Do courts have power to grant bail pending appeal? 

For nearly two decades, the locus classicus on the subject of bail pending the determination of an appeal by a person who has been convicted of an offence in Uganda has been the decision by the late Arthur Oder JSC (RIP) in Arvind Patel v Uganda, Criminal Application No, 1 of 2003.

The recent decision by Justice Esther Kisaakye in Magombe v Uganda, Miscellaneous Application No. 11 of 2019 suggests that the whole concept of courts granting bail pending appeal is unknown to the human rights regime in the Constitution of Uganda.

Further, that Arvind Patel v Uganda and all other decisions that followed it were not correctly decided, since there is no constitutional or legal basis under which the Supreme Court or even a lower court is given power to consider and grant bail to a person pending the hearing of his or her appeal

The decision in Magombe v Uganda has created uncertainty as to whether the courts in Uganda have the jurisdiction to grant bail to a convicted person, pending the determination of his or her appeal.

It all started when Joshua Magombe was convicted by the High Court Anti-Corruption Division on four counts of criminal offences.

He appealed to the Court of Appeal, which reversed the conviction on two counts, but upheld the convictions and sentences on the other two counts.  Dissatisfied with the decision of the Court of Appeal, Magombe filed Criminal Appeal No. 39 of 2019 in the Supreme Court.

While the appeal to the Supreme Court was pending, he filed Miscellaneous Application No. 11 of 2019 for bail pending the determination of his appeal.

Justice Kisaakye, sitting as a single Justice of the Supreme Court of Uganda, considered Article 23(6)(a), which recognises the right to apply for bail, in the light of Article 28(3)(a) of the Constitution, which accords the presumption of innocence to a person charged with an offence.

The learned Justice concluded that Article 23(6)(a), which provides for the right to apply for bail only refers to a person arrested in respect of a criminal offence and not to a person already convicted of a criminal offence.

The whole concept of bail pending appeal is unknown to the human rights regime in the Constitution of Uganda.

Article 132(2) of the Constitution vests jurisdiction in the Supreme Court to hear criminal appeals and to deal with matters incidental to hearing of criminal appeals, but does not give powers to the Supreme Court to consider the release of a convicted person before disposal of his or her appeal.

She added that  Rule 6 of the Judicature (Supreme Court Rules) Direction SI 13-10 (the “Rules of the Supreme Court”) on which Magombe relied for his bail application is null and void to the extent that it gives the Supreme Court the power to grant bail pending appeal; yet (i) no such right exists under the Constitution; and (ii) no power to grant such bail is vested in the Supreme Court under the Constitution.

Crucially, the judge observed on page 19 of her decision that there is no provision, under the Constitution, which gives the Supreme Court or even a lower court power to consider and grant bail to a person pending the hearing of his or her appeal.

The question, therefore is in view of the decision in Magombe v Uganda, do courts in Uganda still have jurisdiction to grant bail pending appeal?

The analysis in Magombe v Uganda focused on Article 23(6)(a) of the Constitution, and did not consider other laws, which explicitly permit courts in Uganda to grant bail pending appeal.

Article 23(6)(a) of the Constitution provides as follows: “23. Protection of personal liberty. Where a person is arrested in respect of a criminal offence—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;”

The contextual interpretation of Article 23(6)(a) tends to support the learned Justice’s conclusion that the right to apply for bail under Article 23(6) does not extend to a person who has been convicted.

As rightly noted by the learned Justice, the right to apply for bail under Article 23(6)(a) is premised on the presumption of innocence, which is recognised under Article 28(3)(a) of the Constitution.

On the one hand, it could be argued that the fact that the right to apply for bail pending appeal is not specifically mentioned in the Bill of Rights under Chapter four of the Constitution does not mean that such a right is excluded. Such an argument is supported by Article 45 of the Constitution, which provides :“45. Human rights and freedoms additional to other rights.

The rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned.”

It could also be argued that the right to apply for bail pending appeal is not a human right, since it is not recognised in the Bill of Rights under Chapter Four of the Constitution.

Further, it is not premised on the presumption of innocence, which is the real basis for the right to bail. Upon pleading guilty or being convicted the presumption of innocence is extinguished.

Whatever conclusion one may draw (in regard to whether or not bail pending appeal is a human right recognised under the Constitution), the analysis of the constitutional or legal basis of the right to bail pending appeal cannot be complete without considering the provisions of Section 40 of the Criminal Procedure Code Act, Cap 116 (the “CPCA”) and Section 132(4) of the Trial on Indictment Act, Cap 23 (the “TIA”). in Magombe v Uganda, the learned Justice did not consider these provisions.

Section 40 of the CPCA provides: “40. Admission of appellant to bail and custody pending appeal.

(2)The appellate court may, if it sees fit, admit an appellant to bail pending the determination of his or her appeal; but when a magistrate’s court refuses to release a person on bail, that person may apply for bail to the appellate court.”

Clearly, the above legal provision permits the Magistrate Court or the High Court to grant bail pending appeal against a conviction and/or sentence by a Magistrate Court.

Section 132(4) of the TIA provides:“132. Appeals to the Court of Appeal from the High Court.

(4)Except in a case where the appellant has been sentenced to death, a judge of the High Court or the Court of Appeal may, in his or its discretion, in any case in which an appeal to the Court of Appeal is lodged under this section, grant bail, pending the hearing and determination of the appeal.

Accordingly, the Court of Appeal has jurisdiction to entertain and grant applications for bail pending the determination of an appeal against the decision of the High Court.

Obviously, neither the CPCA nor the TIA makes reference to the jurisdiction of the Supreme Court to grant bail pending appeal. This is due to the fact that the Supreme Court was established in 1995 by Article 130 of the Constitution, yet the CPCA was enacted in 1951 and the TIA was enacted in 1971.

Nevertheless, section 132(2) of the TIA applies to the Supreme Court by virtue of section 5(11) of the Judicature Act, Cap 13 (the “Judicature Act”), which provides as follows:

“5. Appeals to the Supreme Court in criminal matters.

(11)Section 132(4) and (5) of the Trial on Indictments Act shall, with necessary modifications, apply to the Supreme Court.”

Suffice to note that Article 132(2) of the Constitution provides that an appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law.

Section 5 of the Judicature Act was enacted by Parliament to prescribe how the Supreme Court will exercise the jurisdiction vested in it, under Article 132(2) of the Constitution, when dealing with appeals in criminal matters. Thus, one can strongly argue that Article 132(2) of the Constitution cannot be read in isolation of Section 5 of the Judicature Act. Reading Article 132(2) of the Constitution together with Section 5(11) of the Judicature Act would lead to a conclusion that the Supreme Court may, while exercising the jurisdiction vested in it under the Constitution, grant bail to the appellant, pending the determination of his or her appeal.

Rule 6(2)(a) of the Supreme Court Rules, which the learned Justice declared to be contrary to the Constitution, and therefore null and void, was enacted with approval of Parliament to operationalize Section 5(11) of the Judicature Act.

I understand that a reference has been made to a bench of three justices of the Supreme Court which may confirm, vary or reverse the decision in Magombe v Uganda under Section 8(2) of the Judicature Act.

The late Justice Arthur Oder, who wrote the decision in Arvind Patel v Uganda, seldom got his legal points wrong! We eagerly await the decision of the full bench.

Issue

Powers

The Court of Appeal has jurisdiction to entertain and grant applications for bail pending the determination of an appeal against the decision of the High Court.

Kusaasira is an a dvocate with ABMAK Associates