Kampala, Uganda | URN | In two unprecedented rulings, High Court judge Paul Gadenya Wolimbwa has said that courts have no option but to grant mandatory bail to accused persons after spending 180 days on remand before being committed to the High court.
In two separate rulings in which he allowed bail for one person accused of murder and aggravated robbery and the other accused of aggravated robbery and attempted murder, Justice Gadenya said the applicants for bail also need not to show exceptional circumstances for them to be released on bail.
“Article 23(6)(c) provides that a person arrested for an offence triable only by the High Court, who has been remanded in custody for one hundred and eighty days before the case is committed for trial, is entitled to apply for release on bail, and that the court shall release that person on such conditions as the court considers reasonable,” Judge Gadenya said in his rulings. “The sub-article speaks in two registers at once: an entitlement to apply, which is unremarkable, and a duty upon the court to release, which is not. The permissive and the mandatory sit side by side, and it would be a mistake to let the former override the latter. Once an accused person has spent more than 180 days on remand without committal, the court has no choice but to release the person on reasonable conditions.”
The application was filed by a one Marijani Swaibu, who was arrested on November 3, 2024, on allegations of aggravated robbery and murder, and was thereafter detained at Kabalagala Police Station. He was first arraigned before the Chief Magistrate’s Court of Makindye on December 11 2024. Since Since his araignment, Swaibu had remained on remand at Luzira Upper Prison.
His case has come up before the Chief Magistrate’s Court for mentions as investigations remain incomplete.
Another case where Justice Gadenya also ruled in the same way involves a one Abdul Nsereko who was arrested from Bwaise and charged at the Nabweru magistrate court on charges of aggravated robbery and attempted murder on July 3, 2024. Since then, his case had not also been referred to the High Court for trial. The DPP opposed granting bail to Swaibu arguing that he was charged with a serious offence that carry the maximum penalty of death, and that the temptation to flee is correspondingly high.
The DPP also argued that both Nsereko and Swaibu did not demonstrate exceptional circumstances warranting bail, nor had they established a fixed place of abode within the jurisdiction whether by title deeds or utility bills.
The DPP submitted that investigations remain ongoing and that there is a real possibility of interference by the applicants with witnesses. But in his ruling in the Swaibu case, Justice Gadenya said that once the constitutional preconditions for bail are satisfied, the court’s discretion is confined to fixing appropriate condition of granting bail alone.
“The Constitutional Court reached a similar conclusion, holding that bail is not a peripheral or technical entitlement but an essential incident of the rights to liberty and human dignity, and warning against permitting generalised appeals to the seriousness of an offence or public concern to override express constitutional protection…these authorities leave no room for an approach that revisits the entitlement once it is established; the entitlement is settled by Article 23(6)(c) itself and what this Court decides is downstream of it,” Justice Gadenya ruled. He added that Parliament’s own history with this provision confirms the point that suspects on remand must be released after 180 days if they have not been committed for trial.
“Before the Constitution (Amendment) Act of 2005, the qualifying period for an offence of this kind stood at three hundred and sixty days;” the judge went on. “It was Parliament, not the courts, that found the earlier threshold too generous to the state and too indulgent of delay, and shortened it to one hundred and eighty. A provision deliberately tightened in this way is not one a court should approach as though it retained an unspoken discretion to relax it again by another route. Parliament has already weighed the gravity of capital and High-Court-only offences in fixing the qualifying period at 180 days, rather than the sixty days that apply to offences of concurrent jurisdiction; it is not open to a court, in applying the provision, to relitigate that legislative judgment by declining or delaying release on account of the gravity of the charge.”
Justice Gadenya added that even when imposing conditions for bail, the courts must ensure these conditions are not to defeat the right to bail.
He said such conditions must serve their constitutional purpose to secure the accused’s attendance at trial and to protect the integrity of the proceedings. The conditions must also be proportionate to the applicant’s circumstances.
“A bond or surety requirement set at a level the applicant cannot conceivably meet defeats the very right the Constitution has conferred, since mandatory bail granted in name but rendered practically unattainable is no bail at all. The quantum of any bond, and the number and standing of sureties required, must be calibrated to what is realistically available to the particular applicant,” Justice Gadenya ruled in the Swaibu case. “It follows that the Applicant is entitled to be released on mandatory bail under Article 23(6)(c) of the Constitution.
Three of the Respondent’s objections nonetheless require brief comment. First, the submission that the Applicant demonstrated no exceptional circumstances is, with respect, misconceived. Exceptional circumstances, as elaborated in Direction l4(2) of the Bail Guidelines, are relevant to a discretionary application for bail by a person charged with a grave offence before the constitutional remand period has run. They have no place in an application under Article 23(6)(c), whose purpose is that, once one hundred and eighty days have passed without committal, the applicant need show nothing more than the fact of that lapse.
Secondly, for the same reason, the gravity of the offences and the apprehended risk of flight cannot defeat the entitlement to release; as the authorities set out above show, they inform and in this case have informed the stringency of the conditions imposed below.
Finally, the complaint that the Applicant failed to prove a fixed place of abode by producing a certificate of title or utility bills asks more of him than the law requires. Neither the Constitution nor the Bail Guidelines requires an applicant to own the home in which he lives.
Direction 12 requires the applicant’s particulars, supported by, among other things, a copy of his national identity card and an introduction letter from the Local Council chairperson of the area where he resides,” Justice Gadenya ruled in the Nsereko case.
He accordingly allowed the accused persons get a non cash bail of Shs 10million with two sureties both bonded Shs 5million also noncash. On many occasions, the High Court and Magistrate courts have denied applicants bail even when they have demonstrated that they have spent more than the mandatory 180 days on remand before their cases have been committed to the High court.
Courts have cited different reasons to deny bail to applicants. In his Saturday address, President Yoweri Kaguta Museveni said courts may deny “opposition lawbreakers” bail for fear of interfering with witnesses.
Many accused persons including political prisoners have spent months and others years before their files are committed to the High court.
However, every time they have applied for bail, it has been denied.
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