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8/4/2019 The Decision Under Consideration is the Case of Uganda DPP vs Colonel Retired Dr
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The decision under consideration is the case of Uganda DPP Vs Colonel Retired
Dr.Kiiza Besigye Ref.No20 of 25 September 2006. The case was filed in the
Constitutional court, Kampala, Uganda. The Respondent and twenty two other
detainees were charged with treason under Section 23(1) of the Penal Code Act.
The respondent was in addition charged with rape under Section 123 of the Penal
Code Act and applied for bail in accordance with Article 23(6)(a) of the Constitution.This article provides that the High Court may grant bail to a detainee or applicant.
T he issue in the case that required the Constitutional Courts determination was
whether or not granting bail under Article 23(6)(a) of the Constitution is an
automatic right or discretionary.
The Constitutional court came with an analysis that when interpreting an article of
the Constitution, it was appropriate to look at all the articles relevant to the subject
matter and analyse them as a whole. The Constitutional court ruled that Article
23(6)(a) of the Constitution is discretionary. It argued that while the seriousness of
the offence and the possible penalty which could be meted out are considerationsto be taken into account when deciding whether bail should be granted or not.
The Court has to be satisfied that the applicant will appear for trial and would not
abscond. In addition the applicant should not be deprived of his or her freedom
unreasonably and bail should not be merely refused as punishment as this would
conflict with the presumption of innocence.
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 court should summon its judicial mind to bear on the matter beforedepriving the applicant their liberty. The court should consider all relevant
circumstances; it argued that the High Court and subsidiary courts should have
power to determine whether or not bail should be granted.
In a critical examination of the main issue and judgment in this case. I would agree
with Constitutional Courts ruling that the High Court and other subordinate courts
have the power or discretion to determine whether or not bail should be granted.
The Constitutional Courts interpretation of Article 23(6)(a) of the Constitution has
two important objectives. The first is respect for the right of the detainees
constitutional presumption of innocence and secondly the protection of rape victims
,in some cases by keeping their perpetrators behind bars until the date of trial . Thisis because of the fear of revenge by the perpetrators and this is one of the main
reasons why rape victims do not report the incident to police.
Another African jurisdiction takes a firmer stance towards accused rapists. In
Botswana, the High Court held Section 142(1)(a) of the Botswana Penal Code (as
amended by Act No.5 of 1998 unconstitutional on similar grounds . This provision
automatically denied bail to a person charged with rape. Such a provision makes it
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mandatory for the court as in the judgment of the of the case should have
discretionary powers as to whether or not to grant bail to the accused considering
all relevant circumstances.
The rights of the victimized people should be protected from victimization and
lawlessness that may be meted out to the people being remanded in prisoncustody. This may adversely affect the welfare of their families. In respect, various
factors have to be considered such as the risk of absconding and interference with
the course of justice. This means that where there is a substantial likelihood of the
applicant failing to show up for trial, bail may not be granted for less serious
offences. In such circumstances, the court must weigh the gravity of the offence
and all other factors that are against the likelihood of the applicant absconding.
Where facts come to light and it appears there is substantial likelihood of the
applicant offending while on bail to such a person
It should be noted that in Uganda applicants must be presumed innocent unless
proven guilty and should not be denied bail in case his human rights are tamperedwith that the court has to be satisfied that the applicant will appear for trial and will
not abscond, this does not mean that the applicant should not be deprived of his or
her freedom or rights unreasonably and bail should not be refused.
In the case ofLayan Yahaya Vs Uganda, High Court Miscellaneous Application No.
96 200, and Luyigazi Held:
In other words since Article 28(3)(a) of the constitution. A suspect in a
criminal case
Is presumed innocent until proven guilty or is has pleaded guilty. It makes sense to
say that when such a suspect applies for bail court of law would act
unconstitutionally if it refused to grant him or her bail.
A refusal to grant bail by the court to such a suspect would mean it is in controversy
with Article 28(3)(a) of the constitution and would be acting unconstitutionally. I
disagree with this because it would mean that bail is mandatory and courts should
grant it whatsoever. Suspects of major criminal offences like murder, rape, treason,
among others should not be granted bail because they may be a threat to society
and if released, may harm other innocent people. Therefore courts should have the
discretionary power of whether or not to grant bail and may grant such a person
bail if it considers that he may not be a threat to society.
