Foundation For Human Rights Initiatives Vs Attorny General (CONSTITUTIONAL APPEAL NO. 03 OF 2009.) [2018] UGSC 46 (26 October 2018);

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THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: KATUREEBE, CJ; TUMWESIGYE; KISAAKYE; NSHIMYE; MWANGUSYA; OPIO-AWERI; MWONDHA; JJ.SC)

CONSTITUTIONAL APPEAL NO: 03 OF 2009

BETWEEN

FOUNDATION FOR HUMAN RIGHTS INITIATIVE::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

AND

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

[Appeal from the Judgment of Justices of the Constitutional Court (Mukasa- Kikonyogo, DCJ, Okello, Mpagi-Bahigeine, Kitumba, & Byamugisha, JJA) dated 26^thMarch 2008 in Constitutional Petition No. 20 of 2006]

JUDGMENT OF DR. KISAAKYE, JSC

The appellant, the Foundation for Human Rights Initiative (hereinafter referred to as FHRI) is a Non Governmental Organization. It filed this appeal challenging the Judgment of the Constitutional Court in Constitutional Petition No. 20 of 2006 wherein Court found, among others, that sections 14(2), 15(1), 15(2) of the Trial on Indictments Act and section 75(2) of the Magistrates Courts Act did contravene the Constitution.

Before considering the submissions and merits of this appeal, it is necessary to provide a brief background to this appeal. On 18^th July 2006, FHRI filed Constitutional Petition No. 20 of 2006 under Article 137(3) of the Constitution of Uganda against the Attorney General. In its Petition, FHRI alleged as follows:

That sections 14(2), 15(1), 15(2), 15(3) and 16 of the Trial on Indictments 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.
That sections 75(2) and 76 of the Magistrates 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.
That sections 219, 231 and 248 of the UPDF Act, which 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 and as such violate the inherent rights and freedoms of the individual which are guaranteed by the said Constitution.
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) of the Constitution and is an infringement of the right to liberty and the presumption of innocence.

Based on the above allegations, FHRI prayed for the following declarations and orders from the Constitutional Court:

That sections 14(2), 15(1), 15(2), 15(3) and 16 of the Trial on Indictments Act are inconsistent with Articles 20, 23(6), 28(3) of the Constitution and as such are null and void.
That 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.
That sections 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.
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.
Costs for the Petition.

The Attorney General conceded to the unconstitutionality of section 15 of the Trial on Indictment Act but denied all the other allegations in the Petition.

The parties agreed upon four issues for determination by the Constitutional Court. On 28^th March 2008, the Constitutional Court partially allowed the Petition and declared as follows:

That sections 14(2), 15(1), (2) and (3) of the Trial on Indictments Act were not inconsistent with Articles 20, 23(1) & (6) and 28(1) of the Constitution;
That section 16 of the Trial on Indictments Act was null and void to the extent of its inconsistency with Article 23(6) of the Constitution.
That section 75(2) of the Magistrates Courts Act was not inconsistent with the Articles 20, 23(1), 23(6), 28(1) and 28(3) of the Constitution and did not contravene Article 23(6) of the Constitution.
That section 76 of the Magistrates Courts Act was null and void to the extent it contravened the Constitution, and that in accordance with Article 274 of the Constitution, it could be construed with modification to bring it in conformity with the Constitution.
That sections 219, 231, and 268 of the Uganda People’s Defence Forces Act were inconsistent with Articles 20, 23(1) &23 (6), 28(1) &28 (3) of the Constitution and were therefore null and void to the extent of their inconsistency.
That section 25(2) of the Police Act was null and void to the extent that it provided for a longer period of detention before an accused could be produced in Court than set under Article 23(4) of the Constitution.

The Constitutional Court did not make any order as to costs on grounds that the Petition was brought in public interest.

Dissatisfied with part of the decision of the Constitutional Court relating to sections 14(2), 15(1), (2) and (3) of the Trial on Indictments Act (hereinafter referred to as TIA), and section 75(2) of the Magistrates Courts Act (hereinafter referred to as MCA), FHRI appealed to this Court on six grounds set out later in this Judgment. FHRI prayed that this appeal be allowed with costs in this Court and the Constitutional Court.

Medard Ssegona, Dorothy Kabugo and Irene Akurut represented FHRI at the hearing of this appeal, while Oluka Henry, Principal State Attorney represented the Attorney General. Both parties filed written submissions.

FHRI’s counsel argued grounds 1, 2, 6, and 3 separately and in that order and grounds 4 and 5 jointly. On the other hand, the Attorney General combined and argued grounds 1 and 2 together, ground 3

separately, grounds 4 and 5 together and lastly ground 6 of appeal.

I will consider grounds 1, 2 and 3 separately, grounds 4 and 5 together and ground 6 separately.

Principles of constitutional interpretation relevant in this Appeal.

Before I proceed to consider the merits of this appeal, it is vital to lay out the principles of constitutional interpretation that will guide this Court in determining this appeal.

Courts have overtime also developed principles which aid in the interpretation of the provisions of a Constitution.

The first principle which I find relevant in this appeal is that in determining the constitutionality of a legislation, its purpose and effect must be taken into consideration. If the purpose of an Act is inconsistent with a provision of the Constitution, it shall be declared unconstitutional. Similarly, if the effect of implementing a provision of the Act is inconsistent with a provision of the Constitution, that provision of the Act shall be declared unconstitutional. This principle was followed by this Court in Attorney General v. Salvatori Abuki Constitutional Appeal No. 1 of 1998.

The second principle of constitutional interpretation relevant to this appeal is that a constitutional provision containing a fundamental right is a permanent provision intended to cater for all times to come and must be given an interpretation that realizes the full benefit of the guaranteed right. This principle has been underscored in several decisions of this Court including Attorney General V Uganda Law Society, Constitutional Appeal No. 1 of 2006 and Attorney General v. George Owor, constitutional Appeal No. 01 of 2011.

Turning to this appeal, this Court will therefore have to construe the contested provisions vis-a-vis the provisions of the Constitution bearing in mind the principles laid out above before we can confirm or reverse the findings and declarations of the Constitutional Court. I now proceed to highlight and consider the parties’ respective submissions under each ground of appeal.

Ground 1 of Appeal

This ground was framed as follows:

“That the learned Justices of Appeal erred in law when they held that Section 14(2) of the Trial on Indictments Act does not contravene Article 28(1) of the Constitution of the Republic of Uganda

FHRI submitted that section 14(2) of the TIA violated Article 28(1) of the Constitution. FHRI contended that section 14(2) of the TIA contravened Article 28(1) of the Constitution because an accused person’s conditions for release on bail can be changed at the instance of the State or at the Court’s own volition, without affording the accused a hearing.

Counsel also submitted that section 14(2) of the TIA allows the same Court to increase the amount previously thought reasonable, before hearing the accused. In counsel’s view, this grants Court wide powers to increase the amounts required beyond what may be reasonable.

FHRI’s counsel further contended that the wording of section 14(2) of the TIA allows Court to form an opinion that the amount of an accused person’s bail should be increased without first according the accused person an opportunity to be heard. FHRI also contended that it was only after Court has formed an opinion that the amount of an accused person’s bail should be increased that Court issues a warrant of arrest to cause the accused person to appear before it.

FHRI’s counsel faulted the learned Justices of the Constitutional Court for holding that when an accused person was produced before Court to execute a new bond for an increased amount, he or she would be accorded an opportunity to be heard and required to show cause why the order sought should not be granted.

Furthermore, FHRI further submitted that section 14(2) (a) of the TIA requires an accused person appearing in Court to execute a new bond for the increased bail. FHRI’s counsel contended that this is arbitrary, because upon failure to execute the bond, the accused is given no other option under the subsection, except committal to prison. FHRI’s counsel further reasoned that section 14(2) of the TIA was at variance with section 14(1) of the TIA, which requires the High Court to take from an accused recognizance for an amount that is considered reasonable in the circumstances, before it releases him or her on bail.

FHRI’s counsel prayed to this Court to find and declare section 14(2) of the TIA null and void, to the extent that it contravenes Article28(l) of the Constitution.

The Attorney General refuted FHRI’s submissions. Relying on the doctrine of the purpose and effect of an Act of Parliament enunciated in the case of Queen v. Big Drug Mart Ltd [1985] 1 S.C.R 295, the Attorney General contended that the purpose and effect of section 14(2) of the TIA was to set conditions under which an accused person can be released on bail. The Attorney General further submitted that this principle guided the Constitutional Court when it observed that, ‘the conditions upon which one can be granted bail are grounded in one being given the opportunity to be heard.

The Attorney General disputed FHRI’s contention that section 14(2) of the TIA takes away an accused person’s right to be heard because it allows the High Court to issue a warrant of arrest or commit a person to prison and increase the amount of bail. The Attorney General contended that section 14(2) of the TIA only grants Court ways and means of administering and managing criminal cases, taking into consideration, among others, the gravity of the crime and the chance of absconding of the accused person.

The Attorney General further argued that the application and use of section 14(2) of the TIA was not ad hoc, but rather was based on a judicial hearing, where the accused is given the right to be heard. He further contended that this hearing was for both the accused and the Prosecutor to justify and/or to rebut the grant and/or rejection of bail. The Attorney General also contended that when the accused is heard, then the argument that this is contrary to Article 28 of the Constitution cannot be sustained.

Lastly, the Attorney General submitted that section 14 (2) of the TIA was justified under Article 43(2) (c) of the Constitution, where an accused person who is still presumed innocent, is fairly heard.

Consideration of Ground 1 of Appeal

Article 28 (1) of the Constitution provides as follows:

“In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.”

On the other hand, section 14(2) of the TIA provides as follows:

“Notwithstanding subsection (1), in any case where a person has been released on bail, the court may, if it is of the opinion that for any reason, the amount of the bail should be increased—

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

In dismissing FHRI’s submissions on section 14 (2) of the TIA, Kikonyogo, DCJ who wrote the lead Judgment held as follows:

“On cancellation of bail under section 14(2) of the Trial on Indictments Act, the complaint of Mr. Kakuru is that the accused will be condemned unheard... When he or she is produced before Court, he or she will be given opportunity to be heard. He or she will be required to show cause why the order sought for should not be granted

The language and words of section 14(2) of the TIA would appear to grant powers to the Court to act without giving an accused person a fair hearing before his or her terms of bail are varied. The above observation notwithstanding, I am unable to agree with FHRI submissions that a Court which is considering whether to increase an accused person’s bail or not under section 14(2) of the TIA would do so without giving such an accused person a fair hearing.

Article 28(1) of the Constitution requires the Court to give one a fair hearing before it makes its decision. On the other hand, Article 44 of the constitution provides that the right to a fair hearing is non-derogable. The right to a fair hearing involves, among others, an accused person knowing what he or she is being accused of, to enable him or her adequately prepare for his or her defence. The Constitution binds all institutions and actors, Courts of law inclusive. In light of these provisions, there is therefore no way a Court of law established and functioning under the 1995 Constitution would hold a bail review hearing in the absence of an accused person or reach a decision without first hearing from the accused person.

It should further be noted that the TIA was originally promulgated as a Decree in the President Idi Amin era. The TIA came into force on 6^th August, 1971, 24 years before the coming into force of the 1995 Constitution, which is currently in force in Uganda. This makes the TIA an existing law, which is a subject of Article 274 of the Constitution.

This Article provides in the relevant part as follows:

“Subject to the provisions of this article, the operation of the existing law after the coming into force of this Constitution shall not be affected by the coming into force of this Constitution but the existing law shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Constitution. ”

While the TIA has since been amended, the language in section 14(2) has never been amended to bring it into consonance with our Constitution.

Thus, Article 274 requires Courts to construe section 14(2) of the TIA with such modification as is necessary to require that an accused person must be present and be heard, before the Court can hear and decide to review and/or change the terms of his or her bail.

I also wish to note that it is not in dispute that the High Court has power to grant bail as provided for under section 14(1) of the TIA. A Court of law, which has the power and jurisdiction to make an order, has the power, under the appropriate circumstances to rescind that order or revise the conditions it set earlier. Thus, circumstances may arise which may necessitate Court to revisit and revise the conditions upon which it granted bail to an accused person. For instance, if it is subsequently determined after the grant of bail, that there is a high risk of the accused absconding and not showing up for trial. However, the Court is required to follow Articles 28 and 44 of the Constitution when revising these conditions to ensure that the revision is done within the confines of the Constitution.

In conclusion on ground 1, it is my finding that when section 14(2) of the TIA is read together with the provisions of Articles 28, 44 and 274 of the Constitution as I have already elaborated above, it is clear that section 14 (2) is not inconsistent with the provisions of Article 28(1) of the Constitution.

I therefore agree with the learned Justices of Appeal that section 14 (2) of the TIA is not inconsistent with Article 28 (1) of the Constitution.

Accordingly, I would find that section 14(2) of the TIA, as modified by Articles 274, 28 and 44 of the Constitution requires an accused person to be heard before the Court increases his or her bail amount. I so hold.

Ground 2 of Appeal

This ground was framed as follows:

“That the learned Justices of Appeal erred in law when they held that Section 15 of the Trial on Indictments Act which requires an applicant for bail to prove exceptional circumstances before the order can be made does not contravene Article 23(6) of the Constitution of the Republic of Uganda. ”

I note that some of FHRI’s submissions went outside the scope of ground 2 as framed and extended to other Articles such as 21, 23 (1), 28 (3) (a) & (b) and 43 (2) (c) that were allegedly contravened by section 15 of the TIA. I further note that FHRI did not seek leave of this Court to amend its ground 2 of appeal to incorporate the above provisions. I shall therefore restrict myself to FHRI’s contentions on the constitutionality of section 15 vis-a-vis Article 23 (6) of the Constitution.

FHRI contended that the Attorney General conceded before the Constitutional Court that section 15 was unconstitutional. FHRI faulted the learned Justices of the Constitutional Court for failing to declare this section as unconstitutional following this concession.

Counsel for FHRI further submitted that by requiring an accused person to prove exceptional circumstances, section 15 of the TIA denied such an accused person the right to apply for bail. Counsel for FHRI submitted that the effect of the requirement to prove these exceptional circumstances was that any accused person who did not meet them was automatically barred from exercising his or her right to apply for bail.

Counsel also submitted that section 15 of the TIA takes away the judicial discretion of the Court to grant bail by restricting the Court’s power to grant bail only to the three listed exceptional circumstances provided for in this section.

Counsel contended that automatically barring an accused person who does not meet the above criteria from exercising his or her right to apply for bail and restricting the Courts’ power to grant bail only on three listed exceptional circumstances was contrary to Article 23 (6) (a) of the Constitution.

Counsel further contended that restricting Court to consider only these three exceptional circumstances implied that Court could not consider other reasons that may exist to warrant grant of bail. Counsel for FHRI also contended that Courts should be left to exercise their discretion in respect of bail as opposed to restricting them to only three instances.

In conclusion, counsel for FHRI prayed to this Court to declare section 15 of the TIA as null and void to the extent that it contravened Article 23(6) of the Constitution of Uganda.

Counsel for the Attorney General admitted that section 15 of the TIA was one of the sections he had conceded to at the Constitutional Court as being unconstitutional. However, in his submissions before this Court the Attorney General backtracked on his concession on the unconstitutionality of section 15 of the TIA.

