10 THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

CORAM: HON. JUSTICE L.E.M. MUKASA-KIKONYOGO, DCJ

HON. JUSTICE G.M. OKELLO, JA
HON. JUSTICE A.E.N. MPAGI-BAHIGEINE, JA
HON. JUSTICE C.N.B. KITUMBA, JA
HON. JUSTICE C.K. BYAMUGISHA, JA

20 CONSTITUTIONAL PETITION NO 20 OF 2006

FOUNDATION FOR HUMAN

RIGHTS INITIATIVES::::::::::::::::::::::::::::::::: PETITIONER

VERSUS

ATTORNEY GENERAL:::::::::::::::::::::::::::::: RESPONDENT

JUDGMENT OF THE HON. DEPUTY CHIEF JUSTICE L.E.M.

30 MUKASA-KIKONYOGO

This petition is brought by a non Governmental Organization (NGO)

known as the Foundation for Human Rights Initiatives whose
objectives include protection, promotion and observance of human
rights. The petitioner is aggrieved by a number of provisions in the
following various statutes:-

a) Certain provisions of the Trial on Indictments Act (CAP

23)
40 b) The magistrates Courts Act (CAP 16)
c) The Uganda Peoples Defence Forces Act No. 7 of 2005
(UPDF) and
d) The Police Act (CAP 303)

1
10 The petitioner, basing itself on the facts stated below, is praying for
six declarations also mentioned here below:-

(a) That sections 14(2), 15(1), 15(2), 15(3) and 16 of the Trial
on Indictment Act are inconsistent with Articles 20, 23(1),
28(1) and 28(3) of the Constitution of the Republic of
Uganda in so far as they impose restrictions, and
limitations on the person’s right to liberty, freedom of
movement, the right to a fair and speedy trial and the
presumption of innocence.
20
(b) That sections 75(2) and 76 of the Magistrate’s Courts Act
are inconsistent with Articles 20, 23(1), 23(6), 28(1) and
28(3) of the Constitution of the Republic of Uganda in so
far as they exclude certain offences from the grant of bail,
thereby infringing on the Constitutional right to liberty,
the right to a fair and speedy trial, and the right to bail.

(c) That sections 219, 231 and 248 of the UPDF Act, which
subject accused persons to lengthy periods of detention
30 bail, are inconsistent with Articles 20, 23(6), 28(1), and
28(3) of the Constitution of the Republic of Uganda and as
such violate the inherent rights and freedoms of the
individual which are guaranteed by the said Constitution.

(d) That section 25(2) of the Police Act which permits the
police to detain a suspect for seven days without being
charged in a court of law is inconsistent with Article 23(4)

2
10 of the Constitution and is an infringement of the right to
liberty and the presumption of innocence.

The Petitioner prays that this Honourable Court be pleased to grant

the following declarations that;

(a) Sections 14(2), 15(1), 15(2), 15(3) and 16 of the Trial on

Indictment Act are inconsistent with Articles 20, 23(6),
28(3) of the Constitution and as such are null and void.

20 (b) Sections 75(2) and 76 of the Magistrates Courts Act are

inconsistent with Articles 20, 23(6), 28(1) and 28(3) of the
Constitution and as such are null and void.

(c) Section 219, 231 and 248 of the UPDF Act are
inconsistent with Articles 20, 23(1), 23(6), 28(1) and 28(3)
of the Constitution and as such are null and void.

(d) Section 25(2) of the Police Act is inconsistent with

Articles 20, 23(4), 23(6) and 28(1) of the Constitution and
30 as such is null and void.
(e) The petitioner prays for costs of this petition.
The petition is supported by an affidavit sworn by Livingstone
Ssewanyana, the Executive Director of the petitioner. To the
petitioner the aforesaid provisions of the law do not only impose
unreasonable restrictions on a person’s rights to liberty, freedom of
movement, right to a fair and speedy trial, presumption of
innocence, right to bail but also violate the inherent human rights
and freedoms of the individuals guaranteed by Articles 20, 23 (1),

3
10 23(4), 23(6), 28(1) and 28(3) of the Constitution of Uganda
1995.
As the petition was brought in the public interest, the Attorney
General was sued as a statutory respondent.

In his answer the Attorney General denied the allegations in the

petition and described it as misconceived. It reads, inter alia:-

“Save what is herein specifically admitted, the respondent

denies the contents of the petition as if the same were set
20 forth the traversed seriatim”.

