THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA
CORAM: HON. JUSTICE L.E.M. MUKASA-KIKONYOGO, DCJ
HON. JUSTICE G.M. OKELLO, JA
HON. JUSTICE A.E.N. MPAGI-BAHIGEINE, JA
HON. JUSTICE C.N.B. KITUMBA, JA
HON. JUSTICE C.K. BYAMUGISHA, JA
CONSTITUTIONAL PETITION NO 20 OF 2006
FOUNDATION FOR HUMAN
ATTORNEY GENERAL:::::::::::::::::::::::::::::: RESPONDENT
JUDGMENT OF THE HON. DEPUTY CHIEF JUSTICE L.E.M. MUKASA-KIKONYOGO
c) The Uganda Peoples Defence Forces Act No. 7 of 2005 (UPDF) and
d) The Police Act (CAP 303)
(b) That sections 75(2) and 76 of the Magistrate’s Courts Act are inconsistent with Articles 20, 23(1), 23(6), 28(1) and 28(3) of the Constitution of the Republic of Uganda in so far as they exclude certain offences from the grant of bail, thereby infringing on the Constitutional right to liberty, the right to a fair and speedy trial, and the right to bail.
(c) That sections 219, 231 and 248 of the UPDF Act, which subject accused persons to lengthy periods of detention bail, are inconsistent with Articles 20, 23(6), 28(1), and 28(3) of the Constitution of the Republic of Uganda and as such violate the inherent rights and freedoms of the individual which are guaranteed by the said Constitution.
(d) That section 25(2) of the Police Act which permits the police to detain a suspect for seven days without being charged in a court of law is inconsistent with Article 23(4) of the Constitution and is an infringement of the right to liberty and the presumption of innocence.
(b) Sections 75(2) and 76 of the Magistrates Courts Act are inconsistent with Articles 20, 23(6), 28(1) and 28(3) of the Constitution and as such are null and void.
(c) Section 219, 231 and 248 of the UPDF Act are inconsistent with Articles 20, 23(1), 23(6), 28(1) and 28(3) of the Constitution and as such are null and void.
(d) Section 25(2) of the Police Act is inconsistent with Articles 20, 23(4), 23(6) and 28(1) of the Constitution and as such is null and void.
(e) The petitioner prays for costs of this petition.
As the petition was brought in the public interest, the Attorney General was sued as a statutory respondent.
In his answer the Attorney General denied the allegations in the petition and described it as misconceived. It reads, inter alia:-
2. Whether sections 75(2) and 76 of the Magistrate’s Court Act are inconsistent with the Articles 20, 23(1), 23(6), 28(1) and 28(3) of the Constitution.
3. Whether sections 219, 231 and 248 of the Uganda People’s Defence Forces Act are inconsistent with Articles 20, 23 (1), 23(6), 28(1) and 28 (3) of the Constitution.
In his submissions in reply, Mr. Oluka conceded all the impugned provisions of the various Acts except section 14(2) of the Trial on Indictment Act and section 75(2) of the Magistrates Courts Act. The aforesaid were the only contentious issues on which both learned counsel addressed the Court.
I will now proceed to evaluate the evidence adduced by the parties and to consider the submissions of their counsel.
ISSUE NO. 1
On issue No. 1, Mr. Kakuru submitted that sections 14,15(1) 15(2) 15(3) and 16 of the Trial on Indictments Act were inconsistent with Articles 20, 23(6), 28(1) and 28(3) of the Constitution. They are both unconstitutional and unlawful. He asked Court to nullify them. As Mr. Oluka had conceded to the other impugned sections, Mr. Kakuru concentrated on sections 14 of Trial on Indictment Act and 75 of Magistrates Court Act.
“(1) The High Court may at any stage in the proceedings release the accused person on bail, that is to say, on taking from him or her a recognizance consisting of a bond, with or without sureties, for such an amount as is reasonable in the circumstances of the case, to appear before the court on such a date at such a time as is named in the bond”.