The Attorney General disputed FHRI’s contentions about section 15 of the TIA. The Attorney General argued that the purpose of these exceptional circumstances was to give purpose and effect to the mischief that section 15 of the TIA intended to cure. The Attorney General added that the effect of these exceptional circumstances was to prevent the accused jumping trial and to show the gravity of the offence.

Against this premise, the Attorney General submitted that these exceptional circumstances were not merely brought into play to limit and/or take away the rights of the accused person, but rather to reflect the gravity of the offences and the implications of the offence on society.

The Attorney General prayed that Court finds that section 15 of the TIA does not contravene Article 23(6) of the Constitution.

Consideration of Ground 2 of Appeal

A perusal of the Record of Appeal shows that during the hearing of the Petition at the Constitutional Court, counsel for the Attorney General conceded that section 15 of the TIA was unconstitutional. The Constitutional Court however disregarded the Attorney General’s concession, made its own analysis and later found that section 15 of the TIA was constitutional.

I will first consider the question whether the Constitutional Court erred when it considered the constitutionality of section 15 of the TIA after the Attorney General had conceded to it.

The Petition, from which this appeal arose, originated under Article 137 of the Constitution. Under this Article, the Constitutional Court is vested with power to interpret and declare whether an Act of Parliament is inconsistent with or contravenes the Constitution. The Constitutional Court therefore had a duty to consider and resolve all the claims made in the Petition presented before it and to determine whether the impugned legal provisions were unconstitutional or not. The Constitutional Court cannot therefore be faulted for disregarding a party’s concession.

Agreeing with FHRI’s submissions would have the effect of usurping the power of the Constitutional Court to interpret the Constitution. This is because the Constitutional Court would be turned into a Court that endorses what the parties had agreed to, without going into the merits of the case.

The first contention is that section 15 of the TIA contravenes Article 23(6) of the Constitution because it restricts an accused person’s right to apply for bail by requiring a bail applicant to prove exceptional circumstances. The second contention is that section 15 of the TIA contravenes Article 23(6)(a) because it interferes with the discretion of the Court to grant bail on such terms as the Court considers reasonable.

Turning to the first contention, I note that Article 23(6) of the Constitution guarantees the right of an accused person to apply for bail as follows:

“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 of such conditions as the Court considers reasonable;

(b) ...;

On the other hand, Section 15 of the TIA as amended by the Trial on Indictments (Amendment) Act, 2008 provides as follows:

(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—

that exceptional circumstances exist justifying his or her release on bail; and
that he or she will not abscond when released on bail.

The offences referred to under section 15(2) include offences such as murder, aggravated robbery, treason, terrorism, aggravated defilement, rape, and offences under the Firearms Act.

Section 15(3) of the TIA proceeds to define exceptional circumstances as follows:

In this section, “exceptional circumstances” means any of the following—

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;
a certificate of no objection signed by the Director of Public Prosecutions; or
the infancy or advanced age of the accused.

I note that under Article 23(6)(a) of our Constitution, all accused

persons have a right to apply for bail. This notwithstanding, I also note that under Article 23(6)(a), there is no automatic right to be granted bail to every accused person who applies for bail.

I further note that section 15 of the TIA which is challenged by FHRI does not in any way address itself to the accused person’s right to apply for bail which is guaranteed under Article 23(6) of the Constitution. Rather, the major focus of section 15 of the TIA is on the considerations the Court may consider in the course of determining a bail application. Needless to say, the accused person’s right to apply for bail remains preserved. Section 15 of the TIA only comes into operation when the Court is considering a bail application. That is after an accused person has exercised his or her right to apply for bail.

I therefore find that section 15 does not take away an accused person’s right to apply for bail that is guaranteed by Article 23(6) of the constitution. My finding is further grounded on the fact that section 15 of the TIA existed prior to the promulgation of the Constitution in 1995. Article 2 thereof preserves the supremacy of the Constitution while Article 274 of the same Constitution saves existing laws and requires them to be construed in such a way as to bring them in conformity with the Constitution. It would therefore follow that Article 23(6) of the Constitution which guarantees an accused person’s right to apply for bail cannot be rendered inoperative by a mere provision of a Statute (the TIA).

I shall now turn to consider the second contention of FHRI under this ground which is whether section 15 of the TIA interferes with the discretion of the Court to grant bail on such terms as the Court considers reasonable. Two questions arise under this contention. The first is whether the requirement for an accused person to prove exceptional circumstances contravenes Article 23(6) of the Constitution. The second one is whether the requirement that a Court may refuse to grant bail to an accused person unless he or she proves exceptional circumstances and that he will not abscond, takes away the Court’s discretion to grant bail under Article 23(6) of the Constitution.

I turn to consider the first question. In holding that the requirement for exceptional circumstances was not inconsistent with Article 23(6) of the Constitution, Kikonyogo, DCJ who wrote the lead Judgment of the Constitutional Court held as follows:

“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 mew, the said requirements are justified. Besides they are not mandatory.

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.

Society must be protected from lawlessness. The Court must guard against absconding because there may be a danger of interfering with the evidence or witness.

Article 23 (6) (a) vests in Courts power to grant or decline a bail application made before it. The same Article requires that a grant of bail should be on such terms as the Court considers reasonable. Although Article 23(6)(a) of the Constitution does not give guidance on 5 how Courts are to determine this reasonableness, it is my view that embedded in the reasonableness test is the need for the Court to weigh all relevant factors before granting bail to an accused person.

Furthermore, under Article 126 of the Constitution, judicial power is derived from the people and must be exercised by the Courts established under the Constitution in the name of the people and in conformity with the law, and with the values, norms and aspirations of the people. This Article establishes the supreme importance of the people who are the major beneficiaries of our justice system.

With respect to bail matters, it therefore follows that whereas Court is supposed to bear in mind the rights of an accused person when considering his or her bail application, Court should not lose sight of the needs and interests of society to prevent and punish crimes committed within its midst. This Article imposes on Courts the duty to ensure that they do not only consider the rights of an accused person applying for bail. Rather the Court should also consider the interests of society at large. This in turn calls for the need to balance the competing interests of the accused person on the one hand and society on the other hand. To ensure this balance, Courts must at all times when dealing with a bail application bear in mind this fundamental aspect under Article 126 of the Constitution with regard to exercise of this judicial power.

Furthermore, it should be noted that the TIA was enacted by Parliament which is constituted by the peoples’ representatives. These peoples’ representatives enacted section 15 (1) of the TIA which requires that before Court can grant bail to a person accused of serious crimes such as murder, aggravated robbery, treason, terrorism, aggravated defilement, rape, and offences under the Firearms Act, exceptional circumstances should exist justifying his or her release on bail and that he or she will not abscond when released on bail.

I note that section 15 (3) of the TIA is categorical that .. exceptional circumstances mean any of the following. ’ I am aware that the use of the word ‘means’ in this section appears to be restrictive in character.

The above awareness notwithstanding, I also note that section 15 of the TIA also predates the 1995 Constitution. It is however saved as an existing law under Article 274 of the Constitution which enjoins Courts to construe existing laws, to bring it in conformity with the Constitution. Such construction requires that if Court finds it necessary to consider exceptional circumstances in the course of hearing a bail application involving offences listed under section 15(2) of the TIA, Court should not restrict itself to only considering the exceptional circumstances provided for under section 15 (3) of the TIA. Other ‘exceptional circumstances’ might exist. At the end of the bail hearing, the Court will have to satisfy itself whether it is proper to grant bail and if so, to do so on such terms as the Court considers reasonable.

I shall now proceed to consider whether the requirement of an accused person to prove exceptional circumstances interferes with the Court’s discretion under Article 23(6) of the Constitution.

In holding that section 15 of the TIA did not interfere with judicial discretion of Court to grant bail, Kikonyogo, DCJ held as follows:

“Mr. Kakuru’s fears on the exercise of the Court’s discretion are unfounded because even section 15(1) of the TIA left the Court's discretion intact... Both High Court and subordinate courts are still free to exercise their discretion judicially and to impose reasonable conditions on the applicant.

In the premises, I am unable to agree with Mr. Kakuru that the requirement to establish exceptional circumstances under section 15 contravene Article 23 (6) in that the provision merely provides guidance not direction. The guidelines are clearly stated 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 ...15 (1), 15 (2) and 15 (3) of the TIA not inconsistent with Articles ...23 (6)...of the Constitution. ”

A review of Article 23 (6) (a) shows that Court has discretion to either grant bail or not grant bail. This is evident in the use of the ‘may’ in this Article. The same Article guides that Court can grant bail ‘on such conditions as the Court considers reasonable.

FHRI argued that section 15 of the TIA cited earlier in this Judgment interferes with the judicial discretion of Court to grant bail to an accused person. I note that section 15 (1) of the TIA also uses the word ‘may’ as opposed to ‘shall’. In my view, the use of the word ‘may’ is instructive in resolving the question whether section 15 takes away the judicial discretion of a Court to grant bail.

This Court has not yet interpreted the use of the word ‘may’ in our legislation. However, in the Australian case of Massy v. Council of the Municipality of Yass (1922) 22 SR (NSW) 499, Cullen CJ held as follows:

“The use of the word ‘may’ prima facie conveys that the authority which has power to do such an act has an option to do it or not to do it.”

In another Australian case of Johnson’s Tyne Foundry Pty Ltd v. Shire of Maffra [1949] ALR 89 at 101, it was also held as follows:

“ ‘may’ unlike ‘shall’, is not a mandatory but a permissive word although it may acquire a mandatory meaning from the context in which it is used, just as ‘shall’ which is a mandatory word may be deprived of the obligatory force and become permissive in the context in which it appears. ”

Lastly, in the New Zealand case of Daemar v. Soper [1981] 1 NZLR 66 at 70 the Court was interpreting the use of the word ‘may’ in section 147 (1) of the Summary Proceedings Act 1957. Section 147 (1) provided that ‘when an information has been laid, any district court judge, justice or registrar (not being a constable) may issue a summons to the defendant in the prescribed form.’ The Court held as follows:

*The word ‘may’ where it appears in s 147 of the Summary Proceedings Act 1957 does confer a discretion upon the district judge, justice or registrar (as the case may be) as to whether or not he will issue summons upon the information which has been laid. It is also our opinion that the nature of that discretion is...a discretion which must be exercised in a judicial manner”

The above three persuasive authorities support my finding that the use of the word ‘may’ in section 15 (1) of the TIA preserves the power of the Court to either grant or not to grant bail. Thus, by using the word ‘may’ in section 15(1) of the TIA and not ‘shall’, the High Court retains its discretion to either grant or not grant bail even where these exceptional circumstances listed under section 15(3) of the TIA are not proved in respect of the listed offences in section 15(2) of the TIA.

In my view section 15 of the TIA is one of the enabling provisions that the legislature enacted to guide Courts on how to approach the issue of bail in respect of certain offences. The requirements under section 15 on the part of a bail applicant and on the Court for proof of exceptional circumstances and ensuring that an accused will appear for his or her trial do not contravene Article 23(6)(a) of the Constitution. Section 15 not only preserves the right of an accused person to apply for bail but also the Court’s power to grant bail.

In conclusion on ground 2 of appeal, I have found no merit in FHRI’s contentions that section 15 of the TIA interferes with the discretion of Court to grant bail. It is therefore my finding that section 15 of the TIA:

does not take away the right of an accused person under Article 23(6) to apply for bail before the High Court; (b) does not violate the Constitution by requiring an accused person to prove that exceptional circumstances exist to justify his or her release, where he or she is charged with serious offences triable by the High Court; and (c) does not fetter the Court’s discretion to grant bail to an accused person.

In light of these findings I would hold that section 15 of the TIA does not contravene Article 23 (6) of the Constitution. Ground 2 therefore fails.

Ground 3 of Appeal

This ground was framed as follows:

“That the learned Justices of the Constitutional Court erred in law in holding that Section 75(2) of the Magistrates Courts Act which provides for offences triable by Magistrates Courts but are not bailable by them does not contravene Article 23(6) of the Constitution of the Republic of Uganda."

Counsel for FHRI faulted the finding of the Constitutional Court with respect to the constitutionality of section 75(2) of the MCA. Counsel submitted that section 75(2) of the MCA was a clog to an accused person’s right to apply for bail in as far as it denied Magistrates power to grant bail for offences they had power to try. Counsel contended that there was no basis why a person charged with an offence triable by a Magistrate’s Court could not apply for bail before that Magistrate.

Relying on Article 23(6) of the Constitution, FHRI’s counsel contended that Courts are allowed to hear bail applications, irrespective of whether the Court is a High Court or a Magistrate’s Court. Counsel therefore he argued that section 75 (2) of the MCA interfered with the Magistrate’s discretion to grant bail.

Counsel for FHRI further contended that if a Magistrate had power /jurisdiction to remand a person accused of an offence triable only by the High Court then that Magistrate should also have power to hear a bail application by the remanded accused person appearing before him or her.

Alternatively, counsel for FHRI contended that if a Magistrate’s Court could not hear bail applications for certain offences because they were a preserve of the High Court, then there was no reason why those suspects should be brought before a Magistrate’s Court in the first place as opposed to being taken to the High Court, where they could apply for bail.

In light of the above submissions, FHRI’s counsel prayed to this Court to declare that section 75(2) of the MCA contravenes Article 23(6) of the Constitution.

In reply, the Attorney General contended that the purpose and effect of section 75(2) of the MCA was to provide for offences which are triable by the High Court in respect of which Magistrates cannot grant bail. He also contended that the only act permitted by the law with respect to these offences as far as Magistrates were concerned was for them to commit such accused persons to the High Court.

The Attorney General also submitted that the Constitution and the laws enacted thereunder, like section 75 of the MCA provide for a clear procedure by which an accused person can apply for bail. He reiterated his submissions on grounds 1 and 2 and contended that this process was not ad hoc but rather was subject to rules of reason, justice and law, within the limits of the gravity of the offences committed. The Attorney General prayed that the decision of the Constitutional Court be upheld.

Consideration of Ground 3 of Appeal

Section 75(1) of the MCA gives a Magistrate’s Court before which an accused person is charged with an offence, power to release such an accused person on bail. However, section 75(2) of the MCA curtails Magistrates’ power to grant bail in respect of certain offences as follows:

“(2) a) the offences excluded from the grant of bail under subsection (1) are as follows:-

b) an offence triable only by the High Court;

c) the offence of terrorism and any other offence punishable by more than ten years imprisonment under the Anti-Terrorism Act, 2002;

d) an offence under the Penal Code Act relating to cattle rustling

e) offences under the Firearms Act punishable by more than ten years imprisonment;

(f) (repealed);

g) rape, contrary to section 123 of the Penal Code Act and aggravated defilement under section 129 of that Act;

h) embezzlement, contrary to section 268 of the Penal Code Act;

(i) causing financial loss, contrary to section 269 of the Penal Code Act;

j) corruption, contrary to section 2 of the Prevention of Corruption Act;

(k) 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.

The above provision also captures amendments introduced by the Magistrates Courts (Amendment) Act, 2007.

In holding that section 75(2) of the MCA was not unconstitutional, the Constitutional Court held as follows:

“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.”

