Uganda: Constitutional Court

CORAM:   HON JUSTICE L.E.M MUKASA KIKONYOGO, DCJ
                  HON JUSTICE G.M. OKELLO, JA

UGANDA (DPP):::::::::::::::::::::::::::::: PETITIONERS

Where any question as to the interpretation of this Constitution arises in any proceedings in a court of law other than a Field Court Martial, the Court -
(a)     

may, if it is of the opinion that the question involves a substantial question of law; and
(b)     

shall, if any party to the proceedings requests it to do so, refer the question to the Constitutional Court for decision in accordance with clause (1) of this article.

It was referred to this Court by the Hon. J Ogoola, Principal Judge, at the request of Mr. Michael Wamasebu, the Asst DPP that the following issue be resolved by this Court, namely:
“Whether under article 23(6) of the Constitution, courts have the discretion to grant or not to grant bail.”

At the hearing Mr. Michael Wamasebu, the Asst DPP appeared for the DPP, the petitioner, while Ms. Robina Rwakoojo, Principal State Attorney with Ms. Sophie Masagazi, State Attorney, represented the Attorney General.

Mr. David F.K Mpanga and Mr. Kiyemba-Mutale were for the respondent, Col (RTD) Dr. Kiiza Besigye.

The respondent, and 22 others who had been arrested before him around March 2003, were jointly charged with treason, contrary to section 23(1) (c) of the Penal Code Act. The respondent who was also charged with rape contrary to section 123 of the Penal Code Act applied for bail to the High Court, vide Miscellaneous Application No. 228/05, under article 23(6)(a) of the Constitution.

the court had discretion to grant or not to grant the bail application, pointing out that, however, in the case of the applicant there were no exceptional circumstances as stipulated under section 15 of the Trial on Indictments Act (Cap23), which would warrant the exercise of the court’s discretion in the applicant’s favour.

(2)     

Secondly, the High Court had given conflicting interpretation of article 23(6)(a) of the Constitution thus leading to serious confusion in the lower courts which are bound by the High court decisions.

The learned Principal Judge, however, on 24-11-05, granted the applicant “interim bail” and referred the question of law aforesaid to this court, under article 137(5), for determination.

The Asst DPP’s Submissions on the Reference.

Mr. Wamasebu pointed out that some Judges were of the view that under article 23(6), they had discretion to grant or to refuse to grant bail while others held that bail was an automatic right. Their Lordships were so divided on this issue, he asserted. By way of example, the learned Asst DPP cited Layan Yahaya v Uganda, High Court miscellaneous Criminal Application No. 96/2005 where Lugayizi. J. held:

Mr. David F.K. Mpanga’s Submission.

The respondent’s answer to the Reference was “yes” in respect of article 23(6)(a). The court has discretion, he maintained. This, however, did not apply to article 23(6)(b) and (c) where the word “shall” is used, he argued. Here the court has no option but to grant bail.

Elaborating on article 23(6)(a), Mr. Mpanga pointed out that the article must be read in conjunction with the Constitution as a whole. It has to be married with article 28(3) enshrining the applicant’s right to the presumption of innocence together with article 23(1) protecting his/her right to personal liberty. The objects of granting bail were threefold, namely to ensure that the accused attends court to have the matter resolved by the court, to ensure that he does not interfere with witnesses and to prevent the accused from re-offending. He stated that there were no circumstances where the court has no discretion under article 23(6)(a). Everybody is entitled to apply for bail. When the application is made, it is for the prosecution to make out objections to bail being granted and for the accused to reply and discharge the evidential burden.

The Asst DPP’s Reply.

Mr. Wamasebu agreed that under article 23(6)(b) the court has no discretion once the applicant has shown that he has been in custody for the statutory period before trial.
However, his view on article 23(6)(c) was that the applicant cannot be released once he has been committed to the High Court, regardless of the custody time limit.

Mr. Mpanga’s contention on 23(6)(c).

Mr. Mpanga, who had ignored this point, countered that after committal, bail is not automatic but if it takes long for the trial to take off, the applicant would be entitled to bail.
Ms. Rwakoojo herself sided with the Asst DPP on this point.

It is thus clear that both counsel agreed on the interpretation of article 23(6)(a) and (b). We agree with this position. Article 23(6)(a) gives the accused a right to apply for bail and the court has a discretion to grant or to refuse to grant bail. It is thus clear that both counsel agreed on the interpretation of article 23(6)(a) and (b). We agree with this position. Article 23(6)(a) gives the accused a right to apply for bail and the court has a discretion to grant or to refuse to grant bail.

Provisions of Relevant Articles.

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

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;
(b)     

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

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

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

“(3)      Every person who is charged with a criminal offence shall –
(a)     

be presumed to be innocent until proved guilty or until that person has pleaded guilty.”

The Literal Rule of Interpretation Applicable.
It is a cardinal principle of constitutional interpretation that when interpreting an article or clause thereof, all articles bearing upon that subject matter under discussion have to be brought into purview and read or construed together as one whole so as to bring out the greatest effect of the document.