In reply to paragraph 4(a-d) of the petition, the respondent’s

position is as follows:-

(i) Denies that sections 14(2), 15(1), 15(2), 15(3) and 16

of the Trial on Indictment Act are inconsistent with
Articles 20, 23(1), 23(6), 28(1) and 28(3) of the
Constitution as the said provisions of the Trial on
Indictment Act are both Constitutional and lawful.
30
(ii) Denies in response to paragraph 4(b) that sections
75(2) and 76 of the Magistrates Court’s Act are
inconsistent with Articles 20, 23(1), 23(6) 28(1) and
28(3) of the Constitution as the said provisions are
both Constitutional and lawful.

(iii) Denies in response to paragraph 4(c) that sections

219, 231 and 248 of the UPDF Act are inconsistent
with Articles 20, 23(1), 23(6) and 28(3) of the
4
10 Constitution as the said provisions are both
Constitutional and lawful.

(iv) Denies in response to paragraph 4(d) that section

25(2) of the Police Act is inconsistent with Article
23(4) of the Constitution and is an infringement of
the right to liberty and the presumption of
innocence.

(3) In response to paragraph 6 of the petition the

20 respondent avers that the petition is misconceived
and that the petitioner is not entitled to any of the
declarations sought.

The answer was supported by an affidavit sworn by Margaret

Nabakooza, a Senior State Attorney in the Attorney General’s
Chambers.

At the scheduling conferencing, the parties agreed upon the

following four issues:-
30 1. Whether sections 14(2), 15(1), 15(2), 15(3) and 16 of the
Trial on Indictment Act are inconsistent with Articles 20,
23(1), 23(6), 28(1) and 28(3) of the Constitution.

2. Whether sections 75(2) and 76 of the Magistrate’s Court

Act are inconsistent with the Articles 20, 23(1), 23(6),
28(1) and 28(3) of the Constitution.

5
10 3. Whether sections 219, 231 and 248 of the Uganda People’s
Defence Forces Act are inconsistent with Articles 20, 23
(1), 23(6), 28(1) and 28 (3) of the Constitution.

4. Whether section 25(2) of the Police Act is inconsistent

with Article 23(4) of the Constitution.

At the hearing of this petition, the petitioner was represented by Mr.

Kakuru whilst Mr. OLuka, Principal State Attorney, appeared for
the Attorney General.
20

In his submissions in reply, Mr. Oluka conceded all the impugned

provisions of the various Acts except section 14(2) of the Trial on
Indictment Act and section 75(2) of the Magistrates Courts Act.
The aforesaid were the only contentious issues on which both
learned counsel addressed the Court.

I will now proceed to evaluate the evidence adduced by the parties

and to consider the submissions of their counsel.
ISSUE NO. 1
30 On issue No. 1, Mr. Kakuru submitted that sections 14,15(1) 15(2)
15(3) and 16 of the Trial on Indictments Act were inconsistent
with Articles 20, 23(6), 28(1) and 28(3) of the Constitution. They
are both unconstitutional and unlawful. He asked Court to nullify
them. As Mr. Oluka had conceded to the other impugned sections,
Mr. Kakuru concentrated on sections 14 of Trial on Indictment
Act and 75 of Magistrates Court Act.

6
10 Section 14 (1) which reads as follows:-
“(1) The High Court may at any stage in the proceedings
release the accused person on bail, that is to say, on taking
from him or her a recognizance consisting of a bond, with
or without sureties, for such an amount as is reasonable in
the circumstances of the case, to appear before the court on
such a date at such a time as is named in the bond”.

“(2) Notwithstanding subsection (1), in any case where a

person has been released on bail, the court may, if it is of
20 the opinion that for any reason the amount of the bail be
increased-
(a) issue a warrant for the arrest of the person
released on bail directing that he or she should
be brought before it to execute a new bond for an
increased amount; and
(b) commit the person to prison if he or she fails to
execute a new bond for an increased amount”.

Section 75 of Magistrates Court Act reads:-

30 Release on bail.
“ (1) A magistrate’s court before which a person appears
or is brought charged with any offence other than the
offences specified in subsection (2) may, at any stage in the
proceedings, release the person on bail, on taking from him
or her a recognizance consisting of a bond with or without
sureties, for such an amount as is reasonable in the

7
10 circumstances of the case to appear before the court, on
such a date and at such a time as is named in the bond.