With due respect, the learned Justices of the Constitutional Court, in my view failed to address FHRI’s contentions before them. The argument of FHRI was that the Magistrates had power to try some of the offences under section 75 (2) of the MCA and yet could not grant bail to persons charged before them with those offences.

My review of FHRI’s submissions brings out a number of contentions which I must resolve under this ground of appeal. The first contention is that all Courts have power to grant bail under Article 23 (6) of the Constitution. Therefore a Court which has power to try an offence should also have power to grant bail in respect of that offence.

The second contention is that a Court which has power to remand an accused person appearing before it should also have power to grant bail to such an accused person. Therefore, according to FHRI, section 75(2) of the MCA is inconsistent with Article 23 (6) of the Constitution because it curtails Magistrates from granting bail in respect of offences that they have: (a) jurisdiction to try; and (b) power to remand an accused person.

The last contention is that if Magistrates do not have power to grant bail in respect to some offences, then such accused persons suspected of having committed those offences should be produced directly before the High Court rather than being produced before the Magistrates’ Court first. I will now proceed to consider these contentions.

As I noted in my resolution of ground 2, Article 23(6) of the Constitution guarantees an accused person the right to apply for bail. The Article also vests in the Court power to grant bail on such conditions as it considers reasonable.

However, I note that Article 23(6) does not define what Court is being referred to. Nevertheless, Article 257 which is the interpretation Article of our Constitution defines the term ‘Court’ under Article 257(1 )(d) to mean a “Court of judicature established by or under the authority of this Constitution. ’

In the absence of a clear definition by the Constitution of which Court is referred to in Article 23(6), it is only logical for me to infer that the Court referred to under Article 23(6) of the Constitution is such a Court that has jurisdiction to try the offence for which an accused person is applying for bail. It therefore follows that if an offence is triable by a Magistrate’s Court, then such a Court should also have powers to grant bail in respect of such an offence.

I also note that a bail hearing is part and parcel of a criminal trial process. This is because a bail application is usually made after an accused person has already been produced before Court and has been charged with an offence. If this Court has the jurisdiction to try the accused person, logically it should follow that such an accused person should be able to apply to this same Court to be released on bail and the Court should also have power to grant or decline to grant such an accused person bail.

Furthermore, I also note that the responsibility vested in a Magistrate’s Court to hear and dispose of an offence is much heavier than the responsibility to hear and dispose of a bail application. Trying and disposing of an offence, among others, involves taking of evidence and reviewing it, applying the law to the facts/evidence to determine the guilt or innocence of the accused person and the appropriate sentence.

Therefore, it does not make sense to me for a Court to have power to carry out this more complex task and only for it to be divested of power of carrying out a lesser task of hearing and determining a bail application. Essentially hearing a bail application involves determining, among others, whether the accused person: (a) has substantial sureties; (b) is likely to abscond from his or her trial owing to the gravity of the offence; (c) has a fixed place of abode; (d) is likely to interfere with the trial process by either intimidating witnesses or frustrating investigations.

Bearing in mind the provisions of Article 23(6) and my analysis above, it is my finding that if a Court has jurisdiction to try an offence, then such a Court should have power to hear a bail application in respect of that offence.

I will now turn to review the excluded offences under section 75(2) vis- a-vis the parties’ contentions. A review of the offences listed under section 75(2) of the MCA shows that they fall into three categories.

The first category covers offences which have been repealed. These are: (a) embezzlement contrary to section 268 of the Penal Code Act; (b) causing financial loss contrary to section 269 of the Penal Code Act; corruption contrary to section 2 of the Prevention of Corruption Act; and (d) bribery contrary to section 5 of the Prevention of Corruption Act.

The provisions creating these four offences were repealed by sections 68 and 69 of the Anti Corruption Act, 2009 and re-enacted under the same Act. Despite their re-enactment, section 75(2) has never been amended to reflect these changes. I cannot therefore speculate on why the legislators in their wisdom repealed the provisions relating to these listed offences and failed to make an amendment under section 75 (2) of the MCA to reflect these changes. FHRI did not canvass these amendments in its submissions. Bearing in mind the repeal of the provisions relating to these four offences by the Anti Corruption Act, 2009 and the absence of any amendment to section 75(2), I have not found it necessary to discuss them. The second category covers offences where the jurisdiction to try them

is vested in the High Court. These are: (a) an offence triable only by the High Court covered under section 75(2) (a) of the MCA; (b) the offence of terrorism and any other offence punishable by more than ten years imprisonment under the Anti-Terrorism Act covered under section 75(2)(b) of the MCA; and (c) the offences of rape contrary to section 123 of the PCA and aggravated defilement contrary to section 129 of the PCA both covered under section 75(2)(f) of the MCA.

With regard to these offences, I note that a Magistrate’s Court does not have the jurisdiction to try them. It would therefore follow that since the jurisdiction to try these offences is vested in the High Court, then the power to grant bail in respect of these offences was also rightly vested in the High Court by section 75(2). Section 75 (2) of the MCA 10 therefore rightly excluded these offences from those over which Magistrate Courts have power to grant bail.

I therefore find nothing unconstitutional about section 75(2)(a),(b)&(e) which excludes a Magistrate’s Court from granting bail in respect of offences triable only by the High Court.

The third category of offences covered by section 75(2) of the MCA are the ones where a Chief Magistrate’s Court has jurisdiction to try. These are: (a) the offence of cattle rustling covered under section 75(2)(c) of the MCA; and (b) the 'offences under the Firearms Act punishable by more than ten years imprisonment’ covered under section 75(2)(d) of the MCA.

These offences are triable by a Chief Magistrates’ Courts by virtue of section 161 of the MCA which provides in the relevant part as follows:

“(1) Subject to this section, a magistrate’s court presided over

by—

< >a chief magistrate may try any offence other than an offence in respect of which the maximum penalty is death”Under section 266 of the Penal Code Act, cattle rustling is punishable by a sentence of imprisonment for life. This puts the offence of cattle rustling under the jurisdiction of a Chief Magistrates Court. However section 75(2)(c) excludes Chief Magistrates from hearing a bail application with respect to an accused person charged with this offence.

Does this exclusion render section 75(2)(c) of the MCA inconsistent with Article 23(6) of the Constitution? In my analysis of Article 23(6) of the Constitution I found that the Court with jurisdiction to hear/try an offence has power to grant bail in respect of that offence. In this case, the Court referred to is a Chief Magistrate’s Court which has the jurisdiction to try this offence. Bearing in mind my analysis of Article 23(6), I find that this exclusion renders section 75(2)(c) of the MCA inconsistent with Article 23(6) of the Constitution because: (a) it curtails an accused person’s right to apply for bail before a Court that has jurisdiction to try the offence of cattle rustling; (b) it precludes a Court with jurisdiction to try the offence of cattle rustling from hearing an accused person’s application for bail and from granting bail to him or her on such terms it considers reasonable.

I shall now proceed to consider whether section 75(2)(d)of the MCA which excludes Magistrates from granting bail in respect of ‘offences under the Firearms Act punishable by more than 10 years imprisonment’ is inconsistent with Article 23(6) of the Constitution.

A review of the offences under the Firearms Act, Cap 299 Laws of Uganda (as amended by the Firearms (Amendment) Act, 2006) shows that only two offences fall within the jurisdiction of a Chief Magistrate. These are: (i) Manufacturing or assembling any firearm or ammunition contrary to section 11(1) & (3) of the Firearms Act; and (ii) Importation and Exportation of firearms and ammunition without a license contrary to section 23 (1), (2) & (3). The maximum sentence for these two offences is imprisonment for life.

Bearing in mind the provisions of section 161 of the MCA, this puts these two offences under the jurisdiction of Magistrates Courts.

However section 75(2)(d) excludes Chief Magistrates from hearing a bail application with respect to parties accused of committing either of these two offences.

Does this then make section 75(2) (d) inconsistent with Article 23(6) of the Constitution? As I noted earlier in my analysis of Article 23(6) of 5 the Constitution, a Court with jurisdiction to hear/try an offence has power to grant bail in respect of that offence. Section 75(2)(d) goes against the letter and spirit of Article 23(6) of the Constitution because it curtails an accused person’s right to apply for bail before a Court that has jurisdiction to try these two offences under the Firearms Act and precludes a Court with jurisdiction to try these two offences from hearing an accused person’s application for bail.

I therefore agree with FHRI (as far as the listed offences under section 75 (2)(c) & (d) of the MCA) are concerned that the learned Justices of the Constitutional Court erred in law when they held that section 75(2) of the MCA was not unconstitutional.

I note that section 75(2) of the MCA also predates the 1995 Constitution. Article 274 of our Constitution saved these existing laws and requires that they be construed to bring them in conformity with the provisions of the Constitution. Given my findings in respect of section 75(2)(c)&(d) of the MCA and bearing mind Article 274 of the Constitution, it follows that since a Chief Magistrate has power to try the offence of cattle rustling; manufacturing or assembling any firearm or ammunition without a license and Importation and Exportation of firearms and ammunition without a license, he or she has power to consider bail applications in respect of these offences.

Before I take leave of this ground, I note that counsel for FHRI made additional submissions on the power of Magistrates Courts to remand accused persons suspected of having committed offences triable by the High Court only. Flowing from this, counsel for FHRI contended that if Magistrates Courts have power to remand such accused persons then they should also have power to grant such accused persons bail. Alternatively counsel for FHRI contended that if they did not have the power to grant bail because of lack of jurisdiction to try such offences, then upon arrest of such accused persons they should be taken straight to the High Court where they would exercise their right to apply for bail.

I note that FHRI’s submissions raise important legal questions on: (a) whether a remanding Court should have power to grant bail; and (b) whether we should do away with committal proceedings. However find that these issues fall outside the ambit of Ground 3 of appeal 10 which focused on the constitutionality of section 75(2) of the MCA. For that reason, I have not considered them.

Grounds 4 and 5 of Appeal.

Ground 4 of appeal was framed as follows:

“That the learned Justices of the Constitutional Court erred in is law when they did not find that persons committed to trial at the High Court are still entitled to bail as provided for under Article 23 of the Constitution of the Republic of Uganda"

On the other hand, Ground 5 of appeal was framed as follows:

“That the learned Justices of the Constitutional Court erred in law when they did not find that automatic cancellation of bail upon committal of an accused person to the High Court for trial contravenes Article 28(3) (a) of the Constitution of the Republic of Uganda”

Arguing these grounds, FHRI contended that the issue of automatic lapse of bail was considered by the Constitutional Court in Hon. Sam Kuteesa & 2 others v. The Attorney General, Constitutional Petitions Nos. 46 of 2011 & 54 of 2011. He argued that in that decision, the Constitutional Court found that the automatic cancellation of bail, without any right to be heard, based on the mere fact that one is being committed to the High Court for trial, was unconstitutional.

FHRI prayed to this Court to find that the learned Justices of the Constitutional Court erred in law when they did not find that persons committed to trial at the High Court are still entitled to remain on bail pending their trial before the High Court, as provided for under Article 23(6) of the Constitution.

FHRI’s counsel further prayed to this Court to find that the learned Justices of the Constitutional Court erred in law when they did not find that automatic cancellation of bail upon committal, contravenes Article 28(3) (a) of the Constitution.

FHRI prayed that this Court confirms the position of the Constitutional Court in Hon. Sam Kuteesa & 2 others v. The Attorney General (supra) and puts these matters to rest.

The Attorney General associated himself with the decision of the Constitutional Court in Hon. Sam Kuteesa & 2 others v. The Attorney General, (supra) and submitted that the Constitutional Court comprehensively resolved matters relating to the automatic lapse of bail in that case.

Consideration of Grounds 4 and 5 Appeal.

I have carefully considered the submissions of both parties on these two grounds. These grounds concerned the issue of automatic lapse of bail upon committal to the High Court.

A perusal of the record of appeal however shows that the Constitutional Court did not canvass any issue relating to automatic cancellation of bail upon committal to the High Court. The reason for this is not difficult to decipher. As the supplementary Record of Appeal shows, FHRI did not make any allegations to the Constitutional Court on the automatic lapse of bail.

Furthermore, it is evident from the Judgment of the Constitutional Court that no issue was ever framed by the parties on automatic lapse of bail upon committal for the Constitutional Court’s determination.

I have further noted that the decision of the Constitutional Court in Constitutional Petitions Nos 46 of 2011 & 54 of 2011 Hon. Sam Kuteesa & 2 Others v. Attorney General, which was cited by both parties, arose much later after this Petition had been decided in March 2008. There is therefore no way the learned Justices of the Constitutional Court could have referred to it.

In light of the above, it was wrong for FHRI to fault the learned Justices of the Constitutional Court for failing to pronounce themselves on matters that were never put before them. Ground 4 and 5 also fail.

Ground 6 of Appeal

Ground 6 of Appeal was framed as follows:

“That the learned Justices of the Constitutional Court erred in law when they did not find that the burden and onus of proof in a bail application lies with the State."

FHRI’s counsel contended that under Article 23(6)(a) an accused person is entitled to apply for bail and that the State has a burden to prove why the accused should not be granted bail. FHRI further contended the accused person’s role was to apply for bail and not to prove why he or she should be denied bail.

FHRI also contended that it was after the State has given reasons why the accused should be denied bail that the burden shifts to the accused person. Furthermore, FHRI contended that upon hearing the applicant’s application, the Court might grant the accused bail on such conditions as it deems reasonable, since this was entirely an exercise of the Court’s discretion. Counsel further argued that this should however be distinguished from Article 23(6)(b) and (c) of the Constitution, which he contended was instructive and mandatory.

Regarding Article 23(6)(b), FHRI’s counsel contended that where an accused person has been remanded in custody for an offence triable by the High Court, as well as a subordinate court, for sixty days before trial, the person was entitled to be released on bail on such conditions as the Court considers reasonable.

With regard to Article 23(6)(c), counsel contended that where an accused person has been remanded in custody for an offence triable only by the High Court for one hundred and eighty days before the case is committed to the High Court, the person was entitled to be released on bail on such conditions as the Court considers reasonable.

In FHRI’s view, once an accused clocked the mandatory period on remand, the Court was under obligation to release the accused on bail, nothing that there was no requirement on the accused person’s part either to apply for bail or give reasons why the accused should be released on bail.

In the circumstances, FHRI contended that the burden and onus of proof fell squarely on the State to give reasons why the accused person should not be released on bail. Furthermore, that any attempt by the Court to deny the accused bail without valid reasons being given by the State was a clog on the right to bail, and therefore unconstitutional.

FHRI also argued that the Court’s power in this regard only lies in setting conditions that will ensure the accused person’s return to stand trial, but not to deter him or her from being released on bail. Counsel further submitted that in setting the conditions, the Court was expected to set conditions that did not contravene the Constitution.

In conclusion, counsel invited Court to find that under Article 23(6)(b) and (c) of the Constitution, the burden and onus of proof in a bail application lies with the State.

In response, the Attorney General submitted that this issue was never raised in the Petition filed in the Constitutional Court.

The Attorney General submitted that it was therefore improper and an abuse of the procedure of this Court for FHRI to smuggle into Court a matter that was never canvassed in the Constitutional Court. The Attorney General prayed that this Court decline to consider this ground. He reiterated his prayer that this Court upholds the decision of the Constitutional Court on the matter of bail and dismiss this Appeal.

