Principal Judge Flavian Zeija has issued a directive barring magistrates from granting bail to suspects facing capital charges, emphasizing that such decisions now fall exclusively within the jurisdiction of the High Court.
Previously, magistrates could grant bail to suspects charged with serious offences, including murder, treason, terrorism, and aggravated robbery, if the suspects had been held on remand for over 180 days without being committed to the High Court for trial. However, the new administrative circular issued on December 12, 2024, supersedes this practice, aligning it with the Judicature (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022.
“Bail for accused persons, except juveniles, charged with capital offences before committal can only be granted by the High Court upon a formal application,” Justice Zeija stated in the circular. He further instructed judicial officers of lower courts to cease granting bail to such suspects and comply with the new directive immediately.
To facilitate the implementation, Justice Zeija directed court registrars to expedite the transfer of bail applications to the High Court and ensure they are handled promptly. Registrars were also tasked with widely circulating the application forms through various coordination committees and prison authorities, ensuring that unrepresented suspects are aware of their rights and can access the required legal process.
Judiciary spokesperson, James Ereemye Mawanda, clarified in an interview with Daily Monitor that the directive does not contradict existing laws but seeks to streamline the bail process for capital offences. “Under the law, judicial officers are now required to process bail applications for capital offence suspects through the High Court once the 180-day threshold is reached,” he said.
Mawanda expressed optimism about the change, noting that transferring the bail process to the High Court would introduce greater caution in decisions about releasing suspects on bail. He highlighted cases where mandatory bail issued by magistrate courts led to challenges in apprehending suspects with warrants of arrest.
The directive has drawn mixed reactions from legal experts. Senior criminal lawyer Henry Kunya criticized the change, arguing that it undermines constitutional provisions. “The Constitution remains supreme, and its provisions on bail must be upheld,” Kunya stated, emphasizing the principle of presumed innocence and the potential for prolonged remand of suspects later acquitted or discharged.
Article 23 of the Constitution allows magistrates to grant bail after 60 days for non-capital offences and 180 days for capital offences if trials are delayed. While this position has now shifted, Kunya cautioned against measures that might exacerbate congestion in detention facilities.