(2) The offences excluded from the grant of bail under

subsection (1) are as follows-
(a) an offence triable only by the High Court;
(b) an offence under the Penal Code Act relating to acts
of terrorism;
(c) an offence under the Penal Code Act relating to
cattle rustling
20 (d) an offence under the Firearms Act punishable by a
sentence of imprisonment of not less than ten years;
(e) abuse of office contrary to section 87 of the Penal
Code Act;
(f) rape, contrary to section 123 of the Penal Code Act,
and defilement contrary to sections 129 and 130 of
the Penal Code Act;
(g) embezzlement, contrary to section 268 of the Penal
Code Act;
(h) causing financial loss, contrary to section 269 of the
30 Penal Code Act;
(i) corruption, contrary to section 2 of the Prevention of
Corruption Act;
(j) bribery of a member of a public body, contrary to
section 5 of the Prevention of Corruption Act; and
(k) any other offence in respect of which a magistrate’s
court has no jurisdiction to grant bail.

8
10 (3) A chief magistrate may, in any case other than in
the case of an offence specified in subsection (2),
direct that any person to whom bail has been
refused by a lower court within the area of his or
her jurisdiction, be released on bail or that the
amount required on any bail bond be reduced.
(4) The High Court may, in any case where an accused
person is appearing before a magistrate’s court-
(a) where the case is not one mentioned in
subsection (2), direct that any person to whom
20 bail has been refused by the magistrate’s court
be released on bail or that the amount required
for any bail bond be reduced; and
(b) where the case is one mentioned in subsection
(2), direct that the accused person be released
on bail.
(5) Notwithstanding subsection (1), in any case where a
person has been released on bail, the High Court
may, if it is of the opinion that for any reason the
amount of bail should be increased-
30 (a) issue a warrant for the arrest of the person
released on bail directing that he or she should
be brought before it to execute a new bond for
an increased amount; and
(b) Commit that person to prison if he or she fails
to execute a new bond for an increased amount.

9
10 The other impugned statutory provisions 15(1) 15(2) 15(3) 16
Trial on Indictment Act 76 of Magistrates Court Act 25 Police
Act and sections 219, 231 and 248 of UPDF read as follows:-

Section 15 (1) reads as follows:-

Refusal to grant bail.
“(1) Notwithstanding section 14, the court may refuse to
grant bail to a person accused of an offence specified in
subsection (2) if he or she does not prove to the
satisfaction of the court-
20 (a) that exceptional circumstances exist
justifying his or her release on bail; and
(b) that he or she will not abscond when
released on bail”.

Section 15(2) reads as follows:-

“An offence referred to in subsection (1) is-
(a) an offence triable only by the High Court;
(b) an offence under the Penal Code Act
relating to acts of terrorism or cattle
30 rustling;
(c) an offence under the Firearms Act
punishable by sentence of imprisonment of
not less that ten years;
(d) abuse of office contrary to section 87 of
the Penal Code Act;
(e) rape, contrary to section 123 of the Penal
Code Act and defilement contrary to

10
10 sections 129 and 130 of the Penal Code
Act;
(f) embezzlement, contrary to section 268 of
the Penal Code Act.
(g) causing financial loss, contrary to section
269 of the Penal Code Act;
(h) corruption, contrary to section 2 of the
prevention of corruption Act;
(i) bribery of a member of a public body,
contrary to section 5 of the Prevention of
20 Corruption Act; and
(j) any other offence in respect of which a
magistrate’s court has no jurisdiction to
grant bail”.

Section 15(3) reads as follows:-

“In this section, “exceptional circumstances” means any
of the following-
(k) grave illness certified by a medical officer
of the prison or other institution or place
30 where the accused is detained as being
incapable of adequate medical treatment
while the accused is in custody;
(l) a certificate of no objection signed by the
Director of Public Prosecutions; or
(m) the infancy or advanced age of the
accused”.
Sections 16 reads as follows:-

11
10 Restriction on period of pretrial remand.
“If an accused person has been remanded in custody before
the commencement of his or her trial-
(a) in respect of any offence punishable by death, for a
continuous period exceeding four hundred and
eighty days:- or
(b) in respect of any other offence, for a continuous
period exceeding two hundred and forty days, the
judge before whom he or she fist appears after the
expiration of the relevant period shall release him or
20 her on bail on his or her own recognizance,
notwithstanding that he or she is accused of an
offence referred to in section 15(1), unless-
(c) he or she has, prior to the expiration of that period,
been committed to the High Court for trial; or
(d) the judge is satisfied that it is for the protection of
the public that he or she should not be released for
custody”.

Section 76 of Magistrates Courts Act reads as follows:

30 Restriction on period of pretrial remand.
“If an accused person has been remanded in custody
before his or her trial commences-
(a) in respect of any offence punishable by death, for a
continuous period exceeding four hundred an eighty
days; or
(b) in respect of any other offence, for a continuous
period exceeding two hundred and forty days, the
12
10 magistrate before whom the accused person first
appears after the expiration of the relevant period
shall release him or her on bail on his or her own
recognizance, notwithstanding that he or she is
accused of an offence referred to in section 75(1),
unless-
(c) he or she has, prior to the expiration of that period,
been committed to the High Court for trial; or
(d) the magistrate is satisfied that it is expedient for
the protection of the public that he or she should not
20 be released from custody.