Court’s Consideration of Ground 6 of Appeal

I have perused the submissions of both parties to the Constitutional Court. A perusal of the declarations sought by FHRI in its Petition confirms that no such declaration was ever sought from the Constitutional Court. I agree with the Attorney General that no issue on the burden and onus of proof in bail applications was ever framed for the Constitutional Court to determine. The Constitutional Court therefore did not pronounce itself on this issue and cannot be faulted for not doing so. Ground 6 of Appeal therefore fails.

Costs

In its Petition before the Constitutional Court, FHRI prayed for costs. However, the records of proceedings of three members of Coram show that FHRI withdrew its prayer for costs. The records of proceedings of the other two members are silent on this issue. Be that as it may, in the lead judgment of Kikonyogo, DCJ which the rest of the members on Coram entirely agreed with, she made no order as to costs since the petition was brought in public interest.

FHRI prayed for costs in its Memorandum of Appeal to this Court. However, counsel for FHRI did not submit on this prayer in their submissions. In the same regard, the Attorney General did not make any submissions on costs.

The issue of award of costs in public interest litigation matters and what such costs should cover was considered in two recent decisions of this Court, namely Kwizera Eddie v. Attorney General, Constitutional Appeal No. 01 of2008 and Muwanga Kivumbi v. Attorney General, Constitutional Appeal No. 06 of 2011. The position of the Court in these two decisions is that costs, even in constitutional matters, ordinarily follow the event, as provided for under section 27 of the Civil Procedure Act (hereinafter referred to as the CPA). Despite my reservations on the applicability of section 27 of the CPA to constitutional appeals and applications which I elaborated in my Judgments in the above two appeals, I am still bound by the majority decision of the Court in Muwanga Kivumbi (supra) on the applicability of section 27 of the CPA in constitutional matters.

The Constitutional Court declined to award costs to FHRI on grounds that this was a public interest matter. There is no dispute that the Petition from which this appeal arose was a public interest petition. In Constitutional Petition No. 20 of 2006, FHRI described itself as a Non Governmental Organization whose objectives include, among others, the protection and promotion of human rights, provision of legal aid, advocating for legal reform, and ensuring observance of human rights.

I therefore agree with the Constitutional Court that FHRI filed this Petition in public interest and that it would not be proper to award costs to them. Accordingly, because this was a public interest matter and no submission was made on the prayer for costs by FHRI, I would not award costs to FHRI.

Conclusion

In conclusion, I make the following findings:

< >On ground 1, I find that the learned Justices of Appeal did not err when they held that section 14(2) of the TIA did not contravene Article 28(1) of the Constitution. Ground 1 should fail.

On ground 2, I find that the learned Justices of Appeal did not err when they held that section 15 of the TIA did not contravene Article 23(6) of the Constitution. Ground 2 should fail.

On ground 3, I find that the learned Justices of Appeal partly erred when they held that section 75(2)(c)8s(d) of the MCA did not contravene Article 23(6) of the Constitution. Ground 3 should partly succeed.

On ground 4, I find that the issues raised in this ground were never canvassed at the Constitutional Court. Ground 4 should fail.

On ground 5, 1 find that the issues raised in this ground were never canvassed by FHRI at the Constitutional Court. Ground 5 should fail.

On ground 6, I also find that the issue raised therein was never canvassed at the Constitutional Court. Ground 6 should fail.In light of these findings, I would partially allow the appeal and make the following declarations and orders:

< >That section 14 (2) of the Trial on Indictments Act construed with Article 274 of the Constitution is not inconsistent with Article 28(1) of the Constitution as an accused person should always be accorded a hearing before his or her terms of bail are revised.

That section 15 of the Trial on Indictments Act construed with Article 274 of the Constitution is not inconsistent with Article 23(6) of the Constitution because it does not take away the right of an accused person to apply for bail.

Construed with Article 274 of Constitution, section 15 of the Trial on Indictments Act which requires a person accused of a capital offence to prove exceptional circumstances before he or she is granted bail is not inconsistent with Article 23(6) of the Constitution.

That section 15 of the Trial on Indictments Act construed with Article 274 of the Constitution does not fetter the Court’s discretion to grant bail to a person accused of a capital offence and is therefore not inconsistent with Article 23(6) of the Constitution. 5) That section 75(2) (c) of the Magistrates Courts Act which: (a) denies an accused person the right to apply for bail before a Chief Magistrate in respect of the offence of cattle rustling and (b) excludes a Chief Magistrate from considering such a bail application and yet he/she has jurisdiction to try this offence, is inconsistent with Article 23(6) of the Constitution.

< >That section 75(2) (d) of the Magistrates Courts Act which: (a) denies an accused person the right to apply for bail before a Chief Magistrate in respect of the offences of Manufacturing or assembling any firearm or ammunition without a license and Importation and Exportation of firearms and ammunition without a license and (b) excludes a Chief Magistrate from considering bail applications with respect to these offences and yet he/she has jurisdiction to try them, is inconsistent with Article 23(6) of the Constitution. The following orders of the Constitutional Court which were not challenged in this Appeal are upheld:

< >Section 16 of Trial on Indictments Act contravenes Articles 20, 23(6) and 28 of Constitution and is null and void to the extent of the inconsistency.

Section 76 of Magistrates Courts Act is null and void to the extent of inconsistency with Articles 20, 23(1), 23(6), 28(1) and 28(3) of the Constitution in so far as it infringes on the constitutional rights to liberty and speedy trial. (3) Sections 219, 231 and 248 of UPDF Act, which subject accused persons to lengthy periods of detention are inconsistent with Articles 20, 23(6), 28(1) and 28(3) of the Constitution.

< >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 andvoid to the extent of inconsistency.Lastly, each party will bear their own costs of this appeal.

Dated at Kampala this 26^th day of October 2018

JUSTICE DR. ESTHER KISAAKYE

JUSTICE OF THE SUPREME COURT

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: KATUREEBE, C.J; TUMWESIGYE; KISAAKYE; MWANGUSYA; NSHIMYE; OPIO-AWERI; MWONDHA; J.J.S.C)

CONSTITUTIONAL APPEAL NO. 03 OP 2009

BETWEEN

FOUNDATION FOR HUMAN RIGHTS INITIATIVE::::::::::::::::::::::: APPELLANT

AND

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

JUDGMENT OF KATUREEBE, CJ

The facts of this case and the background leading to this appeal are well set out in the judgment of Dr Kisaakye, JSC. I am also in agreement with Her Lordship’s findings and conclusions. I also agree that each party should bear its costs. However, I would wish to add my thoughts on grounds 2 and 3 of appeal.

Ground 2 of Appeal was framed as follows:

“That the learned Justices of Appeal erred in law when they held that Section 15 of the Trial on Indictments Act which requires an applicant for bail to prove exceptional circumstances before the order can be made does not contravene Article 23 (6) of the Constitution of the Republic of Uganda. ”

In arguing this ground, counsel raised two questions, namely: Whether the concession by the Respondent as to the unconstitutionality of Section 15 of the Trial on Indictments Act (TIA) deprived the Constitutional Court of the jurisdiction to investigate, make a finding and a declaration in regard to the constitutionality of that provision of the law; and Whether Section 15 of the TIA contravenes Article 23 (6) of the Constitution of the Republic of Uganda in so far as it requires an applicant for bail to prove exceptional circumstances in certain offences.

I will first deal with the first question. The jurisdiction of the Constitutional Court is conferred by Article 137 of the Constitution of the Republic of Uganda. Under Article 137 (1) of the Constitution:

“Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the constitutional court.”

Article 137 (3) of the Constitution provides:

A person who alleges that—

an Act of Parliament or any other law or anything in or done under the authority of any law; or
any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this Constitution, may petition the constitutional court for a declaration to that effect, and for redress where appropriate.

From the above provisions, it is clear that it is the Court that is endowed with the mandate to interpret the Constitution and to make declaration(s) as to the constitutionality of any law, act or omission by any person or authority. In my view, once a complaint is made before the Constitutional Court that any law, act or omission is inconsistent with the Constitution; the Court has a duty to pronounce itself on such a matter. Where the parties make concessions on any given point, the Court will take that into account, but there is nothing to prevent the Court from making a different finding from the one conceded by the parties if the Court so deems.

From the judgment of the Constitutional Court in the present case, it is clear to me that the Court was alive to their mandate in that regard. Despite the concession by the Respondent in regard to Section 15 of the TIA, the Court still went ahead to determine the constitutionality of the said provision. That, in my view, is what the Court was supposed to do and I find no error in that approach by the Constitutional Court. This question is therefore answered in the negative, in agreement with my sister, Kisaakye, JSC.

The second question raises a substantial point of law, i.e. whether section 15 sets conditions precedent before a person is granted bail.

Section 15 of the TIA provides:

(1) Notwithstanding Section 14, the court mail refuse to grant bail to a person accused of an offence specified in sub-section (2) if he or she does not prove to the satisfaction of the court -

that exceptional circumstances exist justifying his or her release on bail; and
that he or she will not abscond when released on bail.

2. An offence referred to in sub-section (1) is -

an offence triable only by the High Court;
the offence of terrorism and any other offence punishable by more than ten years imprisonment under the Anti-Terrorism Act,

(baa) the offence of cattle rustling contrary to section 266 of the Penal Code Act;

d)………..

rape, contrary to section 123 of the Penal Code Act; (ea) aggravated defilement contrary to section 129 (3) and (4) of the Penal Code Act;
embezzlement, contrary to section 268 of the Penal Code Act;
causing financial loss, contrary to section 269 of the Penal Code Act;
corruption, contrary to section 2 of the Prevention of Corruption Act;
bribery of a member of a public body, contrary to section 5 of the Prevention of Corruption Act; and

(J) any other offence in respect of which a magistrate’s court has no jurisdiction to grant bail. In this section, “exceptional circumstances” means any of the following -

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;
a certificate of no objection signed by the director of Public Prosecutions; or
the infancy or advanced age of the accused.

(Emphasis added)

Article 23 (6) of the Constitution as amended by the Constitutional (Amendment) Act No. 11 of 2005 provides:

Where a person is arrested in respect of a criminal offence—

the person is entitled to apply to the court to be released on bail, and the court man grant that person bail on such conditions as the court considers reasonable;
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;
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 committed to the High Court, that person shall be released on bail on such conditions as the court considers reasonable. (Emphasis added)

As was rightly pointed out by the Constitutional Court in its judgment, Article 23 (6) (a) of the Constitution gives an accused person an entitlement to apply for bail but not to be granted bail. In the case of Uganda V Col. (RTD) Dr. Kiiza Besigye Constitutional Reference No. 20 of 2005, it was noted that when an accused person applies for bail, the Court retains the discretion whether or not to grant bail to the accused person which discretion has to be exercised judiciously. The only time when the court has no discretion is where a person has been on remand for the periods stipulated in Article 23(6) (b) and 23 (6) (c) supra. In those situations, the court shall grant bail but retains the power to determine the conditions upon which the bail is granted.

One of the arguments put up by learned Counsel for the Appellant was that the provisions of Section 15 of the TIA have the effect of fettering the discretion of the Court in the course of the Court exercising its discretion. At this point and before an answer is provided towards this argument, we need to examine the institution of bail in considerable depth.

The institution of bail is meant to protect and guarantee the fundamental rights of the individual to liberty, the presumption of innocence and the due process of the law on the one hand; and the societal interests on the other hand. The most important condition is that the accused will turn up for his trial and will not interfere in any way with evidence. This calls for a balance by the courts in exercise of this judicial function between the interests of the accused and those of the community. It may sometimes become necessary to consider the immediate interests of the accused even particularly with regard to his personal security, particularly in grave offences like murder, rape, child kidnap e.t.c where there may be a real danger to the accused person from members of the public where the offence was committed.

To be able to effectuate the said balance, the courts must resort to their mandate under the Constitution. In Uganda, the judicial mandate is set out under Article 126 (1) of the Constitution thus:

“Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people

The Court will bear the above provision in mind as it considers an applicant for release on bail. What does the law say about bail? What are the values, norms and aspirations of the people as far as bail is concerned? Often, Court releases a person on bail and this is followed by strong disapproval from members of society, particularly in serious offences like murder. Indeed, in some jurisdictions such offences are not bailable at all.

In my view, the answers to the above questions bring to the fore the fact that when exercising discretion regarding the grant of bail, courts do not act in isolation. First the courts must act within the jurisdiction given to them by law. Under Article 129(3) it is Parliament which by legislation, makes “provision for the jurisdiction and procedure of the courts.” The courts must have recourse to legislative provisions which are the official way people’s demands become law, through their elected representatives, i.e. Parliament. I believe that looking at the law may be one way to ascertain people’s values, norms and aspirations. When such laws are in place to regulate an issue like bail for instance, such guidance by the legislature cannot be deemed to be an interference with the judicial function. Such guidance cannot be deemed to be a fetter on the discretion of the courts. Of course there is always the caveat that the law passed by Parliament must be consistent with the Constitution.

Going by the above therefore, I am unable to agree with the reasoning of learned Counsel for the appellant that provisions of an Act of Parliament that are meant to guide the exercise of discretion by the courts when considering the grant of bail are per say inconsistent with or contravene the Constitution. In principle such provisions are in line with the Constitutional provisions.

I will now look at the specific provisions in issue. Section 15 (1) (supra) puts forward two elements, namely:

the accused may be called upon to prove that exceptional circumstances exist justifying his/her release on bail; and
the accused has to prove to the satisfaction of the court that he/ she will not abscond when released on bail.

It was argued that the requirement for the accused person to prove exceptional circumstances to the satisfaction of the court before he/she could be released on bail imposes a burden on the accused and is inconsistent with the accused person’s presumption of innocence as provided for under Article 28 (3) (a) of the Constitution. In my view, bail applications are normally pre-trial proceedings and finding of guilt is not one of the elements of those proceedings. The Presumption of innocence remains until the accused has been proved guilty after due process of a fair trial. As such the impugned burden imposed on the accused person at that stage has nothing to do with his or her guilt or innocence. But even if the bail procedures were to be taken as part of the trial procedures, one would have to look at other relevant provisions of the Constitution. It is trite that when interpreting the Constitution, provisions should be looked at as a whole so as to create harmony and completeness. In that regard, consideration must be made of Article 28 (4) (a) of the Constitution which states as follows:

“Nothing done under the authority of any law shall be held to be inconsistent with -

Clause (3) (a) of this article, to the extent that the law in question imposes upon any person charged with a criminal offence, the burden of proving particular facts”.

The requirement in Section 15 that the accused may be required to prove certain circumstances relating to an application for bail appears to be consistent with Article 28 (4) of the Constitution. It is also important to note that the Constitution itself creates two categories of offences: those considered minor and triable by Magistrate’s Courts as well as by the High Court, and those considered more serious and triable only by the High Court. This is discerned from Article 23 (6) (b) and 23 (6) (c) of the Constitution. In my view, the provisions bring out the purpose of section 15 of TIA that for more serious offences, the accused may be required to prove certain circumstances for the court’s consideration in determining whether to grant or deny bail.

Furthermore and still on the requirement for the accused person to show existence of exceptional circumstances, it was argued by Counsel for the appellant that since the right to liberty is a non-derogable right to which a person is entitled for as long as they have not been pronounced guilty of the offence they are accused of, courts should be left to exercise their discretion and not to be restricted to the three instances set out by Section 15 (3) of the TIA.

