RULING OF THE COURT by naq52275

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									                       THE REPUBLIC OF UGANDA
     IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA


     CORAM: HON      JUSTICE    L.E.M MUKASA KIKONYOGO, DCJ
 5          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

10           CONSTITUTIONAL REFERENCE NO.20 OF 2005.
     UGANDA (DPP):::::::::::::::::::::::::::::: PETITIONERS
                                  VERSUS
     COL (RTD) DR. KIIZA BESIGYE:::::::::::::::::::::::: RESPONDENT


15   RULING OF THE COURT


     This matter was placed before this court by way of Reference
     under article 137(5) of the Constitution which states that:
     (5)   Where any question as to the interpretation of this
20         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
25         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
30   that the following issue be resolved by this Court, namely:


                                      1
     “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
 5   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
10   respondent, Col (RTD) Dr. Kiiza Besigye.


     The Background.

     The respondent, and 22 others who had been arrested before him
     around March 2003, were jointly charged with treason, contrary
15   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.
20   The DPP opposed the bail application on two grounds, namely
     that:
     (1)     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
25           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
     (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
 5         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.


10   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
15   way of example, the learned Asst DPP cited Layan Yahaya v
     Uganda, High Court miscellaneous Criminal Application No.
     96/2005 where Lugayizi. J. held:
           “… in other words, since under article 28(3) (a) of
           the Constitution a suspect in a criminal case is
20         presumed innocent until he or she is proved
           guilty or until he or she pleads guilty it makes
           sense to say that when such suspect applies for
           bail a court of law would act unconstitutionally if
           it refused to grant him or her bail. A refusal to
25         grant bail would contradict the suspect’s inherent
           right of innocence and indirectly suggest that the
           law presumes the suspect guilty of the offence he
           or she is charged with unless he or she proves


                                      3
          otherwise.    All in all, this court remains of the
          settled view that bail is a Constitutional right
          that flows from the presumption of innocence
          under Article 28 (3)(a) of the Constitution.”
 5   Mr. Wamasebu submitted that the above interpretation was
     clearly erroneous and illustrated the confused situation in the
     High Court.


     The Assistant DPP pointed out that the use of the word “may” in
10   article 23(6)(a) connotes discretion on the part of the court
     whereas “shall” as used in 23(6)(b) and (c) takes away the court‟s
     discretion on the applicant showing he has been in custody for
     the prescribed time limit.    He contended that it was the literal
     rule of interpretation that had to be applied to these matters.
15   The word “may” simply means that the court has discretion to be
     exercised in the matter before him. To hold otherwise would be
     absurd. It would lead to an influx of thugs and fugitives from
     justice   congesting   our   surroundings   and   dismantling   our
     security. He prayed court to hold that the article 23(6)(a) gives
20   the court discretion whether to grant or not to grant bail.


     Ms. Robina Rwakoojo for the Attorney General associated herself
     with the submission of the Asst DPP and remarked that she had
     nothing useful to add.
25

     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,


                                       4
     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.


 5   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
10   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
15   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.


20   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
25   cannot be released once he has been committed to the High
     Court, regardless of the custody time limit.




                                        5
     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
 5   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
10   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
15   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 –
20              Article   23(6)   as   amended    by      the   Constitution
                (Amendment) Act 11/2005 reads:
          (6)   where a person is arrested in respect of a criminal
                offence –
          (a)   the person is entitled to apply to the court to be
25              released on bail and the court may grant that
                person bail on such conditions as the court
                considers reasonable;



                                       6
             (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
 5                 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
10                 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
15   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.”
20

     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
25   into purview and read or construed together as one whole so as
     to bring out the greatest effect of the document.




                                        7
     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.


 5   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.
10

     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
15   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
20   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
25   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


                                      8
     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.


 5   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
10   such a person.


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


15   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
20   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
25   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




                                         9
           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
 5   (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
10   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.
15

     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
20   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
25   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.


                                      10
     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
 5   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
10   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
15   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
20   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
25   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




                                       11
     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
 5   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
10   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.
15

     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
20   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.


25   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.


                                       12
     Dated at Kampala this ……22nd…..day of …September… 2006.


 5




                    L.E.M MUKASA KIKONYOGO
                     DEPUTY CHIEF JUSTICE
10



                           G.M OKELLO
                       JUSTICE OF APPEAL


15

                     A.E.N. MPAGI-BAHIGEINE
                       JUSTICE OF APPEAL




20                        C.N.B KITUMBA
                       JUSTICE OF APPEAL




                         C.K BYAMUGISHA
25                     JUSTICE OF APPEAL




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