Section 25 of Police act reads as follows:-

Disposal of a person arrested by a police officer.
“(1) A police officer on arresting a suspect without a
warrant shall produce the suspect so arrested before a
magistrate’s court within forty-eight hours unless earlier
released on bond.
(2) Subsection (1) shall not apply to a person who is
arrested in one police area and is not to be questioned
30 within the area in which he or she was arrested until he
or she is transferred to the area where the offence was
committed within seven days”.

Sections 219 of Uganda Peoples Defence Forces Act reads

as follows:
“Subject to sections 231 and 248, a military court
may grant bail to a person charged with a service
13
10 offence on the same considerations that govern the
grant of bail in civil courts”.

Sections 231 of Uganda Peoples Defence Forces Act reads

as follows:
“In exceptional, circumstances, and on such
conditions as it may impose, the appellate court
may grant bail pending appeal except in cases
where the appellant has been sentenced to death or
to a term of imprisonment exceeding five years”.
20

Sections 248 of Uganda Peoples Defence Forces Act reads as

follows:
“In or during the exercise of its powers under subsection
(1) of section, the General Court Martial-
(a) may exercise any of the powers conferred on it as an
appellate court by this Act;
(b) may, pending the final determination of the case,
release any convicted person on bail; except that-
(i) bail shall not be granted to a person sentenced
30 to death or to imprisonment exceeding five years;
and
(iii) If the convicted person is ultimately sentenced
to imprisonment or detention, the time he or she has
spent on bail shall be excluded in computing the
period for which he or she is sentenced.
(c) may, if it thinks fit, call for and receive from the
summary trial authority or Unit Displinary
14
10 Committee before which the case was heard, a report
on any matter connected with the case;
(d) shall not make any order to the prejudice of an
accused person unless he or she has had an
opportunity to be heard in his or her own defence”.
It was contended by Mr. Kakuru that the aforesaid provisions
narrow, abridge and negate the right to bail as prescribed by
Article 23(6) of the Constitution in that they require an
accused person to prove exceptional circumstances and to assure
court that he or she will not abscond. As far as Mr. Kakuru is
20 concerned, Article 23 (6) supra does not give any discretion to
the court. The right to apply for bail is fundamental and
inherent under the Constitution Article 20 reads as follows:-

“(1) Fundamental rights and freedoms of the individual

are inherent and not granted by the State.

(2) The rights and freedoms of the individual and

groups enshrined in this Chapter shall be respected, upheld
and promoted by all organs and agencies of Government
30 and by all persons”.
With regard to section 75 of MCA (supra) Mr. Kakuru’s
complaint was that it is wrong for the Magistrates Courts Act to
provide offences which are triable by the Magistrates Court but
not bailable by them. This provision, counsel argued, also
contravenes Article 23 (6) of the Constitution (supra) in that it
infringes and limits the accused’s right to apply for bail. Mr.
Kakuru did not see the rationale behind it. If a court has

15
10 jurisdiction to try an offence it should have jurisdiction to grant
bail.

He also wondered why if a magistrate court can remand an

accused in cases triable by the High Court only, why should it
not be given powers to grant bail to the accused in such cases.
To Mr. Kakuru there is no convincing reason for depriving
magistrates of such powers to grant bail. Counsel vehemently
argued that fundamental human rights of the individual are
inherent and not given by State.
20
In the premises, he prayed Court to nullify section 14(2) of
Trial on Indictment Act, section 75 of the Magistrates
Courts Act and all the impugned provisions in the petition which
are inconsistent with Articles 20, 23(1), 23 (6), 28(1) and 28(3)
of the Constitution.

In reply, Mr. Oluka did not agree with the submissions of Mr.
Kakuru on the interpretation of section 14(2) of Trial Indictment
Act. He submitted that the High Court is seized with powers to set
30 conditions or order cancellation of bail. It has discretion to deny
bail to an accused. Setting conditions for bail or cancellations does
not violate the right to a fair trial and presumption of innocence
envisaged under Article 28(3) of the Constitution. To him, bail,
can be cancelled at any point in time.

On section 75 of Magistrate Court Act, Mr. Oluka conceded that,

in appropriate circumstances, the Constitution should be given

16
10 wide interpretation. However, it should not be interpreted to conflict
with other parts of Constitution. Counsel pointed out that both the
High Court and magistrates’ courts are given powers under section
75 to consider grant of bail. He argued that, according to our
jurisdiction each court is given specific jurisdiction; for example,
capital offences are triable only by the High Court.