In reply, it was submitted by Counsel for the Respondent that determining existence or not of exceptional circumstances in a particular case is not an adhoc exercise by the judicial officer but one founded on the discretion of court to grant bail and impose reasonable conditions whose object is not to contravene the Constitution but to give purpose and effect to the mischief conceived in section 15 (3) of the TIA. Counsel submitted that the effect may be to prevent the flight of an accused person, it may reflect on the gravity of the case or the public perception as regards the case. Counsel therefore argued that the requirement to prove exceptional circumstances was not meant to limit or take away the rights of an accused person but to take into consideration the nature of the offence and the implications of the offence to the society.

In considering the above submissions, I wish to start by commenting on the right to liberty. It is not true as submitted by the appellant’s counsel that the right to liberty is non-derogable. Neither under the Uganda Constitution nor under international human rights law is the right to liberty described as non-derogable. Under Article 44 of the Constitution, the specific rights and freedoms for which any derogation is prohibited are provided as:

freedom from torture and cruel, inhuman or degrading treatment or punishment;
freedom from slavery or servitude;
the right to fair hearing;
the right to an order of habeas corpus.

In fact, Article 23 (1) of the Constitution gives eight specific instances where a person may be deprived of personal liberty, particularly paragraph (c) which states as follows:

23 (1) ‘No person shall be deprived of personal liberty except in any of the following cases.

for the purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of Uganda’

Secondly, even if the requirement for an accused person to prove existence of exceptional circumstances were considered to be a restriction on the person’s liberty, the test would be whether such a restriction is beyond what is acceptable and demonstrably justifiable in a free and democratic society or what is provided in the Constitution in accordance with Article 43 (1) and (2) (c) of the Constitution.

I have already considered what is involved in the exercise of the right to apply for bail. One must give a bit of background:

Prior to the 1995 Constitution, there were categories of offences that were not bailable, for example, murder or rape. An accused person could spend 365 days on remand without bail. The 1995 Constitution changed that. All offences are bailable and an accused has a right to apply for bail. As already explained he/she is not entitled to get the bail because that depends on the Judge exercising discretion whether to grant bail or not. The question then becomes: What matters is the Judge or Magistrate supposed to consider before exercising his or her discretion?

I have already considered Article 23(6) about the discretion of the Court to grant bail or to set such conditions as the Court finds reasonable. In my view, in exercise of such discretion, the court cannot keep a blind eye on the nature and circumstances of the case and how it is viewed by society. A person who is a serial rapist is viewed with horror by society and the Judge ought to take that into consideration where those matters are brought to the Judge’s attention. A person accused of murder or a repeat offender evokes certain concerns in society. Parliament has a duty to pass legislation to deal with such situations. Where Parliament makes a law giving guidance to the Court in the conduct of bail proceedings, such guidance cannot, in my view, be deemed an unnecessary and unconstitutional restriction to the fundamental right of liberty and freedom of an accused person. It is in my view a necessary, acceptable and demonstrably justifiable restriction in a free and democratic society that an accused person may be required to prove certain circumstances, to help the Court exercise its discretion. I have already pointed out the provisions of Article 28 (4) of the Constitution with regard to when an accused person may be required by law to prove certain facts.

This question has been considered in other jurisdictions.

In a Paper entitled The Bail Jurisprudence of Ghana, Namibia, South Africa and Zambia, Samuel Kwesi Amoo. In a Publication entitled Forum on Public Policy Journal (Vol.2008 No.2) Pages 1-2 has this to say:

“Bail jurisprudence involves the balancing of the values relating to the rights of the individual and the security of the state; it involves the balancing of the dictates of positivism and rationality and how these choices impact on the individual and the society; it is a cultural phenomenon since the values of the society dictate the content of bail jurisprudence.”

Samuel Kwesi (supra pp. 6-7) goes ahead to state that globally, there are three models/ approaches to the right to bail as a human right in the course of balancing the right of the individual to liberty and the security of the community. He sets out the models as follows:

The first model is premised on a policy and constitutional position that makes the Legislature the repository of the determination of the right to bail and leaves the Judiciary with the implementation of broad legislative directives.

The second model or approach is premised on the constitutional position that grants the sole determination of the right to bail to the Judiciary, subject to a minimum degree of legislative intervention. This approach does not prescribe for bailable and non-bailable offences. The accused or arrestee has the prima facie constitutional right to apply for bail, irrespective of the seriousness of the alleged offence. The first model/approach is adopted by countries such as Zambia, Ghana, India and certain states in the United States and the second model/approach by countries such as Namibia. The third model/ approach may be described as an amalgam or hybrid of the first two models/approaches. The power over determination of matters relating to bail is generally vested in the Judiciary. There is no legislative mandatory refusal of bail; the law does not draw a distinction between bailable and non-bailable offences. However, there is a legislative intervention in the form of legislative guidelines that the Courts must follow in the exercise of their discretion to grant or refuse bail in serious or scheduled offences. This is the South African model (Emphasis added).

Two things are clear from the above analysis by the learned author. One is that in each of the three models/approaches, there is defined level of legislative intervention. Two is that the Ugandan bail jurisprudence properly fits into the third model/approach, also practiced by South Africa. There is nothing to make me think that the third model/approach, which to me appears the most accommodative, is not acceptable and demonstrably justifiable in a free and democratic society. In fact as already indicated, Uganda moved from a situation of where some offences were non-bailable for up to 365 days, before the promulgation of the 1995 Constitution, to where every offence is bailable upon application. The court must exercise its discretion. The legislation merely offers guidelines which the court should consider. The language of Section 15 (1) of TIA is illustrative as to the discretion of the court. It states: “Notwithstanding section 14, the court may refuse to grant bail It does not say “the court shall refuse bail....” The court retains its discretion.

In the South African case of Bongani Dlamini vs The State Case No. (1) CCT 21/98 (Constitutional Court of South Africa) (consolidated with 03 other Constitutional Cases), the constitutional validity of some provisions of South African law relating to bail was considered. KRIEGLER J. held (at pages 39 - 40 and 60) to the effect that when a Legislature makes provisions intended to guide the courts when considering bail applications, “a court is not enjoined to accord decisive weight to the one or the other or all the personal factors mentioned ... The legislature [would be] providing guidelines as to what are factors for, and what are factors against the grant of bail. Whether and to what extent any one or more of such pros or cons are found to exist and what weight each should be afforded, is left to the good judgment of the presiding judicial officer. ... Such guidelines are no interference by the legislature in the exercise of the judiciary’s adjudicative function: they are a proper exercise by the legislature of its functions, including the power and responsibility to afford the judiciary guidance where it regards it as necessary.” (Emphasis added)

In respect of the extent and effect of the restriction of the legislative provisions, KRIEGLER J. held:

“In order to determine whether the limitation is permissible ... it is necessary to consider whether the limitation would be considered reasonable and justifiable in democratic societies based on freedom, equality and dignity. In many democratic societies, there are legislative provisions which permit a court to deny bail to accused persons in certain circumstances. In considering statutory provisions in other jurisdictions, a cautionary note must of course be sounded. Each system of criminal justice will vary and the application of substantive rules will depend upon procedures and practices peculiar to each system. The ... consideration of the rules governing bail in jurisdictions other than our own [South Africa] demonstrates merely that bail is not an absolute right in any jurisdiction, and that limitations on the right to bail vary considerably.” (Emphasis added)

It is my opinion therefore that by requiring an applicant for bail to prove exceptional circumstances before the Court can exercise its discretion as to whether to grant bail or not does not contravene either Article 23 (6) or Article 28 of the Constitution of the Republic of Uganda. I have therefore found no error on the part of the Constitutional Court in that regard, court retains its discretion all the time.

Ground 3 of Appeal

This ground was framed as follows:

“That the learned Justices of the Constitutional Court erred in law in holding that Section 75(2) of the Magistrates Court Act which provides for offences triable by Magistrates Courts but are not bailable by them does not contravene Article 23 (6) of the Constitution of the Republic of Uganda.”

The submissions of both parties on this ground of appeal were aptly summarised by my learned sister, Kisaakye JSC in her judgment. The provisions of Section 75 (1) and (2) of the Magistrates Courts Act (MCA) are also set out therein.

According to the submissions of Counsel for the Appellant, by prohibiting Magistrates Courts from granting bail in offences over which they have powers to try, Section 75 (2) becomes inconsistent with Article 23 (6) of the Constitution which guaranteed the right of an accused person to apply for bail when produced before the court on the one hand, and also guaranteed the court’s right to entertain the bail application and determine whether to grant bail or not.

I understand the above argument as meaning that what makes S.75 (2) of the MCA inconsistent with Article 23 (6) of the Constitution is the fact that while Article 23 (6) gives an accused person a right to apply for bail the moment he/she is produced before the court, S. 75 (2) prohibits such an accused person from making such an application. Similarly it is contended that while the court is entitled to entertain such an application and then exercise its discretion, the said right or power is blocked in respect of Magistrates Courts in the case of the scheduled offences.

In my view, the contradiction appears to be where the law gives jurisdiction to a Magistrate’s Court to try an offence and then in another part of the law, it states that the magistrates Court cannot grant bail. It appears that the legislature considered that some offences are so serious that bail for them must only be granted by the High Court even though the Magistrate’s court can then go ahead to try them. To counsel this creates a clog on the right of the person to apply for bail once produced before the court. The question is whether this apparent contradiction amounts to inconsistency with the Constitution.

In my view, jurisdiction of the court is the matter of the statute. Article 129(3) of the Constitution states as follows:

“Subject of the provisions of this Constitution, Parliament may make provisions for the jurisdiction and procedures of the court.”

Section of 75(2) of the MCA must be seen in that context. The person’s right to apply for bail is preserved, but he/she is to exercise it in the court that Parliament has vested with jurisdiction to hear and grant an application for bail in respect of that offence.

However, it is trite that laws made by parliament must be consistent with the Constitution. Any law that is inconsistent with the Constitution is null and void to the extent of the inconsistency (Article 2 of the Constitution).

We must bear in mind that we are dealing with the matter of the fundamental human right to apply for bail and to a speedy trial. It is an established principle of constitutional interpretation that a constitutional provision containing a fundamental human right must be given a dynamic, progressive, liberal and flexible interpretation so as to extend the benefit of the same to the maximum possible (OKELLLO OKELLO JOHN LIVINGSTONE AND 6 OTHERS VS. ATTORNEY GENERAL CONSTITUTION PETITION NO. 07 OF 2005)

In my view, the person’s right to apply for bail must be given such interpretation. The Supreme Court decision in ATTORNEY GENERAL VS SALVATORI ABUKI, CONSTITUTIONAL APPEAL NO. 1 OF 1998, lays down the rules of interpretation that the purpose and effect of legislation must be taken into account when considering the constitutionality of legislation. In practical terms what would be the effect of requiring a person appearing before a court that is competent to try the offence with which he/she is charged, but must first go to the High court to apply for bail, bearing in mind that High court circuits are not yet evenly distributed throughout the country? Take example of a person charged with the offence of cattle rustling in Karamoja. This is an offence which is triable by a Chief Magistrate but for which bail can only be granted by the High Court. Such a person would need to first go to Soroti or wait until a Judge travels to Moroto for session before that person can apply for bail. In my considered view this is a clog on his/her right to apply for bail and on the right to a speedy trial.

I therefore concur with my learned sister, Kisaakye, JSC that Section 72(2) of the Magistrate’s Courts Act is inconsistent with Article 23(6) of the Constitution. The law must be amended or construed so that the court with jurisdiction to try the offence also has jurisdiction to hear a bail application.

On the question as to why an accused person has to be produced before a Magistrate’s Court which in any case has neither power to try the case nor to consider bail, my view is that this is a necessary judicial and administrative measure. If all the capital offences were to be filed straight to the High Court and the mentioning and committal processes were to be done in the High Court, such would occasion immense confusion and unnecessary backlog in the High Court. I therefore find no harm in that kind of arrangement. This provision was meant to ensure that a person is produced in a court of law and may be remanded to a place authorised by law. The makers of the Constitution were alive to the history where accused persons continued to be in custody of police or other Security Agencies in unknown places. This was the basis for the requirement that a person arrested must be produced in a Court of law within 48 hours and all the conditions stipulated in Article 23 of the Constitution must apply. Applying for bail is one option. I would allow ground 3.

Therefore this court finds that:-

On ground 1, the learned Justices of Appeal did not err when they held that section 14(2) did not contravene Article 28(10) of the Constitution. Ground 1 fails.
On ground 2, the learned Justices of Appeal did not err when they held that section 15 did not contravene Article 23(6) of the Constitution. Ground 2 fails.
On ground 3, by majority of 4 to 3 the learned Justices of Appeal partly erred when they held that section 75(2) (c) &

Of the MCA did not contravene Article 23(6) of the Constitution. Ground 3 partly succeeds.

On ground 4, the issues raised in this ground were never canvassed at the Constitutional Court. Ground 4 fails.
On ground 5, the issues raised in this ground were never canvassed by FHRI at the Constitutional Court.

Ground 5 fails.

On ground 6, the issues raised in this ground were never canvassed at the Constitutional Court. Ground 6 fails.

Accordingly this court partially allows the appeal and makes the following declarations and orders:

That section 14(2) of the Trial on Indictments Act construed with Article 274 of the Constitution is not inconsistent with Article 28(1) of the Constitution as an accused person should always be accorded a hearing before his/her terms of bail are revised.
That section 15 of the Trial on Indictments Act construed with Article 274 of the Constitution is not inconsistent with Article 23(6) of the Constitution because it does not take away the right of an accused person to apply for bail.
That Construed with Article 274 of Constitution, section 15 of the Trial on Indictments Act which requires a person accused of a capital offence to prove exceptional circumstances before he /she is granted bail is not inconsistent with Article 23(6) of the Constitution.
That section 15 of the Trial on Indictments Act construed with Article 274 of the Constitution does not fetter the Court’s discretion to grant bail to a person accused of a capital offence and is therefore not inconsistent with Article 23(6) of the Constitution.
By a majority of 4 to 3 that section 75(2) (c) of the Magistrates Court Act which: (a) denies an accused person the right to apply for bail before a chief Magistrate in respect of the offence of cattle rustling and (b) excludes a Chief Magistrate from considering such a bail application and yet he or she has jurisdiction to try this offence, is inconsistent with Article 23(6) of the Constitution.
By a majority of 4 to 3 that section 75(2) (d) of the Magistrates Court Act which: (a) denies an accused person the right to apply for bail before a Chief Magistrate in respect of the offences of Manufacturing or assembling any firearm or ammunition without a license and Importation and Exportation of firearms and ammunition without a license and (b) excludes a Chief Magistrate from considering bail applications with respect to these offences and yet he has jurisdiction to try them, is inconsistent with Article 23(6) of the Constitution.

The following orders of the constitutional court which were not challenged in this Appeal are upheld:

Section 16 of Trial on Indictments Act contravenes Articles 20, 23(6) and 28 of Constitution and is null and void to the extent of inconsistency.
Section 76 of Magistrates Courts Act is null and void to the extent of inconsistency with Article 20, 23(1), 23(6), 28(1) and 28 (3) of the Constitution in so far as it infringes on the constitutional rights to liberty and speedy trial.
Section 219,231 and 248 of UPDF Act, which subject accused persons to lengthy periods of detention are inconsistent with Article 20, 23(6), and 28(3) of the Constitution.

