Right to bail pending appeal shouldn’t be selective – judge

Saturday October 31 2020

Justice Esther Kitimbo Kisaakye. Photo | Rachel Mabala

By Derrick Kiyonga

I n a ruling that has provoked debate in Uganda’s criminal justice system, Justice Esther Kitimbo Kisaakye, sitting as a single judge of the highest court in the land, ruled: 

“The reasoning that a convicted  person should be allowed to first exhaust all his rights of appeal before he can start serving his sentence in our legal system is flawed.”   
If this were the case, Justice Kisaakye ruled, then the right to bail pending appeal should extend to all convicts not only in the Supreme Court, but also in the Court of Appeal and the High Court. 

“It should not selectively apply to only who can afford a lawyer “the haves” or those benefitting from the loot or the proceeds of their theft like the applicant…,” Kisaakye explained. 

The ruling stemmed from an application for bail pending appeal filed by Joshua Magombe, a former employee of telecom giant MTN, who was convicted and sentenced to nine years in prison by the Anti-Corruption Court.

Court had found Magombe guilty of various graft-related offences, which included theft, electronic fraud, unauthorised access contrary to the Computer Misuse Act, 2011, and conspiracy to commit a felony. 
 Once Magombe appealed, the Court of Appeal upheld the convictions of theft and electronic fraud, but overturned the other two convictions: Unauthorised access and conspiracy to commit a felony.  

Partly dissatisfied with the Court of Appeal ruling, Magombe, who was on bail right from the High Court through the Court of Appeal proceedings,  filed a notice of appeal on September 11, 2019, followed up with  an application seeking for bail pending appeal on November 18, 2019, at the Supreme Court. 


Mr Evans Ochieng, Magombe’s lawyer, was not short of authorities to cite, which he thought would persuade Justice Kisaakye to free his client. 

The most recent case then Mr Ocheing cited was the 2018 case in which the Supreme Court granted former National Social Security Fund (NSSF) managing director David Chandi Jamwa bail after the Court of Appeal had upheld the 12-year sentence the Anti- Corruption Court had handed to him in 2011, having found him guilty of causing the Fund a financial loss of Shs2.7b. 

Even at the Court of Appeal, Jamwa had spent most of his time on bail.  He wasn’t the only beneficiary of this practice because a close look at court records shows that people convicted by the Anti-Corruption Court had made it a habit to secure bail before their appeals are heard by the Court of Appeal.

 In 2014, former permanent secretary in the Local Government ministry, John Muhanguzi Kashaka, who had been issued a 10- year jail term by Justice Catherine Bamugemereire, who was then at the Anti-Corruption Court, for his role in the ruined purchase of 70,000 bicycles meant for Local Council One and parish chairpersons ahead of the 2011 General Elections, was granted bail pending appeal.

  In 2019, Apolo Senkeeto,  who had been sentenced to 10 years in jail by the head of the Anti- Corruption Court  Justice Lawrence Gidudu for being  the master mind in the fleecing of  Uganda Revenue Authority  Shs24.7 billion on the Mukono- Katosi- Nyenga road construction fiasco, also gained unfettered freedoms when the Court of Appeal’s Justice Cheborion Barishaki granted him bail on grounds that he had a pending appeal.  
 But for Magombe’s case, Ochieng heavily relied on the famous case of Arvind Patel vs Uganda in which the Justice Arthur Oder, sitting as a single judge of the Supreme Court, granted Patel bail pending appeal and consequently, the judge, who has since passed on set conditions which must be fulfilled for one to be given bail before his or her appeal is heard.  

Mr Ocheing pleaded with Justice Kisaakye to follow Justice Oder’s ruling on grounds that it’s good practice for the court to be consistent in handling and disposing of applications and appeals before it.

 But Justice Kisaakye, who has earned the tag of dissenting judge, owing to the fact that in most cases she disagrees with other justices on the panel, was having none of it.

“At the same time, I also agree with submissions of Counsel of the respondent [ Director of Public Prosecutions] the rulings of other single justices of this court are not binding on me,” she ruled.

“I would, therefore, only decide in a similar manner as my learned colleagues did, if after considering the law applicable to granting bail pending the hearing of an appeal,  I am convinced  that I should do so.”

Articles (23)(6) and 28(3)(a) of the Constitution have been cited by lawyers to justify granting bail pending appeal but Justice Kisaakye’s understanding of the said two Articles is that:  every person charged with a criminal offence shall be presumed innocent until proved guilty or until that person has pleaded guilty. 

“It’s trite law that before a court of law finds a person guilty as charged and proceeds to convict him or her, the prosecution must prove his or her guilt beyond a reasonable doubt,” she ruled.” 

“If any reasonable doubt remains in the mind of the judge, the accused person is acquitted.”  
 Upon analysing Articles (23)(6) and 28(3) (a) of the Constitution, Justice Kisaakye admitted that she had no option but to conclude that the Arvind Patel case was not correctly decided and that the whole concept of courts granting bail pending appeal is unknown to the 1995 Constitution human rights regime. 

“No Article of the Constitution talks about or supports the proposition that the presumption of innocence subsists after conviction of a person with a criminal offence,” Justice Kisaakye ruled.” On the contrary, Article 28(3) of the Constitution is explicit that the presumption of innocence is extinguished upon conviction.”                     
Secondly, Justice Kisaakye, who was among the justices who were bested by Justice Alfonse Owiny- Dollo for the Chief Justice’s position, pointed out that nowhere does the Constitution provide for the right of a convicted person to apply for bail. 

 “As noted earlier, Article 23(6)(a) which provides for the right to apply for bail only refers to a person arrested for a criminal offence and not a person already convicted of a criminal offence.”

Magombe’s lawyers, in applying for bail, had invoked rule 6(2) (a) of the Supreme Court rules which the Justice Kisaakye admitted gives powers to the court to grant bail pending appeal but  the judge said they can’t supersede the current constitutional order.    

 “However, I note that these rules which were made under Judicature Act Cap 13, cannot override the clear provisions of the Constitution I have cited,” she said.  

 Additionally, the judge said under Article 132(2) of the Constitution, the Supreme Court is restricted to only hearing appeals arising from decisions of the Court of Appeal, yet Magombe’s bail application pending appeal doesn’t fall in that classification.  

“This Article leaves no doubt in my mind that the mandate of the Supreme Court in criminal matters is restricted to hearing appeals,” she said. 

“It is not necessary for me to layout what hearing an appeal means in detail. It suffices for me to note that this entails the court examining the grounds of appeal that an applicant had laid out in his or her memorandum of appeal and the legal arguments made in support of his or her grounds of appeal should bring out the errors of law he or she contends were made by the Court of Appeal in confirming his or her conviction and or sentence.” 

She added: “It’s, therefore, my view that when the court hears an intended appellant, seeking to regain his liberty pending the hearing and disposal of his or her appeal as is the case in the present, the court is assuming jurisdiction it doesn’t have under the Constitution of Uganda.”  

 Without giving details, when interviewed on phone about their next move, Mr  Ochieng said he would appeal Justice Kisaakye’s ruing before a bench of five Justices of the Supreme Court. “Once we appeal, I will furnish you with my grounds of appeal.  So far I’m yet to draft them,” Ochieng said.