Further, counsel argued that there is no cause for alarm because

there are guidelines for granting bail at different stages of the trial.
He referred this Court to Article 23 of the Constitution (supra)
20 and prayed that the provisions of section 75 Magistrate Court Act
and section 14(2) of Trial on Indictment Act should be upheld as
they are within the confines of the law.

I carefully listened and I have considered the addresses of both

learned counsel on the constitutionality of section 14 (2) Trial on
Indictment Act and section 75 of Magistrates Court Act and
noted all the arguments, they advanced. I have also had a careful
perusal of the affidavit evidence and legal arguments advanced
during the scheduling conference as well as the relevant provisions
30 of the law and authorities cited by the parties.

In matters involving interpretation of the Constitution or

determination of the Constitutionality of Acts of Parliament courts
are guided by well settled principles. One of the cardinal principles
in the interpretation of constitutional provisions and Acts of
Parliament is that the entire Constitution must be read as an
integrated whole and no one particular provision should destroy the

17
10 other but sustain the other. See TINYEFUZA VS ATTORNEY GENERAL
CONSTITUTIONAL PETITION NO.1 OF 1996.
Another important principle is that all provisions concerning an
issue should be considered together to give effect to the purpose of
the instrument see South Dakola vs North Carolina 192, US 268,
1940 LED 448.

Thirdly, the purpose and effect principle where the court considers
the purpose and effect of an Act of Parliament to determine its
constitutionality. See THE QUEEN VS BIG DRUG MARK LTD
20 (1996) LRC (CONST.) 332 ATTORNEY GENERAL VS SALVALON
ABUKI CONSTITUTIONAL APPEAL NO. 1 OF 1998.
Following the Constitution and in particular that part which
protects and entrenches fundamental rights and freedoms, must be
given a generous and purposive interpretation. ATTORNEY
GENERAL VS MODERN JOBE (1984) LRC 689 UNITY DOW VS
ATTORNEY GENERAL OF BOTSWANA 1992 (LRC 662).
With the above mentioned principles and others not mentioned in
mind I will now proceed to consider not only sections 14(2) of the
Trial Indictment Act and section 75 of Magistrate Courts Act
30 but all the issues agreed upon by the parties at the scheduling
conferencing.

In my view, the petition before court is mainly challenging the

constitutionality and legality of the restrictions and limitations
imposed on grant of bail by the impugned provisions of the above
mentioned Acts of Parliament, namely, TIA, MCA, UPDF and Police
Act. The question for this Court to determine is whether they are
18
10 inconsistent with Articles, 20, 23(1), 28(1), 23(3) and 23(6) of
the Constitution. The petitioner sees the right to apply for bail as a
fundamental and inherent right not given by the State. To the
petitioner bail is a question of liberty. The petition is, hence,
seeking nullification of those provisions to the extent of
inconsistency.

As conceded by the Principal State Attorney, Oluka some of the

above mentioned impugned provisions are unconstitutional and
inconsistent with the Constitution in some aspects as we shall see
20 later but others are not. From the outset I would like to point out
that this Court has pronounced itself on several aspects of the
interpretation and application of the relevant laws governing bail,
mainly, Article 26(6) of the Constitution but it seems there is still
a lot to be done. It is, for example, the contention of Mr. Kakuru
that the court has no discretion to deny an accused person bail. As
far as he is concerned it is a fundamental human right inherent in
the individual and is automatic. It should, therefore, not be based
on the impugned statutory provisions.
In the case of TUMUSHABE VS ATTORNEY GENERAL
30 CONSTITUTIONAL PETITION NO. 6 OF 2004, this Court ruled
that:-
“The law that governs bail in Uganda is contained in
Article 23(6) (a) (b) and (c) of the Constitution. All other
laws on bail in this country that are inconsistent with or
which contravene this Article are null and void to the
extent of inconsistency. The Attorney General of Uganda
needs to take closer look at sections 75 and 76 of MCA
19
10 and sections 15 and 16 of TIA. There may be urgent need
to bring them into conformity with Article 23(6) of the
Constitution”.