Section 25(2) of the Police Act is inconsistent with Article 20, 23(4), 23(6) and 28(1) of the Constitution and such as is null and void to the extent of inconsistency.

Lastly, each party will bear their own costs of this appeal.

Dated this 26^th day of October 2018

Bart M Katureebe

CHIEF JUSTICE

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: KATUREEBE, CJ; TUMWESIGYE; KISAAKYE; NSHIMYE; MWANGUSYA; OPIO-AWERI; MWONDHA; JJ.SC)

CONSTITUTIONAL APPEAL NO: 03 OF 2009

BETWEEN

FOUNDATION

FOR

HUMAN RIGHTS INITIATIVE:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

AND

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

[Appeal from the Judgment of the Justices of the Constitutional Court (Mukasa- Kikonyogo, DCJ, Okello, Mpagi-Bahigeine, Kitumba and Byamugisha, JJA) dated 26^th March, 2008 in the Constitutional Petition No. 20 of 2006]

JUDGMENT OF TUMWESIGYE. JSC

I have had the benefit of reading in draft the judgment of Dr. Kisaakye, JSC, and I am in agreement with her decisions on all the grounds. I only wish to say the following on grounds 1 and 3.

Ground 1 of Appeal states as follows:

"That the learned Justices of Appeal erred in law when they held that section 14(2) of the Trial on Indictments Act does not contravene Article 28(1) of the Constitution of the Republic of Uganda."

The provision in section 14(2) of the Trial on Indictments Act empowers the court to increase bail amount if it is of the opinion that for any reason the bail amount should be increased. The appellant attacks this provision as being unconstitutional because it gives power to the court to increase the bail amount without affording the accused the right to be heard. The Constitutional Court held that the provision is not unconstitutional because when the accused is brought before the court, he or she will be heard.

According to Article 23[6][a] of the Constitution courts are given power to grant bail. This power must be exercised judicially. In Uganda unlike in some other countries, an accused has a right to apply for bail, and the court will consider the accused’s application and decide whether or not to grant it.

When a judge decides to release the accused on bail, the judge, according to section 14 of the Trial on Indictments Act, will take from the accused "a bond, with or without sureties, for such an amount as is reasonable in the circumstances of the case.."

S. 14(2) of the Trial on Indictments Act gives the judge the discretion to increase the amount of bail if the judge is of the opinion that the amount of the bail should be increased. The appellant's argument is that this provision contravenes Article 28(1) of the Constitution which is, among other things, about the right to a fair hearing.

I believe a High Court judge would increase the amount of the bail after being convinced that the bail conditions he or she previously ordered were inadequate, or after receiving information that the accused person is about to breach the conditions of his or her bail. Suppose, for example, the judge received information that the accused was about to abscond or was trying to interfere with witnesses in his or her trial, would this not require the judge to review the conditions of the accused’s bail? I believe it would. And since such matters are usually of utmost urgency, section 14(2) of the Trial on Indictments Act gives the judge power "to issue a warrant for the arrest of the person released on bail directing that he or she should be brought before [the court] to execute a new bond for an increased amount".

I believe that when the person is brought to court he or she would be heard. The accused's right to be heard at his or her trial is preserved and not in any way endangered. Bail is not cancelled by court. It is only the amount of bail that is increased.

Accordingly, in my view, ground 1 of appeal should fail.

Ground 3 of Appeal

The appellant framed this ground as follows:

"That the learned Justices of the Constitutional court erred in law in holding that s. 75(2) of the Magistrates Courts Act which provides for offences triable by Magistrates courts but are not bailable by them does not contravene Article 23(6) of the Constitution of the Republic of Uganda.”

Section 75(1) of the Magistrates Courts Act (MCA) gives Magistrates courts power to release accused persons on bail when they are brought to court "charged with any offence other than the offences specified in subsection (2)" of section 75.

The listed offences in section 75(2) are the following:

An offence only triable by the High Court

b) The offence of terrorism and any other offence punishable by more than ten years imprisonment.

An offence under the Penal Code relating to cattle rustling.
Offences under the Fire Arms Act punishable by more than ten years.

e) Repealed

f) Rape, contrary to section 123 of the Penal Code Act and aggravated defilement under section 268 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 Penal Code Act

i) Corruption, contrary to section 2 of the Prevention of Corruption Act

(j) Bribery by 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.

The Anti-Corruption Act has repealed paragraphs (i) and (j) above, and paragraph (f) is only triable by the High Court so it falls under paragraph (a).

Counsel for the appellant argued that the holding of the Constitutional Court that offences triable by magistrates' courts but not bailable by them as provided under s.75 (2) of the Magistrates Courts Act was wrong in law. Counsel submitted that there was no basis why a person charged with an offence triable by a magistrates court could not apply for bail before that magistrate.

Counsel argued that by allowing magistrates to hear these cases while curtailing their right to grant bail, s. 75(2) was a clog to an accused person's right to apply for bail.

The Attorney General conceded that the impugned provision was unconstitutional.

The Constitutional Court held that section 75(2) was not unconstitutional. It stated:

"With regard to section 75(2) of the MCA, it is not correct to say, on the evidence before the 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 does not contradict the accused's inherent right of innocence."

With respect, the Constitutional Court's holding in Ground 3 was not addressing the issue that had been posed in the ground of appeal, i.e. whether section 75(2) of MCA which did not allow magistrates courts to release on bail persons charged with offences triable by the magistrates did not contravene Article 23(6) of the Constitution.

The criminal jurisdiction of magistrate’s courts is contained in section 161(1) of the MCA which provides as follows:

"Subject to this section, a magistrates's court presided over by-

A Chief Magistrate may try any offence other than an offence in respect of which the maximum penalty is death.
A magistrate grade 1 may try any offence other than an offence in respect of which the maximum penalty is death or imprisonment for life.

Therefore, with respect to offences listed under section 75(2] of MCA there is no doubt that a chief magistrate's court and a grade 1 magistrate's court have jurisdiction to try them though the subsection denies the same courts jurisdiction to handle applications for bail in respect of those offences.

Section 75(4](b] of MCA provides:

"The High Court may, in any case where an accused person is appearing before a magistrate's court -

where the case is one mentioned in subsection(2), direct that the accused person be released on bail."

Therefore, the jurisdiction to release persons charged in magistrate’s courts in respect of the specified offences on bail is directly taken away from magistrates courts and given to the High Court by this provision.

The issue which this court has to resolve, therefore, is whether section 75(2) of MCA contravenes Article 23(6] of the Constitution. Article 23(6] provides as follows:

"Where a person is arrested in respect of a criminal offence -

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;
........................

(c)................................ "

I agree with Hon. Justice Dr. Esther Kisaakye, JSC, in her lead judgment that "Article 23(6) does not define what court is being referred to. Nevertheless, Article 257(1)(d) of the Constitution defines the term "court" to mean a court of judicature established by or under the authority of this Constitution". In the absence of a clear definition by the Constitution which court is referred to under Article 23(6), it is only logical to infer that the court which is referred to under Article 23(6) of the Constitution, is such a court which has jurisdiction to try the offence for which an accused applying for bail is charged with."

On the basis of this interpretation alone, I would say that denying magistrates power to hear and determine bail applications in respect of offences the magistrates have jurisdiction to try, contravenes Article 23 (6)(a) of the Constitution.

The letter and spirit of Article 23(6} of the Constitution is to grant bail to any person charged with an offence because under Article 28(3} of the Constitution every person charged with a criminal offence is presumed to be innocent until proved guilty or has pleaded guilty. The Kenyan Judiciary Guidelines on Bail and Bond (Publication of the national Council on the Administration of Justice, March, 2015) puts it very clearly as follows:

Every accused person shall be presumed innocent (Article 50(2) of the Constitution). This is the primary rationale for the requirement of the Constitution that an arrested person has the right to be released on bail or bond. The presumption of innocence dictates that accused persons should be released on bail or bond whenever possible. The presumption of innocence also means that pre-trial detention should not constitute punishment, and the fact that accused persons are not convicts should be reflected in their treatment and management.

There may be good reasons why a person charged with an offence should not be released on bail. For example, the person may be a security risk or he or she may be considered likely to fail to turn up at his or her trial. There may also be reason to believe that such a person may interfere with witnesses. That is why the Constitution requires a person charged with a criminal offence to apply for bail so that the court may consider all these factors and decide whether or not to grant it. Mulenga, JSC, stated in Attorney General vs. loseph Tumushabe. Constitutional Appeal No. 03 of 2005 as follows:

In the case of a person accused of a criminal offence applying for release on bail pending trial, the court's principal consideration is whether such release is likely to prejudice the pending trial.

Magistrate's courts try offences within their geographical jurisdiction. In my view, they are better placed than the High Court to assess whether conditions are favorable or not for the release on bail of a person charged before them. If you can entrust magistrates with jurisdiction to try accused persons in respect of offences which, for example, carry sentences of life imprisonment, there cannot be any sound reason why such magistrates should not be entrusted with power to hear bail applications in respect of such offences.

Rights provided under the Constitution should be realizable and not be made illusory by placing hurdles and obstacles in the way for their realization. I believe that denying magistrates power to release on bail persons charged with offences which such magistrates have jurisdiction to try, puts unnecessarily obstacles against release of such persons on bail.

We take judicial notice of the fact that presently Uganda has about 20 High Court circuits that serve over 82 magisterial areas in about 130 districts. Requiring a person charged with an offence triable by a magistrate to seek his or her bail from the High Court that is in most cases a long distance away from the court where the person is going to be tried, subjects such a person to undue delay, expense and hardship, and may even result in his or her abandoning the effort to seek bail altogether. Laws should be made taking into account the conditions in the society such laws are enacted to operate in. These hardships would especially affect the poor and other disadvantaged groups. They would render the constitutional right to bail in this respect illusory. Courts have a duty to protect the rights of such persons. The unconstitutionality of section 75(2) of MCA should equally be considered in this light.

In conclusion on this ground, it is my view that the Court of Appeal erred to hold that section 75(2) of MCA is not unconstitutional. In my view therefore ground 3 should succeed.

Dated this 26^th day of October 2018

Hon. Justice. Jotham Tumwesigye

JUSTICE OF THE SUPREME COURT

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

[Coram: Katureebe, CJ; Tumwesigye; Kisaakye; Nshimye; Mwangusya; Opio-Aweri; & Mwondha, JJ. S. C]

CONSTITUTIONAL APPEAL NO. 03 OF 2009

BETWEEN

FOUNDATION FOR HUMAN RIGHTS INITIATIVE::::APPLICANT

AND

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

(Appeal from the Judgment of Justices of the Constitutional Court (Mukasa- Kikonyogo, DCJ, Okello, Mpagi-Bahigeine, Kitumba, & Byamugisha, JJA) dated 26^th March 2008 in Constitutional Petition No. 20 of 2006).

JUDGMENT OF JUSTICE OPIO-AWERI, JSC

I have had the opportunity to read in draft the judgment of my learned sister Dr. Kisaakye, JSC. I agree with her in part. I do not agree with her on ground 3.

The background to this appeal is well laid down in the lead judgment by Dr. Kisaakye. It is therefore not necessary to reproduce it.

Ground 3 which is the basis of my disagreement reads as follows

“The learned Justices of the Constitutional Court erred in law in holding that section 75 (2) of the Magistrates Court Act which provides for offences triable by Magistrates Courts but are not bailable by them does not contravene Article 23 (6) of the Constitution of the Republic of Uganda”.

Section 75 (1) of the Magistrates Court Act (MCA) grants Magistrates jurisdiction to release accused person on bail when he or she is brought to Court, charged with any offence other than the offences specified in subsection (2) of section 75.

Section 75 (2) lists the specified offences as follows:-

Rape contrary to section 123 of the Penal Code Act and aggravated defilement under section 129 of the Penal Code Act.
Causing financial loss, contrary to section 269 of the Penal Code Act.
Bribery of a member of a Public body contrary to Section 5 of the Prevention of Corruption Act.

(j) Any other offence in respect for which Magistrates Court has no jurisdiction to grant bail.

Learned counsel for the appellant contended that Section 75 (2) of MCA contravened the right to bail in away that it denies a Magistrates Court Powers to grant bail over offences they have powers to try. Further that since Magistrates Court have no power to hear bail application regarding offence that are a strict preserve of the High Court, then there was no reason for such suspects to appear before the Magistrates Court in the first place. Counsel emphasised that by allowing Magistrates to hear those cases while denying them right to grant bail, Section 75 (2) was a clog to an accused person’s right to apply for bail.

The Attorney General conceded that the impugned provision was unconstitutional.

While considering the above point, the Constitutional Court held rightly in my view that Section 75 (2) of the MCA was not unconstitutional. They observed as follows:-

“With regard to Section 75 (2) of the MCA, it is not correct to say, on evidence before Court that it contravenes the provision of Article 23 (6). The accused 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 does not contradict the accused’s inherent right of innocence. I do not accept the argument that the limitation amount to suggestions that the accused is guilty of the offence he is charged with”.

It is clear from the above observation that Section 75 (2) is not a clog to the accused’s right to bail. It only states that for certain specified offences, the accused right to bail is shifted to the High Court for some purpose. It is not correct to say that because Magistrates have power to try those offences, they should also have powers to release on bail.

That is the rule of logic. Law is not necessarily about logic. It is about what society considers to be just. So if a particular offence is a threat to society, parliament can pass law to restrict it as it did with Section 75 (2) of the MCA. Under Article 79 of the Constitution, parliament has power to make laws on any matter for the peace, order development, and good governance of Uganda. Pursuant to that, parliament passed section 75 (2) of the MCA. There is a rebuttable presumption that parliament is always right while carrying out its functions. That presumption has not been rebutted.

Article 23 (6) provides for the general right to apply for bail, Section 75 (2) on the other hand simply provides for where to apply for bail in regard to specified offences. The language of the Act is plain and unambiguous and should therefore be given a literal meaning to meet the minds of the legislators. The rational for literal rule was stated as far back in the case of R v Judge of the City of London Court (1892).

“To prevent courts from delving into the political arena, in order to preserve the dichotomy between the functions of parliament and courts, the former creating the law and the latter in theory applying the law”.

For the above reasons, I do not agree with my learned sister and others that the right to hear bail rights should be predicated on jurisdiction to try an offence. To say so would tantamount to
reading words into the Act and the Constitution what was not intended by the legislators and the framers of our Constitution. Indeed there are instances in the Act where the rights to grant bail are provided in respect of Capital Offences which are only triable by the High Court.

For the above reasons, and with greatest respect, I do not agree that Section 75 (2) is in conflict with article 23 (6) of the Constitution or at all.

Ground three accordingly fail.

Dated this 26^th day of October 2018

JUSTICE OPIO AWERI

JUSTICE OF SUPREME COURT

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

CONSTITUTIONAL APPEAL NO. 03 OF 2009.

[CORAM: KATUREEBE, C.J, TUMWESIGYE, KISAAKYE, NSHIMYE, MWANGUSYA,

OPIO-AWERI, MWONDHA, JJSC.]