“(2) Notwithstanding subsection (1), in any case where a person has been released on bail, the court may, if it is of the opinion that for any reason the amount of the bail be increased-
(b) commit the person to prison if he or she fails to execute a new bond for an increased amount”.
(b) an offence under the Penal Code Act relating to acts of terrorism;
(c) an offence under the Penal Code Act relating to cattle rustling
(d) an offence under the Firearms Act punishable by a sentence of imprisonment of not less than ten years;
(e) abuse of office contrary to section 87 of the Penal Code Act;
(f) rape, contrary to section 123 of the Penal Code Act, and defilement contrary to sections 129 and 130 of the Penal Code Act;
(g) embezzlement, contrary to section 268 of the Penal Code Act;
(h) causing financial loss, contrary to section 269 of the Penal Code Act;
(i) corruption, contrary to section 2 of the Prevention of Corruption Act;
(j) bribery of a member of a public body, contrary to section 5 of the Prevention of Corruption Act; and
(k) any other offence in respect of which a magistrate’s court has no jurisdiction to grant bail.
(4) The High Court may, in any case where an accused person is appearing before a magistrate’s court-
(b) where the case is one mentioned in subsection (2), direct that the accused person be released on bail.
(b) Commit that person to prison if he or she fails to execute a new bond for an increased amount.
(b) an offence under the Penal Code Act relating to acts of terrorism or cattle rustling;
(c) an offence under the Firearms Act punishable by sentence of imprisonment of not less that ten years;
(d) abuse of office contrary to section 87 of the Penal Code Act;
(e) rape, contrary to section 123 of the Penal Code Act and defilement contrary to sections 129 and 130 of the Penal Code Act;
(f) embezzlement, contrary to section 268 of the Penal Code Act.
(g) causing financial loss, contrary to section 269 of the Penal Code Act;
(h) corruption, contrary to section 2 of the prevention of corruption Act;
(i) bribery of a member of a public body, contrary to section 5 of the Prevention of Corruption Act; and
(j) any other offence in respect of which a magistrate’s court has no jurisdiction to grant bail”.
(l) a certificate of no objection signed by the Director of Public Prosecutions; or
(m) the infancy or advanced age of the accused”.
Restriction on period of pretrial remand.
(b) in respect of any other offence, for a continuous period exceeding two hundred and forty days, the judge before whom he or she fist appears after the expiration of the relevant period shall release him or her on bail on his or her own recognizance, notwithstanding that he or she is accused of an offence referred to in section 15(1), unless-
(c) he or she has, prior to the expiration of that period, been committed to the High Court for trial; or
(d) the judge is satisfied that it is for the protection of the public that he or she should not be released for custody”.
Section 76 of Magistrates Courts Act reads as follows:
Restriction on period of pretrial remand.
(b) in respect of any other offence, for a continuous period exceeding two hundred and forty days, the magistrate before whom the accused person first appears after the expiration of the relevant period shall release him or her on bail on his or her own recognizance, notwithstanding that he or she is accused of an offence referred to in section 75(1), unless-
(c) he or she has, prior to the expiration of that period, been committed to the High Court for trial; or
(d) the magistrate is satisfied that it is expedient for the protection of the public that he or she should not be released from custody.
(2) Subsection (1) shall not apply to a person who is arrested in one police area and is not to be questioned within the area in which he or she was arrested until he or she is transferred to the area where the offence was committed within seven days”.
Sections 219 of Uganda Peoples Defence Forces Act reads as follows:
(b) may, pending the final determination of the case, release any convicted person on bail; except that-
(i) bail shall not be granted to a person sentenced to death or to imprisonment exceeding five years; and
(iii) If the convicted person is ultimately sentenced to imprisonment or detention, the time he or she has spent on bail shall be excluded in computing the period for which he or she is sentenced.