The above mentioned observation by this Court notwithstanding,

there was still need for this Court to rule unequivocally whether the
bail provisions of the Trial on Indictment Act are still good law or
not. This led to the pronouncements in Constitutional Ref. No. 20
of 2005, Uganda (DPP) vs Col. (RTD) Dr. Kiiza Besigye, when the
DPP sought interpretation of Article 23(6) (supra) to determine
20 whether the court has discretion to deny an accused bail.
Before I proceed to examine the implications of this Court’s ruling
in Reference No. 20 of 2005, I consider it appropriate to reproduce
the relevant provisions of the Constitution governing bail. They
read as follows:-

“23 (1) No person shall be deprived of personal liberty except

in any of the following cases –
Article 23(6) as amended by the Constitution (Amendment) Act
11/2005 reads:
30 (6) where a person is arrested in respect of a criminal
offence –

(a) the person is entitled to apply to the court to be

released on bail and the court may grant that person
bail on such conditions as the court considers
reasonable;

20
10 (b) in the case of an offence which is triable by the High
Court as well as by a subordinate court, if that person
has been remanded in custody in respect of the
offence for sixty days before trial, that person shall
be released on bail on such conditions as the court
considers reasonable.

(c) in the case of an offence triable only by the High

Court, if that person has been remanded in custody
for one hundred and eighty days before the case is
20 committed to the High court, that person shall be
released on bail on such conditions as the court
considers reasonable.”

Article 28 which protects the right to a fair hearing states inter

alia:
“(3) Every person who is charged with a criminal offence shall
–
(a) be presumed to be innocent until proved guilty or until
that person has pleaded guilty.”
30

A careful perusal of the Court’s ruling in the aforesaid reference

reveals that, the Court gave the question of discretion under Article
23(6) (supra) a thorough and exhaustive interpretation. In my view
it left no stone unturned. I will reproduce some of the relevant
portions of the ruling where I consider it appropriate.

21
10 Applying some of the above mentioned principles on constitutional
interpretation this Court held as follows:-
Under article 23(6)(a), the accused is entitled to apply for
bail. The word “entitled” creates a ‘right’ to apply for
bail and not a right to be granted bail. The word may
create discretion for the court to grant or not to grant
bail. The context in which the word ‘may’ is used does
not suggest otherwise.

Under article 23(6)(b) where the accused has been in

20 custody for 60 days before trial for an offence triable by
the High Court as well as a subordinate court, that
person shall be released on bail on such conditions as the
court considers reasonable. Here the court has no
discretion. It has to grant bail because of the use of the
phrase ‘shall be released on bail’, appearing therein.
This is the opposite of the phrase ‘may be released on
bail’ as appears in 23(6)(a) (supra). The word ‘shall’ is
imperative or mandatory. It denotes obligation.

30 As regards article 23(6)(c), where the accused has been in

custody for 180 days on an offence triable by the High
Court only and has not been committed to the High Court
for trial, that person shall be released on bail on
reasonable conditions. Like in 23(6)(b) the court has no
discretion to refuse to grant bail to such a person”.

22
10 However, in both article 23(6)(b) and (c) the court has discretion to
determine the conditions of bail.

In my view, the aforesaid Court’s ruling should have put the

question of discretion to rest. I see no reason for resurrecting it.
After such an exhaustive consideration of the subject there is
nothing to persuade me to find that bail is automatic. Relying on
the purposive and effect principle (supra) I reiterate this Court’s
holding that:-
“The context of Article 23 (6) (a) confers discretion upon
20 the court whether to grant bail or not to grant bail. Bail is
not automatic” as it was contended by Mr. Kakuru.

Another scenario of which human rights lawyers in Uganda,

including Mr. Kakuru have been critical of is under Article 23(6)
(c) of the Constitution. This is where an accused person charged
with offences triable only by the High Court but has not spent the
statutory period of 180 days on remand is seeking release on bail.
In this case, the court still, has discretion to grant or not to grant
bail if the accused fails to show exceptional circumstances as
30 provided by the Trial on Indictments (Amendments) Act No. 9 of
1998 which read as follows:

“ (a) grave illness certified by a medical officer of the prison or

other institution or place where the accused is detained as
being incapable of adequate medical treatment while the
accused is in custody;

23
10 (b) a certificate of no objection signed by the Director of
Public Prosecution or

(c) the infancy or advanced age of the accused.”

It is worthy noting that Act 9 of 1998 having been enacted 3 years

after the 1995 of the Constitution, it must have been intended to
operationalize article 23(6) (c) to provide for the applications
seeking bail before the expiry of the statutory period as explained
above.
20
Mr. Kakuru fears on the exercise of the court’s discretion is
unfounded because even section 15(1) of the Trial on Indictment
Act left the court’s discretion intact. The courts have clear
guidelines as to how to exercise the discretion to grant or not to
grant bail and the basis on which to be exercised.

