Bail pending appeal in Uganda

• Citation: (2021) 34 SACJ 307
• Author: Mujuzi, J.D.
• DOI: https://doi.org/10.47348/SACJ/v34/i2a7
• Date: 17 November 2021
• Published date: 17 November 2021
• Pages: 307-338

Bail pending appeal in Uganda

JAMIL DDAMULIRA MUJUZI*

ABSTRACT

Article 23(6) of the Const itution of Uganda (1995) provides that an arrested

person is ‘entitled’ to apply to court for bail. However, it is silent on the

issue of bail pending appea l. Bail pending appeal is pr ovided for in the

Magistrates Cour ts Act, the Judicature Act and the Crim inal Procedure Code

Act. Although the Supreme Cou rt, the highest cour t in Uganda, provided

criteria for granti ng bail pending appeal, some h igh court and Cour t of

Appeal judges, who are bound by the deci sions of the Supreme Court, have

ignored these criteria . There are conict ing high court, Cou rt of Appeal

and Supreme Court judgment s on the questions of whether ar t 23(6) is

applicable to bail pending appeal and whet her the right to be presumed

innocent is applicable to a person who is applying for bai l pending appeal.

There are notable controversies in t he rich jurisprudence of t he Supreme

Court on bail pend ing appeal. In October 2020, one of t he justices of the

Supreme Court held that the Supreme Cou rt does not have the juri sdiction

to grant bail pendi ng appeal and that Rule 6(2)(a), which empowers

the Supreme Court to gra nt bail pending appeal, is u nconstitutional.

In November 2020, another Supreme Cour t justice granted an applicant bail

pending appeal without even referr ing to her colleague’s decision which

held that the court did not have jur isdiction to grant b ail pending appeal.

This art icle examines the jur isprudence developed by the court s of Uganda

on the subject. The dis cussion focuses on the following iss ues: courts with

jurisdiction to g rant bail pending appea l; the right to bail pendi ng appeal;

the presumption of innoce nce and bail pending appeal; and cond itions for

granting bai l pending appeal.

1 Introduction

Article 23 of the Constit ution of Uganda (1995) provides for the right

to personal libert y generally and art 23(6) deals with the is sue of bail

in the following terms:

(a) the person [arrested in respect of a criminal offence] 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

* LLB (Makerere) LLM (UP) LL M (UFS) LLD (UWC), Professor of L aw, Faculty of Law,

University of the Wester n Cape.

https://doi.org/10.47348/SACJ/v34/i2a7

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(2021) 34 SACJ 307

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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.

The aforementioned provision addresses bail pending tr ial but it is

silent on bail pending appeal. There are con icting high court, Cour t

of Appeal and Supreme Court judgments on the questions of whet her

art 23(6) is applicable to bail pending appeal and whether the right

to be presumed innocent is applicable to a person who applies for bail

while their appeal is under consideration. Since 20 03, the Supreme

Court has developed rich jurispr udence on bail pending appeal. On the

basis of this jurispr udence, the Supreme Court has allowed or dismissed

applications for bail pending appeal. In other words, the jurisdic tion of

the Supreme Court on this issue ha s never been questioned. However,

in October 2020, one of the justices of the Supreme Cour t held that

the Supreme Court does not have the jurisdict ion to grant bail pending

appeal and that Rule 6(2)(a), which empowers the Supreme Court to

grant bail pending appeal, is unconst itutional. In November 2020,

another Supreme Court justice granted an applicant ba il pending

appeal without referring to her colleague’s decision which held that

the Court did not have jurisdict ion to grant bail pending appeal. Thi s

article highlights the ju risprudence these court s have developed on

bail pending appeal. It is argued, inter al ia, that the magistr ates’ court

does not have jurisdiction to grant bai l pending appeal – unless when

sitting as an appellate court; the Supreme Cour t has jurisdict ion to

grant bail pending appeal; the presu mption of innocence does not

apply to a person applying for bail pending appeal; and a person

applying for bail pending appeal does not have to prove compelling

circumstances to be gr anted bail. It is beyond the scope of this paper

to discuss the issue of bail pend ing appeal before militar y courts.1

2 Courts with jurisdiction to grant bail pending appeal

2.1  Bail pending appeal before magistrates’ courts

The Magistrates’ Cour ts Act2 is silent on the circu mstances in which

a magistrates’ court, wh ich has convicted a person, can release him /

her on bail pending appeal against its de cision. Section 205 of the

Magistrates’ Court s Act provides that ‘[a]n appellant may, at any time

before the determination of his or her appeal, apply for bail to the

1 In Foundation for Human Rights Initiatives v Attorne y General (Const itutional

Petition No 20 of 200 6) [2008] UGCC 1, the C onstitutional Court found th at s 231 of

the Uganda Peoples Defence Forces Act No 7 of 2 005 which applied to bail pending

appeal was unconstit utional.

2 Chapter 16 of the Laws of Uganda.

308 SACJ . (2021) 2

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appellant court, and the appellant court m ay grant the bail’.

Section 205 should be read together with s204(1) which provides that:

Subject to any other written law and except as provided in this section, an

appeal shall lie— (a) to the High Court, by any person convicted on a trial by

a court presided over by a chief magistrate or a magistrate grade I; (b) to a

court presided over by a chief magistrate, by any person convicted on a trial

by a magistrate grade II.

A combined reading of ss 204 and 205 shows that, stric tly speaking,

only the appellant court may grant ba il pending appeal. Thus, in the

case of a person convicted by a chief magistrate, it is t he high court with

jurisdiction to grant h im/her bail pe nding appeal. And in the case of a

court presided over by a magistrate Grade II, it is the chief mag istrate

with the jurisdict ion to grant bail pending appeal. Th is means that a

magistrates’ court which h as convicted a person of an offence does not

have jurisdiction to grant that per son bail pending appeal. In the past,

the Magistrates’ Cour ts Act3 used to provide for circumstances in which

a person could apply for bail pending appeal before a magistrate who

had convicted him or her of an offence. Section 217 of the Magistrates’

Courts Act used to provide that:

(1) The magistrate’s Court which convicted an appellant may, at any time

before the determination of his appeal, admit the appellant to bail and the

provisions of part VIII of this Act shall then apply. (2) Where bail is refused

to an appellant under the provisions of subsection (1) of this section, he may

apply for bail to the appellate court.

Indeed, the high court in Chemuswa v Attorney General,4 relied on

that section to hold that a magistrate had the power to release an

offender on bail pending appeal. However, when the Magistrates’

Courts Act was subsequently amended th at jurisdiction was removed

from the Act.5

2.2 Bail pending appeal before the high court

Article 139 of the Constitution provides for the jur isdiction of the high

court and it is to the effect that:

3 Magistrates’ Court s Act of 1970.

4 Chemuswa v Attorney General [1973] HCB 193–194. See also Namujju v Uganda

[2017] UGHCCRD 110 at 6. However, if this case was decided aft er the repeal of

s217, the court’s view on bail pending appeal ca nnot be correct.

5 Currently, s205, discussed above, governs ba il pending appeal. It is not clear when

the Magistrat es’ Courts Act was amended to repea l s217. The two publicly available

amendment Acts wh ich specical ly amend the Magist rates’ Court s Act do not refer

to s217 at all. See Magistrat es’ Courts (A mendment) Act, 1990 (No 6); Magist rates’

Courts (Ame ndment) Act, 1990 (No 6 of 2007).

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