(c) may, if it thinks fit, call for and receive from the summary trial authority or Unit Displinary Committee before which the case was heard, a report on any matter connected with the case;
(d) shall not make any order to the prejudice of an accused person unless he or she has had an opportunity to be heard in his or her own defence”.
With regard to section 75 of MCA (supra) Mr. Kakuru’s complaint was that it is wrong for the Magistrates Courts Act to provide offences which are triable by the Magistrates Court but not bailable by them. This provision, counsel argued, also contravenes Article 23 (6) of the Constitution (supra) in that it infringes and limits the accused’s right to apply for bail. Mr. Kakuru did not see the rationale behind it. If a court has jurisdiction to try an offence it should have jurisdiction to grant bail.
In reply, Mr. Oluka did not agree with the submissions of Mr. Kakuru on the interpretation of section 14(2) of Trial Indictment Act. He submitted that the High Court is seized with powers to set conditions or order cancellation of bail. It has discretion to deny bail to an accused. Setting conditions for bail or cancellations does not violate the right to a fair trial and presumption of innocence envisaged under Article 28(3) of the Constitution. To him, bail, can be cancelled at any point in time.
On section 75 of Magistrate Court Act, Mr. Oluka conceded that, in appropriate circumstances, the Constitution should be given wide interpretation. However, it should not be interpreted to conflict with other parts of Constitution. Counsel pointed out that both the High Court and magistrates’ courts are given powers under section 75 to consider grant of bail. He argued that, according to our jurisdiction each court is given specific jurisdiction; for example, capital offences are triable only by the High Court.
Further, counsel argued that there is no cause for alarm because there are guidelines for granting bail at different stages of the trial. He referred this Court to Article 23 of the Constitution (supra) and prayed that the provisions of section 75 Magistrate Court Act and section 14(2) of Trial on Indictment Act should be upheld as they are within the confines of the law.
I carefully listened and I have considered the addresses of both learned counsel on the constitutionality of section 14 (2) Trial on Indictment Act and section 75 of Magistrates Court Act and noted all the arguments, they advanced. I have also had a careful perusal of the affidavit evidence and legal arguments advanced during the scheduling conference as well as the relevant provisions of the law and authorities cited by the parties.
In matters involving interpretation of the Constitution or determination of the Constitutionality of Acts of Parliament courts are guided by well settled principles. One of the cardinal principles in the interpretation of constitutional provisions and Acts of Parliament is that the entire Constitution must be read as an integrated whole and no one particular provision should destroy the other but sustain the other. See TINYEFUZA VS ATTORNEY GENERAL CONSTITUTIONAL PETITION NO.1 OF 1996.
Another important principle is that all provisions concerning an issue should be considered together to give effect to the purpose of the instrument see South Dakola vs North Carolina 192, US 268, 1940 LED 448.
Thirdly, the purpose and effect principle where the court considers the purpose and effect of an Act of Parliament to determine its constitutionality. See THE QUEEN VS BIG DRUG MARK LTD (1996) LRC (CONST.) 332 ATTORNEY GENERAL VS SALVALON ABUKI CONSTITUTIONAL APPEAL NO. 1 OF 1998.
Following the Constitution and in particular that part which protects and entrenches fundamental rights and freedoms, must be given a generous and purposive interpretation. ATTORNEY GENERAL VS MODERN JOBE (1984) LRC 689 UNITY DOW VS ATTORNEY GENERAL OF BOTSWANA 1992 (LRC 662).
With the above mentioned principles and others not mentioned in mind I will now proceed to consider not only sections 14(2) of the Trial Indictment Act and section 75 of Magistrate Courts Act but all the issues agreed upon by the parties at the scheduling conferencing.
In my view, the petition before court is mainly challenging the constitutionality and legality of the restrictions and limitations imposed on grant of bail by the impugned provisions of the above mentioned Acts of Parliament, namely, TIA, MCA, UPDF and Police Act. The question for this Court to determine is whether they are inconsistent with Articles, 20, 23(1), 28(1), 23(3) and 23(6) of the Constitution. The petitioner sees the right to apply for bail as a fundamental and inherent right not given by the State. To the petitioner bail is a question of liberty. The petition is, hence, seeking nullification of those provisions to the extent of inconsistency.