Applying the literal rule of interpretation therefore the context of article 23(6)(a) confers discretion upon the court whether to grant or not to grant bail. Bail is not an automatic right.

We observe that the word ‘may’ is not defined in the Constitution but is exhaustively explained in Black’s Law Dictionary, Sixth Edition where it is stated to imply permissive, optional or discretional and not mandatory. The word ‘may’ is the opposite of ‘shall’ which is generally imperative or mandatory.

Under article 23(6)(a), the accused is entitled to apply for bail. The word “entitled” creates a ‘right’ to apply for bail and not a right to be granted bail. The word may create discretion for the court to grant or not to grant bail. The context in which the word ‘may’ is used does not suggest otherwise.

We turn to article 23(6) (b) and (c). We accept the general position as stated by both counsel that the court has no discretion to grant or not to grant bail after the accused has shown that he/she has been on remand in custody for 60 days before trial or 180 days before committal to the High Court.

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

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

In both article23 (6) (b) and (c) the court has discretion to determine the conditions of bail.

However, under 23(6) (c) it is vital to highlight the other common situation which might be confused with the one dealt with already. Strangely enough we were not availed the benefit of any submissions from either counsel. This is the situation where the accused is charged with an offence only triable by the High Court but has not spent the statutory period of 180 days in custody before committal. In this case, the court may refuse to grant bail where the accused fails to show to the satisfaction of the court exceptional circumstances under section 15(3) of the Trial On Indictments (Amendment) Act No.9 of 1998 (Cap 23). These circumstances are regulatory. They are:

“ (a)     grave illness certified by a medical officer of the prison or other institution or place where the accused is detained as being incapable of adequate medical treatment while the accused is in custody;
(b)     

a certificate of no objection signed by the Director of Public Prosecution or
(c)     

the infancy or advanced age of the accused.”

It is noteworthy that this is a 1998 Act which came into force, well after the 1995 Constitution. Its sole purpose was to operationalise article 23(6) (c) for accused persons desirous of applying for release on bail before the expiry of the constitutional time limit of 180 days. It does not also fall under the general situation covered under article 23(6) (a) where a subordinate court might be tempted to or armtwisted into entertaining such an application when the accused appears for further remands.

Before we take leave of this, we were made to understand by Mr. Wamasebu that the order of “interim bail” made by the Hon Principal Judge was unknown to our law and we were asked to comment on it. We would say that his Lordship had powers to do so and gave his reasons for doing so. There is nothing inherently wrong with the order.

So much for the Reference
We, however, feel constrained for the sake of completeness of the exercise, to offer some general observations on the ‘reasonable conditions’ the court should keep in mind when deciding to grant bail or to refuse to grant bail. While considering bail the court would need to balance the constitutional rights of the applicant. The needs of society to be protected from lawlessness and the considerations which flow from people being remanded in prison custody which adversely affects their welfare and that of their families and not least the effect on prison remand conditions if large numbers of unconvicted people are remanded in custody. In this respect various factors have to be born in mind such as the risk of absconding and interference with the course of justice. Where there is a substantial likelihood of the applicant failing to surrender for turn up for trial, bail may only be granted for less serious offences. The court must weigh the gravity of the offence and all the other factors of the case against the likelihood of the applicant absconding. Where facts come to light and it appears that there is substantial likelihood of the applicant offending while on bail, it would be inadvisable to grant bail to such a person.

Similarly where there is substantial likelihood of interference with witnesses, this is normally relevant when the alleged offence is comparatively serious and there is some other indication of violence or threatening behaviour by the accused, this would be a very strong ground for refusing bail. Bail could also be refused according to the status of the offence and the sage in the proceedings. The extent to which evidence pointing to proof of guilt or innocence of the applicant would seem to be one of degree in the circumstances of a particular case. There is no rule that such evidence cannot be placed before curt. An investigating officer giving evidence of arrest often be to connect the applicant sufficiently with the offence, as mush as to claim that he or she may fail to surrender for trial.
While the seriousness of the offence and the possible penalty which could be meted out are considerations to be taken into account in deciding whether or not to grant bail, applicants must be presumed innocent until proved guilty or until that person has pleaded guilty. The court has to be satisfied that the applicant will appear for trial and would not abscond. The applicant should not be deprived of his/her freedom unreasonably and bail should not be refused merely as a punishment as this would conflict with the presumption of innocence. The court must consider and give the applicant the full benefit of his/her constitutional rights and freedoms by exercising its discretion judicially.

Bail should not be refused mechanically simply because the state wants such orders. The refusal to grant bail should not be based on mere allegations. The grounds must be substantiated. Remanding a person in custody is a judicial act and as such the court should summon its judicial mind to bear on the matter before depriving the applicant of their liberty. What we have outlined above is by no means exhaustive. The court should consider all other relevant circumstances.

All in all both the High Court and the subordinate courts have wide discretionary powers to set bail conditions which they deem reasonable, though we would caution this must be done judicially.


Dated at Kampala this ……22nd…..day of …September… 2006.