BETWEEN

FOUNDATION FOR HUMAN RIGHT INITIATIVE:::::::::::::::APPELLANT

AND

ATTORNEYGENERAL:::::::::::::::::::::::::::::: RESPONDENT

[Appeal from the decision of the Constitutional Court (Mukasa-Kikonyongo, DCJ, Okello,

Mpagi-Bahigeine, Kitumba&Byamugisha, JJA) Constitutional Petition No. 20 of 2006, dated 26^th March 2008. ]

JUDGMENT OF A.S NSHIMYE. JSC.

I have had the opportunity of reading in advance the draft lead judgment of my learned sister Dr. E. Kisaakye JSC and agree with her reasoning and conclusion that the appeal ought to succeed in part.

I also agree with the orders she has proposed in respect to grounds 1,2,3,4,5 and 6 as well as the order that each party should bear their own costs.

However, I wish to add my supportive opinion in respect to ground 1 of the appeal. It was to the effect;

That the learned Justices of Appeal erred in law when they held

that Section 14(2) of the Trial on Indictments Act does not contravene Article 28(1) of the Constitution of the Republic of Uganda.

Article 28(1) of the constitution provides that;

10 7/7 the determination of civil rights and obligations or any

criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law

While Section 14(2) of Trial Indictments Act sought to be nullified provides:

“Notwithstanding Subsection (i), in any case where a person has been released on bail. The court may, if it is of the opinion that any reason, the amount of bail should be increased.

bond for an increased amount; and

In my view Article 28(1) presupposes that the person granted bail, would be released by our independent and impartial courts established under the Constitution and other enabling laws. They would be manned by competent and well trained judicial officers, in

different areas of the law and in particular, principles of human rights and natural justice.

I would be surprised if a court, either on its own motion or on application of the prosecution would exercise its powers under section 14(2) of the Trial on Indictments Act without giving an opportunity to be heard to the person whose bail terms are sought to be varied.

Article 28(1) guarantees a person charged with any criminal charge the right to a fair hearing. The argument of counsel for the appellant was that Section 14 (2) of the Trial On Indictments Act tampers with an accused’s rights in Article 28 (1) because it gives courts the power to increase the amount of bail upon which a person was released without being given a hearing, is misconceived.

It is my view that a careful reading of Section 14 (2) of the Trial On Indictments Act shows that, whereas a court may exercise its power to increase or revise bail amount, it may do so only after the person released on bail is first heard, before a new bond for an increased amount is executed.

My considered view is that a court in exercising the power in Section 14 (2) to increase bail amount, has to follow the provisions Section 14(1) which are to the effect that an accused person who qualifies for bail is given the right to be heard first before taking from him or her recognizance. Furthermore, the order of the presiding judicial officer increasing bail terms is not final. It is subject to an appeal to higher courts, which may remove whatever injustice that may have been caused to the person concerned,

For the foregoing reasons, I would come to the conclusion that Section 14(2) of the Trial on Indictments Act does not contravene Article 28(1) of the Constitution.

Dated at Kampala this 26^th day of October 2018

A.S NSHIMYE

A.G JUSTICE OF THE SUPREME COURT

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram: Katureebe CJ, Tumwesigye, Kisaakye, Nshimye; Mwangusya; Opio- Aweri; Mwondha; JJ. S. C.

CONSTITUTIONAL APPEAL NO. 03 OF 2009 Between

FOUNDATION FOR HUMAN RIGHTS INITIATIVE................................................. APPELLANT

And

ATTORNEY GENERAL.................................................................................................. RESPONDENT

(Appeal against the judgment of the Constitutional Court hy Mukasa Kikonyogo, DCJ; Okello, Mpagi, Bahigeine, Kitumba, Byamugisha, JJA dated 20^th of March 2008 in Constitutional Court No. 20 of2006)

JUDGMENT OF MWONDHA JSC

I had the opportunity to read in draft the judgment of my learned sister Kisaakye JSC and I agree with the judgment apart from ground 3.

The background to the appeal was ably laid out in the judgment of Kisaakye JSC so I do not have to reproduce it here.

The appeal had six grounds which were laid down in the memorandum of appeal. Grounds 4 and 5 were found to have been settled in the case of Hon. Sam Kuteesa and two others v. Attorney General Constitutional Petition No. 54 of 2011.

It was held that the bail of an accused person does not automatically lapse on committal.

Ground 6 was not considered or argued before the Constitution Court so this Court could not consider it as well considering the provisions of the Constitution Article 132(2) and (3) which provide:-

An appeal shall lie to

the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law.

Any party aggrieved by a decision of the Court of Appeal sitting as a Constitutional Court is entitled to appeal to the Supreme Court against the decision; and accordingly, an appeal shall lie to the Supreme Court under Clause (2) of this article. See Misc. Application No. 02 of 2000 Uganda Poly Bags Ltd. V. Development finance Co Ltd., this Court, held that it has jurisdiction to entertain only an appeal to which Article 132 of the Constitution is applicable. The decision against which the appeal was intended was not a decision of the Constitutional Court in that case.

From the above, there was no way that ground could be subject of the appeal so it is dismissed.

Since grounds 4, 5 and 6 had been resolved as stated above, the only grounds in contention were grounds 1, 2 and 3.

It is important to note that this being a Constitutional appeal, arising from matters which required Constitutional Interpretation, in the determination of Constitutionality of an Act of Parliament, I found it necessary to reproduce some of the principles of interpretation which guide Court in such matters / cases.

These among others are:-

The entire Constitution must be read together as an integral whole and no one particular provision should destroy the other but sustain each other. See

Petition No. I of 1997 SC.) This is the rule of harmony, the rule of

completeness and exhaustiveness.

All provisions concerning an issue should be considered together to give effect to the purpose of the instrument not in isolation of the other see (South Dakota v. North Carolina 192, US 268, 1940

LED 448).

The Constitution is the Supreme Law of the land and forms the standard upon which all other laws are judged. Any law that is inconsistent with or in contravention of the Constitution is null and void to the extent of its inconsistency, (see Article (2) (2) of the Constitution of the Republic of Uganda and also

Election Petition No 02 of 2006 (SC) Rt. Dr. Col Kiiza Besigye v. Y. K. Museveni.)

A Constitutional provision containing a fundamental human right is a permanent provision intended to cater for all times to come and therefore should be given a dynamic, progressive, liberal and flexible interpretation keeping in view the ideals of the people , their social economic and political cultural values so as to extend the benefit of the same to the maximum possible (see Okello Okello John Livingstone and 6 others v. Attorney General and Another Constitutional Petition No. 07 of 2005) In determining the Constitutionality of a legislation, its purpose and effect must be taken into consideration. Both purpose and effect are relevant in determining the constitutionality of either emanated by the object of the legislation it intends to achieve See Attorney

General v. Salvatori Abuki Constitutional Appeal No 01 1998 UG

SC. 7 [25 May 1999]

The National objectives and Directive Principles of State Policy are also a guide in the interpretations and in applying the Constitution and any other Law among others. Article 8A of the Constitution is instructive for applicability and or enforcement of the National objectives.

I would proceed to consider the 3 remaining grounds Ground I:

The learned Justices of Appeal erred in law when they held that section 95 14 (2) of the Trial on Indictments Act does not contravene Article 28 (I) of the constitution of the Republic of Uganda.

Section 14 (2) of the T.I.A cannot be inconsistent and or in contravention with Article 28 (I) of the Constitution for the reason that, the long title of the T.I. A. provides for the purpose of the legislation in my view. It provides An Act to consolidate the law relating to the trial of criminal cases on indictment before the High Court and for matters connected therewith and incidental there to.

It is a cardinal principle of Constitutional Interpretation that, where words or phrases are clear and unambiguous they must be given their primary plain, ordinary or natural meaning. The language used must be construed in its natural and ordinary meaning. Where the language of the Constitution or Statute sought to be interpreted is imprecise or ambiguous, a liberal, general or purposeful interpretation should be given to it. Attorney General v. Tinyefunza (Supra).

The purpose and object of the legislation together with the effect has to be taken into consideration. See Principle 5 supra .

The word consolidates means according to Blacks Law Dictionary 9^th Edn:

To combine or unify into one mass or body;
Civil Procedures, to combine through Court Order two or more actions involving the parties or issues into a single action ending in a single judgment or at time in separate judgments.

The Act’s purpose is wide so as to cater for matters connected therewith and incidental thereto. The natural ordinary meaning therefore should be given to the word consolidation.

The right to a fair hearing is protected therein before an independent and impartial Court or tribunal and consolidation did not do away with the rights of an accused person.

Ground 2:

The Learned Justices of Appeal erred in law when they held that

section 15 of the Trial on Indictment Act which requires an applicant for bail to prove exceptional circumstances before the order can be made does not contravene Article 23 (b) (b) of the Constitution of the Republic of Uganda.

It is clear that the accused only has a right to apply for bail and when he/she applies it is upon the discretion of Court that he or she is released on bail or not. Release on bail is not automatic. My view is that even when the special circumstances have been proved the Court has a discretion to grant or not to grant bail, considering the nature and circumstances of the case.

Counsel for the appellant premised his arguments on Articles 20 (I), 23 (I) (4) and (b), 28 (I) and (3) in isolation of other provisions of the Constitution on the same subject. Considering the principle laid down that “all provisions concerning an issue should be considered together to give effect to the purpose of the instrument not in isolation of the other.” (South Dakota v. North Carolina supra), Section 15 of the T.I.A. cannot be unconstitutional.

Article 43 of the Constitution provides the general limitation on fundamental and other human rights and freedoms as here under:-

(1) In the enjoyment of the rights and freedoms prescribed in this chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.

Public interest under this article shall not permit:-

Political persecution

(b) Detention without trial

Any limitation of the enjoyment of the rights and freedoms prescribed by this chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society or what is provided in this Constitution.

There was no evidence adduced on record which showed where it was pleaded and proved that the effect of the limitation on granting bail after exceptional circumstances have been proved was beyond what was acceptable or demonstrably justifiable in a free democratic society or what was provided for in the Constitution as Article 43 (2) (c) provides.

The arguments and submissions of Counsel for the appellant were therefore from the bar not supported at all with evidence. For instance the argument, that S. 15 of T.I.A was sanctioning detention for the accused. I find it hanging and too far-fetched.

The offences covered in the Trial on Indictments Act are very serious offences and that is why they are only heard before the High Court. They are aggravated robbery, defilement and rape.

Parliament which enacted the law is the legislative arm of Government. Under Article 79 (I) of the constitution it is empowered to make laws on any matter for the peace, order, development and good governance of Uganda.

In interpreting these provisions Article 126 (I) of the Constitution must be borne in mind. It provides:-

Judicial power is derived from the people and shall be exercised by the Courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people.

It is a cardinal principle of Constitutional interpretation as already stated above that the entire Constitution must be read as an integral whole and no one particular provision should destroy the other among other things. See

Attorney General v. Tinyefunza (Supra). We have to keep in mind the ideals of the people, their social economic and political cultural values (see Okello Okello, John Luke Livingstone and 6 others (supra). So this ground would fail.

Ground 3 “The learned Justices of the Constitutional Court erred in law in holding that Section 75 (2) which provides for offences triable by the magistrates Court but are not bailable by them does not contravene Article 26 (6) of the Constitution of the Republic of Uganda.”

I do not accept the submission of Counsel for the appellant that there was no basis for a person charged with an offence triable by the Magistrate’s Court could not apply for bail before the Magistrate. Neither do I accept Counsel’s submission that by allowing Magistrates to hear these cases while curtailing their right to grant bail, section 75(2) was a clog to an accused person’s right to apply for bail.

Section 75(2) list the offences which a Magistrate Court cannot release an accused person on bail.

(a) An offence only triable by the High Court

The offence of terrorism and any other offence punishable by more than ten years imprisonment.
An offence under the Penal Code relating to cattle rustling.
Offence under the Fire arms Act punishable by more than 10 years
Rape contrary to Section 123 of the Penal Code Act and aggravated defilement under S. 129 of the Penal Code Act
Embezzlement, contrary to Section 268 of the Penal Code.

(h) Causing financial loss, contrary to section 269 of the Penal Code Act.

(i) Bribery of a member of a Public body contrary to Section 5 of the Prevention of Corruption Act

(j) Any other offence in respect for which Magistrates Court has no jurisdiction of grant of bail.

The Magistrates Court Act which was amended by Act 7 of 2007 was enacted by the legislative arm of Government (Parliament) empowered to make provisions having the force of law in Uganda as already stated in this judgment. There was no evidence on record to imply that the amendment on record to imply that the amendment was not debated or that the appellant perused the proceedings of the Hansard of Parliament and the amendment and found that there was no basis for enacting those provisions.

I respectfully do not agree with the conclusion of my Learned Sister in her Judgment at page 24 that the Constitutional Court in stating that “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, the Constitutional Court failed to address FHRI’s contentions before them.”

There was no failure by the Constitutional Court to address the appellant’s contentions.

The argument by Counsel of FHRI to the effcct that Magistrates had power to try some of the offences under S. 75(2) of the Magistrates Court Act and yet could not grant bail to them, that is correct but it does not make the provision unconstitutional in my view.

There is a big difference between hearing a case, and hearing, and granting a bail application. Granting a bail and hearing a case are not synonymous. That is why in its wisdom the Constitutional Court concluded

“that the accused person’s right to bail is not absolute. It has be enjoyed within

the confines of the Law................. denial to grant bail does not contradict the

accused inherent right of innocence........................ ” .

In any case when considering grant of bail depending on the gravity of the offence and bearing in mind Article 126 (1) of the Constitution, there is no doubt that the offences specified are very serious offences that Magistrate Courts ability to balance Article 126 (I) of the Constitution so as not to abuse the values, norms and aspirations of the people would not be balanced.

The Learned Judge in the judgment categorically states that; “In her re- assured interpretations by the fact that ordinarily the High Court is only vested with appellate jurisdiction with respect to the matters arising from Magistrate Courts. It therefore follows that Section 75(2) of the MCA is not only unconstitutional but also anomalous in as far as it vests primary jurisdiction for hearing bail applications in respect of offences triable by Magistrates’ in the High Court.”

For the reasons I have given above in this judgment with respect I disagree.

According to the principles of Constitutional Interpretation some of which I have reproduced in this judgment and in particular the principle that the entire Constitution must be read as an integral whole and not one particular provisions should destroy the other Attorney General v. Tinyefunza (supra) Article 257(1)(d) of the Constitution should not be read in isolation of Article 79 and 126(1) of the Constitution.

Section 75(4) of the MCA is very clear. It provides: The High Court may in any case where the accused person is appearing before a Magistrate Court (a) where the case is not one mentioned in subsection (2) direct that any person to whom bails 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) when the case is one mentioned in Subsection (2) direct that the accused persons be released on bail.

Subsection (b) as above reproduced does not refer to appellate jurisdiction of the High Court in respect of matters arising from Magistrate’s Courts alone. The High Court in my understanding of the provision above has both original and appellate jurisdiction. And it is because of the seriousness of the offences so specified in Section 75(2) of MCA

I do not accept Counsel for the appellant’s submissions that by allowing Magistrates to hear these cases while curtailing their right to grant bail was a clog to an accused’s right to apply for bail. There was no evidence on record to demonstrate that this was a clog to an accused’s right to apply for bail. On the contrary S.75 provides for everything in respect of bail.