As conceded by the Principal State Attorney, Oluka some of the above mentioned impugned provisions are unconstitutional and inconsistent with the Constitution in some aspects as we shall see later but others are not. From the outset I would like to point out that this Court has pronounced itself on several aspects of the interpretation and application of the relevant laws governing bail, mainly, Article 26(6) of the Constitution but it seems there is still a lot to be done. It is, for example, the contention of Mr. Kakuru that the court has no discretion to deny an accused person bail. As far as he is concerned it is a fundamental human right inherent in the individual and is automatic. It should, therefore, not be based on the impugned statutory provisions.
In the case of TUMUSHABE VS ATTORNEY GENERAL CONSTITUTIONAL PETITION NO. 6 OF 2004, this Court ruled that:-
A careful perusal of the Court’s ruling in the aforesaid reference reveals that, the Court gave the question of discretion under Article 23(6) (supra) a thorough and exhaustive interpretation. In my view it left no stone unturned. I will reproduce some of the relevant portions of the ruling where I consider it appropriate.
Applying some of the above mentioned principles on constitutional interpretation this Court held as follows:-
However, in both article 23(6)(b) and (c) the court has discretion to determine the conditions of bail.
In my view, the aforesaid Court’s ruling should have put the question of discretion to rest. I see no reason for resurrecting it. After such an exhaustive consideration of the subject there is nothing to persuade me to find that bail is automatic. Relying on the purposive and effect principle (supra) I reiterate this Court’s holding that:-
Another scenario of which human rights lawyers in Uganda, including Mr. Kakuru have been critical of is under Article 23(6) (c) of the Constitution. This is where an accused person charged with offences triable only by the High Court but has not spent the statutory period of 180 days on remand is seeking release on bail. In this case, the court still, has discretion to grant or not to grant bail if the accused fails to show exceptional circumstances as provided by the Trial on Indictments (Amendments) Act No. 9 of 1998 which read as follows:
Mr. Kakuru fears on the exercise of the court’s discretion is unfounded because even section 15(1) of the Trial on Indictment Act left the court’s discretion intact. The courts have clear guidelines as to how to exercise the discretion to grant or not to grant bail and the basis on which to be exercised.
On cancellation of bail under section 14(2) of the Trial on Indictment Act, complaint of Mr. Kakuru is that the accused will not be condemned unheard as he suggested. When he or she is produced before court, he or she will be given opportunity to be heard. He or she would be required to show cause why the order sought for should not be granted. It is not correct, as suggested by Mr. Kakuru, that all the impugned provisions mentioned in this petition have the effect of negating the right to apply for release on bail as prescribed by Article 23 (6) (a) of the Constitution. Clearly, the Court has a discretion to grant bail and impose reasonable conditions without contravening the Constitution.
With regard to Mr. Kakuru’s complaint on about other restrictions on courts, in particular to require the accused to show that he will not abscond and proof of exceptional circumstances, in my view, the said requirements are justified. Besides they are not mandatory. Both High Court and subordinate courts are still free to exercise their discretion judicially and to impose reasonable conditions on the applicant. As was observed by this Court in Constitutional Reference No. 20 (supra) Page 12:-
The objective and effect of bail are well settled. The main reason for granting bail to any accused person is to ensure that he appears to stand trial without the necessity of being detained in custody in the meantime. We accept Mr. Kakuru’s submission that under Article 28(3) of the Constitution, an accused person charged with a criminal offence is presumed innocent until proved guilty or pleads guilty. If an accused person is remanded in custody but subsequently acquitted may have suffered gross injustice. Be that as it may, bail is not automatic. Its effect is merely to release the accused from physical custody while he remains under the jurisdiction of the law and is bound to appear at the appointed place and time to answer the charge or charges against him.