On cancellation of bail under section 14(2) of the Trial on

Indictment Act, complaint of Mr. Kakuru is that the accused will
not be condemned unheard as he suggested. When he or she is
30 produced before court, he or she will be given opportunity to be
heard. He or she would be required to show cause why the order
sought for should not be granted. It is not correct, as suggested by
Mr. Kakuru, that all the impugned provisions mentioned in this
petition have the effect of negating the right to apply for release on
bail as prescribed by Article 23 (6) (a) of the Constitution.
Clearly, the Court has a discretion to grant bail and impose
reasonable conditions without contravening the Constitution.

24
10 With regard to Mr. Kakuru’s complaint on about other restrictions
on courts, in particular to require the accused to show that he will
not abscond and proof of exceptional circumstances, in my view,
the said requirements are justified. Besides they are not mandatory.
Both High Court and subordinate courts are still free to exercise
their discretion judicially and to impose reasonable conditions on
the applicant. As was observed by this Court in Constitutional
Reference No. 20 (supra) Page 12:-
“While the seriousness of the offence and the possible
penalty which could be meted out are considerations to
20 be taken into account in deciding whether or not to grant
bail, applicants must be presumed innocent until proved
guilty or until that person has pleaded guilty. The court
has to be satisfied that the applicant will appear for
trial and would not abscond. The applicant should not be
deprived of his/her freedom unreasonably and bail should
not be refused merely as a punishment as this would
conflict with the presumption of innocence. The court
must consider and give the applicant the full benefit of
his/her constitutional rights and freedoms by exercising
30 its discretion judicially”.

Further, it is not disputed that bail is an important judicial

instrument to ensure individual liberty. However, the court has to
address its mind to the objective of bail. It is equally an important
judicial instrument to ensure the accused person’s appearance to
answer charge or charges against him or her.

25
10 The objective and effect of bail are well settled. The main reason for
granting bail to any accused person is to ensure that he appears to
stand trial without the necessity of being detained in custody in the
meantime. We accept Mr. Kakuru’s submission that under Article
28(3) of the Constitution, an accused person charged with a
criminal offence is presumed innocent until proved guilty or pleads
guilty. If an accused person is remanded in custody but
subsequently acquitted may have suffered gross injustice. Be that
as it may, bail is not automatic. Its effect is merely to release the
accused from physical custody while he remains under the
20 jurisdiction of the law and is bound to appear at the appointed
place and time to answer the charge or charges against him.

The provisions of section 14 (2) of the TIA and 75 MCA requiring

the court to set conditions and the guidelines stated therein are
hence justified. It is, therefore, relevant, unless the offence is minor
to take into account, certain matters, like, the gravity of offence,
nature of accusation, antecedents of the accused person, and
whether he has a fixed abode within the court’s jurisdiction.

30 The aforesaid requirements do not in anyway infringe on the

accused’s rights under Articles 20, 23 and 28. Rights, be the
fundamental rights or not, must be enjoyed within the confines of
the law. Violation of the accused’s rights does not occur simply
because the accused is required to assure court that he will appear
to answer the charges. All that is required of the court is to impose
reasonable conditions, acceptable and demonstrably justifiable in a

26
10 free and democratic society as provided under Article 43 (2) of the
Constitution.
Society must be protected from lawlessness. The court must guard
against absconding because, there may be a danger of interfering
with the evidence or witnesses. This Court has observed in
Constitutional Ref No 20 of 2005 (supra) as follows:-
“The needs of society to be protected from lawlessness
and the considerations which flow from people being
remanded in prison custody which adversely affects their
welfare and that of their families and not least the effect
20 on prison remand conditions if large numbers of
unconvicted people are remanded in custody. In this
respect various factors have to be born in mind such as
the risk of absconding and interference with the course
of justice. Where there is a substantial likelihood of the
applicant failing to surrender for turn up for trial, bail
may only be granted for less serious offences. The court
must weigh the gravity of the offence and all the other
factors of the case against the likelihood of the applicant
absconding. Where facts come to light and it appears
30 that there is substantial likelihood of the applicant
offending while on bail, it would be inadvisable to grant
bail to such a person”.

In the premises I am unable to agree with Mr. Kakuru that the

requirement to establish exceptional circumstances under section
14, 15 contravene Article 23(6), in that the provision merely
provides guidance not direction. The guidelines are clearly stated
27
10 when the court “may” exercise a discretion to deny bail or not, and
when they can impose conditions.
On this issue I find that sections 14(2), 15(1), 15(2) and 15(3) of
TIA not consistent with Articles, 20, 23(1), 23(6), 28(1) of the
Constitution.