I agree with the Constitutional Court finding that “with regard to Section 75(2) of the MCA, it is not correct to say, on evidence before Court that it contravenes the provisions of Article 23(6). The accused persons to bail is not absolute. It has to be enjoyed within the confines of the law. There has to be enjoyed within the confines of the law. There has to be a Constitutional balance of every body’s rights. Denial to grant bail does not contradict the accused’s inherent right of innocence. I do not accept the argument that the limitation amount to suggestions that the accused is guilty of the offence he is charged with.” I agree with the above conclusion I therefore, uphold the Constitutional Court finding and ground 3 must fail too.

On the issue of costs and the applicability of S.27 of the Civil Procedure Act. This Court under the Constitutional Court (Petitions and References) Rules Statutory Instruments 2005 No 91 Rule 23 (I) and (2) provides “Civil Procedure Act and rules to apply

(1) Subject to the provisions of these Rules the practice and procedure in

respect of a petition or a reference shall be regulated as nearly as may be in accordance with the Civil Procedures Act and the rules made under that Act and the Court of Appeal may consider necessary in the interest of justice and expedition of the proceedings.

(2) For purposes of appeals against a decision of the Court, the Supreme Court Rules shall apply with such modifications as may be necessary. The Judicature (Supreme Court Rules) Directions S. I 13-11 Rule 2 provides for the Application and sub rule 3 provides “An appeal from the Constitutional Court to the Court shall be heard 300 as a Civil appeal and part 5 is titled, Fees and Costs.”

See Rules 101 - 103 in particular From Rule 2 (3) it’s clear to me reading it together with Rule 2 (I) and the Constitutional Court (Petitions and References) Rules, that this Court is at liberty to apply the Civil Procedure Act and the rules made under the Act with modifications as the Court may consider necessary.

Accordingly all grounds of the appeal are dismissed with no order to costs bearing in mind that the matters involved are fundamental to a stable and free democratic society.

Dated at Kampala this 26^th of October 2018.

Mwondha

JUSTICE OF THE SUPREME COURT

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram: Katureebe CJ, Tumwesigye, Kisaakye, Nshimye; Mwangusya; Opio- Auieri; Mwondha; JJ.S.C.

CONSTITUTIONAL APPEAL NO. 03 OF 2009

Between

FOUNDATION FOR HUMAN RIGHTS INITIATIVE............................... APPELLANT

And

ATTORNEY GENERAL............................................................................ RESPONDENT

[Appeal against the judgment of the Constitutional Court by Mukasa Kikonyogo, DCJ; Okello, Mpagi, Bahigeine, Kitumba, Byamugisha, JJA Constitutional Petition No. 20 of 2006, dated 26^th of March 2008 in]

JUDGMENT OF MWANGUSYA, JSC

I have had the opportunity of reading in draft the judgment of my sister, Dr. Kisaakye - Kitimbo, JSC and save for ground three of the memorandum, I agree with the rest of the judgment.

The background to the appeal is well laid out in the judgment of Dr. Kisaakye, JSC and I need not to repeat it here. However, I find it necessary to reproduce the grounds of appeal to enable me lay emphasis on the impugned sections of the Trial on Indictments Act and the Magistrates Courts Act which were subject of the petition in the Constitutional Court.

The memorandum of appeal sets out the following grounds

That the learned Justices of Appeal erred in law when they held that Section 14 (2) of the Trial on Indictments Act does not contravene Article 28 (I) of the Constitution of the Republic of Uganda.
That the learned Justices of Appeal erred in law when they held that section 15 of the Trial in Indictments Act which requires an applicant for bail to prove exceptional circumstances before the order can be made does not contravene Article 23(6) of the Constitution of the Republic of Uganda.
That the learned Justices of Constitution (sic) Court erred in law holding that Section 75 (2) does not which provides for offences triable by Magistrates Court but are not bailable by them contravenes Article 23 (6) of the Constitutional of the Republic of Uganda.
That the learned Justices of Appeal erred in law when they did not find that persons committed to trial at the High Court are still entitled to bail as provided under Article 23 of the Constitution of the Republic of Uganda.

That the learned Justice of the Constitutional Court erred in law when they did not find that automatic cancellation of bail upon committal of an accused person to the High Court for trial contravenes Article 23(6) of the Constitution of the Republic of Uganda.

The learned justices of the Constitutional Court erred in law when they did not find that the burden and onus of proof in a bail application lies with the state.

At the hearing of the appeal the issue raised in grounds 4 and 5 of the Memorandum of Appeal had been settled in the case of Hon. Sam Kuteesa and two others Vs Attorney General Constitutional Petition No. 54 of 2011 where it was held that the bail of an accused persons does not automatically lapse on committal. Ground 6 did not arise because it had not been canvassed before the Constitutional Court. So the only issues in contention are those raised in grounds 1, 2 and 3.

The appellant’s Counsel argued ground 1 and 2 together but I prefer to handle them separately. Ground 1 relates to S. 14 (2) of the Trial on Indictments Act but I will set out the entire Section.

“14. Release on bail

The High Court may at any stage in the proceedings release the accused person on bail, that it to say, on taking from him or her a recognize consisting of a bond, with or without sureties, for such an amount as it reasonable in the circumstances of the case, to appear before the Court on such a date and at such a time as is named in the bond.
Notwithstanding sub section (IK in any case where a person has been released on bail, the Court

amount of the bail should 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.”

The provisions of the Constitution allegedly contravened by the impugned provision of TIA is article 23 sub article 6 which provides as follows

“23. Prevention of personal liberty Sub Article (6) where a person is arrested in respect of a criminal offence

hundred and eighty days before the case is committed to the High Court, that person shall be released on bail on such conditions as the Court considers reasonable.”

Under the above article of the Constitution an accused person is entitled to apply for bail which Court may or may not grant. Under S. 14 of the TIA the Court which exercises its discretion to grant bail also determines the conditions under which bail is granted. Under S. 14 (2) of the TIA the same Court is empowered to revise the amount if it is of the opinion that the amount of bail should be increased. The power to increase bail is and should not be exercised arbitrarily and at the whims of the Judicial Officer revising the terms of bail but must follow a proper procedure and the accused person’s right to be heard must be respected.

The grounds that are presented for variation of the bail terms would have to be weighed against those that mitigate against it so that the judicial discretion to vary the terms is not exercised arbitrarily. I do not see any reason why a Court which has exercised its discretion to grant bail would not exercise its discretion to vary or revise the terms if there are grounds to do so. The suggestion that the Court would do so arbitrarily is to me farfetched because the Courts are governed by the provisions of the Constitution guaranteeing accused persons a right to a fair hearing. Therefore I would dismiss Ground I because the unconstitutionality of Section 14(2) of the Trial on indictments Act was not established and the Constitutional Court rightly so found.

Ground 2 relates to Section 15 of the trial on Indictments Act which provides as follows

“15 Refusal to grant bail

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.

An offence referred to in sub section (I) is

an offence triable only by the High Court
an offence under the Penal Code Act relating to acts of terrorism or cattle rustling
an offence under the Firearms Act punishable by sentence of imprisonment of not less than ten years.
abuse of office contrary to Section 87 of the penal Code Act;
rape, contrary to Section 123 of the Penal Code Act and defilement contrary to Section 129 and 130 of the Penal Code Act.

embezzlement, contrary to Section 286 of the Penal Code.
causing financial loss, contrary to 269 of the Penal Code Act.
Corruption, contrary to section 2 of the prevention of corruption act and bribery of a member of a public body contrary to Section 5 of the prevention of Corrupt Act; and

(j) any other offence in respect of which a Magistrate’s Court has no jurisdiction to grant bail.

In this section, “exceptional circumstances” means any of the following;-

a certificate of no objection signed by the Director of Public Prosecutions; or
the infancy or advanced age of the accused

In considering whether or not the accused is likely to abscond, the Court may take into account the following factors in

whether the accused has a fixed abode within the jurisdiction of the Court or is
whether the accused has sound securities within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail.
whether the accused has on a previous occasion when released on bail failed to comply with the conditions of his or her bail; and
whether there are other charges pending against the accused”

Ground 2 was conceded by the respondent without assigning any reason and I do not understand why. In my view the concession was not well grounded and I am not bound to follow it. The essence of Section 15 of the Trial on Indictments Act is that in exercise of its discretion to grant bail the Court is influenced by a number of factors which according to Section 15(1) may include special circumstances. Section 15 (3) of the TIA describes the special circumstances to include grave illness, a certificate of no objection from the DPP or the infancy or advanced age of the accused person. Proof of these special circumstances may not necessarily guarantee grant of bail to an accused person because the Court still retains the discretion to grant or not grant bail. There are other factors to consider including the likelihood that the accused person may abscond. So I do not see how the requirement for an accused to prove special circumstances infringes on his or her Constitutional right under Article 23 (6) to apply for bail. I would think that an accused person, who, in addition to demonstrating, under S. 15 (4) of the TIA that he is not likely to abscond establishes a special circumstance under Section 15 (I) puts himself or herself at a great advantage because in addition to the consideration Under S. 15 (4) relating to the accused’s guarantee that he or she is not likely to abscond he or she may prove a special circumstance to strengthen his grounds for grant of bail.

So I would also dismiss ground 2 because like the Constitutional Court I find that the impugned provision does not infringe on the accused’s right to apply for bail and neither does it infringe on the Courts discretion to grant bail where it is so warranted.

Ground 3 of the appeal is framed as follows:-

“That the Learned Justices of the Constitutional Court erred in law in holding that Section 75 (2) does not provide for the offences triable by Magistrate Courts but are not bailable by them contravenes Article 23(6) of the Constitutional of the Republic of Uganda.”

The ground of the Appeal stems from the following allegation in the Petition: -

“That Section 75(2) and 76 of the Magistrates Courts Act are inconsistent with Articles 20, 23(1) 26(3), 28(1) and 28(3) of the Constitutional 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 a fair and speedy trial, and right to bail.”

According to the ground of appeal the provisions now in issue are section 75(2) of the Magistrates Courts Act and Article 23 Clause 5 of the Constitution.

Section 75 of the Magistrates Court Act provides as follows:-

“Release on bail

A Magistrates Court before which a person appears or is brought charged with any offence other than the offences specified in sub section (2) may at any stage in the proceedings release the person on bail on talking from him or her a recognizance consisting of bond with a without sureties, for such an amount as is reasonable in the circumstances of the case to appear before the Court, on such a date and such a time as is named in the bond.
The offences excluded from the grant on bail under Section (I) are as follows

An offence only triable by the High Court;
Rape contrary to Section 123 of the Penal Code Act and Aggravated Defilement under Section 129 of the Act;
Embezzlement contrary to Section 268 of the 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;

(k)Any other offence in respect of which a Magistrates

Court has no jurisdiction to grant bail;

A Chief Magistrate may, in any case of offence specified in Sub Section (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 an bail bond be reduced.
the High Court may, in any case where an accused person is appearing before a Magistrate’s Court

where the case is not mentioned in subsection (2), direct that any person to whom bail has been refused by the Magistrates Court be released on bail or that the amount required for any bail bond be reduced, and
Where the case is mentioned in sub-section (2) direct that the accused person be released on bail.

Notwithstanding Sub Section (I) 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 o bail should be increased:-

Issue a warrant for a the arrest of the person released on bail directing that he or she should be brought before it to execute a new bond for any increased amount; and
Commit that person to prison if he or she fails to execute a new bond for an increased amount.”

Article 23 Clause (6) of the Constitution which is allegedly infringed by S.72(2) of the Magistrate Court Act provides as under:-

The person is entitled to apply for to the Court to be released on bail on such conditions as the Court considers reasonable;

The Constitutional Court arrived as the following conclusions after considering the allegation:-

“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 persons 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 does not contradict the accused’s inherit right of innocence. I do not accept the argument that the limitation amounts to suggestion that, the accused is guilty of the offence he is charged with.”

I agree with the above finding. One of the principles of

Constitutional interpretation as expounded in the case of Attorney General Vs Salvatori Abuku (Supreme Court Constitutional Appeal No. 1 of 1998) is that in determining the constitutionality of legislation, its purpose and effect must be taken into consideration. The principle is well captured in the judgment of Oder, JSC in the following passage

“The principle applicable is that in determining the constitutionality of legislation, its purpose and effect must be taken into consideration. Both purpose and effect are relevant in determining constitutionality of either an unconstitutional purpose or unconstitutional effect animated by an object the legislation intends to achieve.

The object is realized through the impact produced by the operation of the legislation. Purpose and effect respectively, in the sense of the legislators object and its ultimate impact, are clearly linked if not indivisible. Intended and actual effects have been looked to for guidance in assessing the legislation object thus its validity. See The Queen Vs Big Mart Ltd (1996) LRC (Supra).

The purpose and effect principle was also applied in the American Supreme Court case of McGowan Vs Maryland 366 US 420, 6 LED 393 (1961). In mv view consideration of the purpose and effect of a legislation in determination of the constitutionality of the legislation is necessary because the object of a legislation is achieved only by it practical application or enforcement. It is only what effect the application produces that the object of a statute can be measured.

The effect is the end result of the object. I find these principles applicable to our determination of the constitutionality of the Witchcraft Act and orders which may be made thereunder, such as the exclusion order made against the respondent.”

(underlining for emphasis).

The preamble to the Magistrates Court Act gives the object of the Act as follow:-

“An Act to the amend and consolidate the law relating to the establishment, constitution and jurisdiction of, and the practice and procedure before, Magistrate Courts and to make provision for other matters connected therewith or incidental thereto.” (Underlining is for emphasis.)

Section 75(2) of the Magistrate Act only defines which Court has jurisdiction to entertain bail applications. The jurisdiction is conferred by parliament in line with one of the objects of the Act as outlined in the preamble. Whatever the reasons Parliament had for making some offences which are triable by the Magistrates only bailable by the High Court, does not infringe on the accused’s right to apply for bail.

The judgment of my sister discusses in detail the application of Article 23 Clause 6 in which is to the effect that while an accused person has a right to apply for bail the discretion to grant bail remains with the Court with jurisdiction to grant it.

The accused person retains the right to apply for bail except that instead of applying for bail before a Magistrate the application is made before the High Court for the specified offences. Applying the principle of purpose and effect in the case of Attorney General Vs Salvatori Abuki (Supra) I am of the view that neither the purpose not the effect of S. 75 (2) infringes on the right to apply for bail and the respondent never demonstrated how it does.

An accused person who is produced before a Magistrate’s Court but wishes to exercise his right to apply for bail would do so at the High Court and by simple process of a production warrant he would be produced before the High Court for hearing of his application.

Article 137 Clause 3 of the constitution under which the petition was made provides as follows

“A person who alleges that-

is consistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate.”

I have already stated that the respondent did not demonstrate as to how the impugned section is inconsistent with or in contravention of the Constitution. For the offences which are triable by the Magistrate neither the requirement to produce an accused person within forty eight hours of his or her arrest nor his or her presumption of innocence guaranteed under the Constitution is compromised. I dismiss ground three of the appeal.

In the result I dismiss all the grounds of appeal with no order as to costs as the matter is of public interest.

Dated at Kampala this 26^th day of October 2018

Mwangusya Eldad

JUSTICE OF THE SUPREME COURT

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