The provisions of section 14 (2) of the TIA and 75 MCA requiring the court to set conditions and the guidelines stated therein are hence justified. It is, therefore, relevant, unless the offence is minor to take into account, certain matters, like, the gravity of offence, nature of accusation, antecedents of the accused person, and whether he has a fixed abode within the court’s jurisdiction.
The aforesaid requirements do not in anyway infringe on the accused’s rights under Articles 20, 23 and 28. Rights, be the fundamental rights or not, must be enjoyed within the confines of the law. Violation of the accused’s rights does not occur simply because the accused is required to assure court that he will appear to answer the charges. All that is required of the court is to impose reasonable conditions, acceptable and demonstrably justifiable in a free and democratic society as provided under Article 43 (2) of the Constitution.
On this issue I find that sections 14(2), 15(1), 15(2) and 15(3) of TIA not consistent with Articles, 20, 23(1), 23(6), 28(1) of the Constitution.
However, as it was conceded by Mr. Oluka, section 16 of Trial Indictment Act is null and void to the extent of its inconsistency with Article 23(6) (supra). In the premises the answer to issue No.1 is partly in the negative and partly in affirmative.
ISSUE NO. 2
With regard to section 75 (2) of the MCA, it is not correct to say, on the evidence before court, that it contravenes the provisions of Article 23(6). The accused’s right to bail is not absolute. It has to be enjoyed within the confines of the law. There has to be a constitutional balance of everybody’s rights. Denial to grant bail by section 75 (2) does not contradict the accused’s inherent right of innocence. I do not accept the argument that the limitation amounts to suggestion that, the accused is guilty of the offence he is charged with.
On section 76, it is to be noted that it predates the 1995 Constitution. In accordance with Article 274 of the Constitution, section 76 may, be construed with modification and adoption to bring it into conformity with the Constitution. It would, therefore, be null and void to the extent it contravenes the Constitution.
The answer to issue No.2 is also partly in the affirmative and partly negative.
ISSUE NO. 4
For convenience I will next consider section 25(2) of the Police Act. I accept that it contravenes Article 23(4) of the Constitution. It provides for a longer period before an accused is produced in court than the Constitution sets under Article 23(4). It is, hence, null and void to that extent.
3. That 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 of the Republic of Uganda.
4. That section 25 (2) of the Police Act is inconsistent with Articles 20, 23(4), 23(6) and 28(1) of the Constitution and as such is null and void to the extent of inconsistency.
Since all the justices on the Coram have agreed with the above holdings and proposed declarations this petition succeeds in part with the above mentioned declarations. Since the petition was brought in public interest there will be no order as to costs.
Dated at Kampala this …26th .…day of …March….2008
HON. DEPUTY CHIEF JUSTICE
JUDGMENT OF G.M.OKELLO, JA
I have read in draft the judgment of my learned sister Justice Mukasa Kikonyogo, DCJ and I entirely agree. I have nothing useful to add.
Dated at Kampala this …26th ..day of …March….. 2008
JUSTICE OF APPEAL
JUDGEMENT OF HON. JUSTICE A.E.N.MPAGI-BAHIGEINE, JA
I fully concur and have nothing more to add.
Dated at Kampala this …26th …. day of …March.. 2008
Justice of Appeal
JUDGMENT OF C.N.B.KITUMBA, JA
I have had the benefit of reading in draft the judgment of my Lord Mukasa-Kikonyogo, DCJ.
I entirely agree with it and have nothing more useful to add.
Dated this …26th ..day of ………March…….2008
JUSTICE OF APPEAL
JUDGMENT OF BYAMUGISHA JA
I had the benefit of reading in draft from the lead judgment that was prepared by the learned Deputy Chief Justice.
I agree with it.
Dated at Kampala this …26th .day of …March….2008
Justice of Appeal