Under Article 23(6)(a) of the Constitution, it is provided that where a person is
arrested in respect of a criminal offence, the person is entitled to apply to the court
for bail and the court may grant the person bail on conditions it considers
reasonable. The word may as defined by Bryan A. Ganner ,BLACKS LAW
DICTIONARY ,9th edition ,West Group 2009.,pp 121,means optional or discretional.
Therefore the courts having power to determine whether or not to grant bail is in
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conformity with the constitution. Article 2(1) of the Constitution provides: The
Constitution is the supreme law of the land and shall have binding force an all
authorities and persons in Uganda. It is further provided for in Article 2(2) that any
law inconsistent with the Constitution is null and void to the extent of its
inconsistency and the constitution shall prevail.
The courts thus have to reach decisions that are in conformity with the Constitution.
Since the discretion of whether or not to grant bail by the courts is provided for in
the Constitution, the courts exercising such powers would be acting in accordance
with the Constitution.
Thomas J. Gardner and Terry M. Anderson, CRIMIMAL LAW, 10th edition
Thomasworsworth2009 pp443, talks of failure to appear before court for trial after
being granted bail. This is known as bail jumping. A criminal defendant free on bail
may be charged with criminal contempt for such an offence. However defendants
may not appear before court after being granted bail because of reasons out their
own control such as hospitalization for serious illness. The court ought to considersuch circumstances as to whether the accused will be able to appear for trial or not
in order to grant bail. This would not be possible in a situation where granting bail is
mandatory. I agree with the judgment in the case because this would ensure that
the accused does not evade trial after being granted bail.
A.W Bradley and K.D Ewing, CONSTITUTIONAL AND ADMINISTRATIVE LAW, London,
Pearson pp368-369, judicial independence is put across. According to this book, the
Lord Chancellor must have regard to the need to defend the independence of the
judiciary. In addition the principle of judicial independence is now formally
recognized legislation. Judicial independence also puts forward the principle of
separation of powers where every organ of government carries out its functionswith minimal interference from the other. T therefore the courts having power of
whether or not to grant bail is an illustration of such independence. T his would
ensure efficiency and effectiveness of the courts in carrying out their judicial
functions.
The power of courts to grant or not to grant bail is seen as a way of ensuring justice.
Lord Herwat CJ, coined the famous phrase, justice must not only be done but must
be manifestly seen to be done. The courts are thus required to be impartial as they
carry out their judicial functions, such as granting bail or not granting bail to the
accused.
However, sometimes the courts maybe biased in the exercise of these discretionary
powers which may be a detriment to the accused and to the public as a whole.
Courts may deny an accused person bail basing on religious affiliation, tribe, social
and economic standing. Courts are called upon to be impartial while using such of
power to grant or not to grant bail to an accused person.
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In conclusion, the issue and the judgment in the case of Uganda DPP Vs Colonel
Retired Dr. Kiiza Besigye are rather advantageous due to a number of reasons
discussed above. Such a decision by the court in this case would ensure that justice
is promoted, the public is protected and above all, the Judiciary would carry out its
judicial functions effectively for the proper growth and development of the country.
References
Botswana Penal Code Act Amendment Act No.5 of 1998
Bryan A Ganner BLACKS LAW DICTIONARY 9th edition, West group 2009 p121
Layan Yahaya Vs Uganda High Court Miscellaneous Application No. 96/ 20
Uganda Dpp Vs Colonel Retired Dr. Kizza Besigye Ref .No.20 of 2005, 25 September
2006
The Constitution of the Republic of Uganda 1995
A.W Bradely and K.D Ewing CONSTITUTIONAL AND ADMINISTRATIVE LAW, London,
Pearson p.368-369
Thomas J. Gardner and Terry .M Anderson CRIMINAL LAW, Thomson Wadsworth
2009, 2006 p443
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NAME: NAMUSAABI MARTHA
STUDENT NUMBER: 210000837
REGISTRATION NUMBER: IO/U/857
COURSE: LAW
COURSE UNIT: CONSTITUTIONAL LAW
LECTURER: OLOKA ONYANGO
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