them bail. Therefore, bail is not granted as freely and luxuriously as Mr. Museveni infers.
I also invite your attention to what fusion lies between capital offences as a political tool juxtaposed with frustration of bail application.
Nearly all the key leading politicians in Uganda are walking on bail forms. Dr. Besigye, Robert Kyagulanyi, Gen (rtd) Henry Tumukunde etc are on bail over Treason charges.
Betty Namboze is on bail with about 54 cases in her political career in various courts. By January 14, 2021, Robert Kyagulanyi was arrested over 89 times in his political career that is less than 10 years. Dr. Besigye has started to make criminal law precedents and indeed his bail application forms what lawyers call the lead authority in bail application principles. He has had numerical standing of over 200 arrests in his political career.
With all these number of arrests and charges the only safety valve is the grant of bail that these persons have been chanced by our judicial system. To obtain their still tamed liberty.
The susceptibility of putting political charges, capital in nature is as easy as tracing a boda on a Kampala street but getting out of the noose is as equally hard as tracing a pothole free road in Kampala metropolitan. That already scanty chances is to be further made dim dark if the Right to apply for bail in capital offences is erased away.
It’s on record. No amendment of a law, occassioned by Mr.Museveni and NRM, comes in a bona -fide spirit. It’s always tainted with Mala-fides. It’s hard to trace any trust of Mr.Museveni and NRM on matters of Human rights.”
The writer, Denis Nyombi is a Criminal & Civil Defence Attorney Working with Denis Nyombi & Co.Advicates.