Court retains the discretion to set the terms for mandatory bail in Uganda under Article 23(6)(b) and (c) of the Constitution of Uganda
Article 23(6)(b) and (c) provides for the right to be released on mandatory bail when the accused has been on remand without trial for 60 days in respect of an offence which is triable by the High Court as well as by a subordinate court, and on remand without trial for 120 days for offenses triable by the High Court. However in both instances Article 23(6)(b) and (c) provides that the accused person shall be released on bail on such conditions as the court considers reasonable. In Bukenya Nicholas and Kasolo Herbert v Uganda (Criminal Miscellaneous Application 640 of 2025) Justice Muwata held that where the accused person qualifies for mandatory bail the discretion of court is exercised in setting the terms of the bail. See also, Mivumbi Richard v Uganda (Criminal Misc. Application No. 029 of 2025, Kabale High Court)
It should be noted that in Kiddawalime Abdu v Uganda (Criminal Misc. Application No. 381 of 2025), Justice Muwata considered whether there were exceptional circumstances justifying the bail even though the accused person qualified for mandatory bail. This case seems to suggest that in respect of the High Court, an accused person must prove exceptional circumstances to be released under mandatory bail. This position seems to contradict the express provisions of Article 23(6)(b) and (c) of the Constitution that provides that the accused person shall be released on mandatory bail.
What should Magistrates Courts do on the lapse of 60 days of remand without trial
Ordinarily an accused person should apply for mandatory bail when he or she has been on remand for 60 days or more without trial but court can on its own motion grant Mandatory bail to the accused person. In Magistrates Courts an application for bail is not subject to any technicalities. It can be made orally in court.
The best practice in Magistrates Courts, whether the accused person applies for mandatory or not is for the Magistrates courts to grant the mandatory bail and impose any reasonable conditions that it deems fit. This leaves the onus on the accused person to comply with the terms of the mandatory bail so that he or she can be released from custody.
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