However, as it was conceded by Mr. Oluka, section 16 of Trial

Indictment Act is null and void to the extent of its inconsistency
with Article 23(6) (supra). In the premises the answer to issue
No.1 is partly in the negative and partly in affirmative.
20

ISSUE NO. 2
With regard to section 75 (2) of the MCA, it is not correct to say,
on the evidence before court, that it contravenes the provisions of
Article 23(6). The accused’s right to bail is not absolute. It has to
be enjoyed within the confines of the law. There has to be a
constitutional balance of everybody’s rights. Denial to grant bail by
section 75 (2) does not contradict the accused’s inherent right of
innocence. I do not accept the argument that the limitation
amounts to suggestion that, the accused is guilty of the offence he
30 is charged with.

On section 76, it is to be noted that it predates the 1995

Constitution. In accordance with Article 274 of the Constitution,
section 76 may, be construed with modification and adoption to
bring it into conformity with the Constitution. It would, therefore,
be null and void to the extent it contravenes the Constitution.

28
10 The answer to issue No.2 is also partly in the affirmative and partly
negative.

ISSUE NO. 4
For convenience I will next consider section 25(2) of the Police
Act. I accept that it contravenes Article 23(4) of the
Constitution. It provides for a longer period before an accused is
produced in court than the Constitution sets under Article 23(4).
It is, hence, null and void to that extent.

20 Lastly on issue No.3, Mr. Oluka rightly conceded that sections

219, 231 and 248 of the Uganda People’s Defence Forces Act
(UPDF) contravene articles 20, 23 (1), 23(6), 28(1) and 28(3) of
the Constitution. I accept that bail should not be refused
mechanically simply because the prosecution wants such orders.
Remanding an accused in custody is a judicial act. The court must
in making such an order, address its judicial mind to it before
depriving an accused person or suspect of his liberty. Conditions
and restrictions imposed must be reasonable. I accept that the
aforesaid impugned provisions of UPDF Act are inconsistent with
30 Articles 20, 23(1), 23(6), 28(1) and 28 (3) of the Constitution.
They are null and void to the extent of inconsistency. Issue No. 3
must, therefore, succeed.
In the result, the petition would succeed in part with the following
declarations:-

1. It is hereby declared that section 16 of Trial on

Indictment Act contravenes Articles 23(6), 20 and 28 of

29
10 Constitution and is null and void to the extent of
inconsistency.

2. That section 76 of MCA is null and void to the extent of

inconsistency with Articles 20, 23(1), 23(6), 28(1) and
28(3) of the Constitution of the Republic of Uganda in so
far as it infringes on the constitutional rights to liberty
and speedy trial.

3. That sections 219, 231 and 248 of UPDF Act, which

20 subject accused persons to lengthy periods of detention
are inconsistent with Articles 20, 23(6), 28(1) and 28(3) of
the Constitution of the Republic of Uganda.

4. That section 25 (2) of the Police Act is inconsistent with

Articles 20, 23(4), 23(6) and 28(1) of the Constitution and
as such is null and void to the extent of inconsistency.

Decision of the Court

Since all the justices on the Coram have agreed with the above
30 holdings and proposed declarations this petition succeeds in
part with the above mentioned declarations. Since the petition
was brought in public interest there will be no order as to costs.

Dated at Kampala this …26th .…day of …March….2008

L.E.M. Mukasa-Kikonyogo
HON. DEPUTY CHIEF JUSTICE

30
10 JUDGMENT OF G.M.OKELLO, JA

I have read in draft the judgment of my learned sister Justice

Mukasa Kikonyogo, DCJ and I entirely agree. I have nothing useful
to add.

Dated at Kampala this …26th ..day of …March….. 2008

G.M.OKELLO
20 JUSTICE OF APPEAL

JUDGEMENT OF HON. JUSTICE A.E.N.MPAGI-BAHIGEINE, JA

I have read in draft the judgement of my Lord Mukasa Kikonyogo –

DCJ.

I fully concur and have nothing more to add.

30 Dated at Kampala this …26th …. day of …March.. 2008

Hon. A.E.N.Mpagi-Bahigeine
Justice of Appeal

JUDGMENT OF C.N.B.KITUMBA, JA

40 I have had the benefit of reading in draft the judgment of my Lord Mukasa-
Kikonyogo, DCJ.

I entirely agree with it and have nothing more useful to add.

Dated this …26th ..day of ………March…….2008

C.N.B.Kitumba
JUSTICE OF APPEAL
50

31
10 JUDGMENT OF BYAMUGISHA JA

I had the benefit of reading in draft from the lead judgment that was
prepared by the learned Deputy Chief Justice.

I agree with it.

Dated at Kampala this …26th .day of …March….2008

20 C.K.Byamugisha,
Justice of Appeal

32