[2006] UGCA 42
The Constitutional Court held that under Article 23 (6) of the Constitution, courts possess discretion to grant or refuse bail, but this discretion must be exercised judiciously and not as a punitive measure. Bail should not be refused merely as punishment, as this would conflict with the presumption of innocence...
Source-derived case information.
- Citation
- [2006] UGCA 42
- Parties
- Applicant: Uganda; Respondent: Col. (R I D) Dr Kizza Besigye
- Court
- Court of Appeal of Uganda
- Jurisdiction
- Uganda
- Case Number
- Constitutional Reference No. 20 of 2005
- Procedural Posture
- Constitutional Reference / Determination of Reference on Bail Discretion
- Outcome
- bail granted
- Legal Topics
- Bail Discretion, Presumption of Innocence, Exceptional Circumstances, Interpretation of Constitution, Treason Charges, Rape Charges
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Uganda
Applicant
Col. (R I D) Dr Kizza Besigye
Respondent
Procedural Posture
Constitutional Reference / Determination of Reference on Bail Discretion
Legal Issues
- 1 Whether under Article 23 (6) of the Constitution, courts have discretion to grant or not to grant bail.
- 2 Whether refusal to grant bail can be based on mere allegations or used as punishment contrary to the presumption of innocence.
- 3 Whether both High Court and subordinate courts possess discretionary powers to set bail conditions.
Ratio Decidendi
The Constitutional Court held that under Article 23 (6) of the Constitution, courts possess discretion to grant or refuse bail, but this discretion must be exercised judiciously and not as a punitive measure. Bail should not be refused merely as punishment, as this would conflict with the presumption of innocence guaranteed by the Constitution. Refusal to grant bail must be based on substantiated grounds, not mere allegations. Both the High Court and subordinate courts have the authority to set reasonable bail conditions, but must do so with caution and in accordance with the law. The court resolved the conflicting interpretations of Article 23 (6) (a) and clarified that the discretion...
Court Disposition
bail granted
Orders
- The applicant is granted bail.
- Bail conditions to be set reasonably by the trial court.
Full Case Text
Judgment text and source record
34 paragraphs
**THE REPUBLIC OF UGANDA**
**CONSTITUTIONAL COURT**
**CONSTITUTIONAL REFERENCE NO. 20 OF 2005**
**(CORAM: MUKASA-KIKONYOGO; DC. J, OKELLO, MPAGI- BAHIGEINE, KITUMBA AND BYAMUGISHA, JJ. A)**
**UGANDA;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;PROSECUTOR**
**VERSES**
**COL. (R I D) DR KIZZA BESIGYE;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;ACCUSED**
*Criminal Law*—*Treason*—*Treason contrary to Section 23 (1) (c) of Penal Code Act*
*Criminal Law*—*Rape*—*Rape contrary to Section 123 of Penal Code Act*
*Constitutional Law*—*Bail—Applicant not to be deprived of his/her freedom unreasonably*
*Constitutional Law*—*Bail*—*Refusal to grant bail*—*Bail not to be refused merely as punishment as this would conflict with presumption of innocence*
*Constitutional Law*—*Bail—Refusal to grant bail—Refusal to grant bail not to be based on mere allegations*
*Constitutional Law*—*Bail*—*Discretion to set bail conditions*—*Both High Court and subordinate Courts have discretionary powers to set bail conditions which they deem reasonable, though this must be done with caution*
This matter was placed before the Constitutional Court by way of reference under Article 137 (5) of the Constitution of the Republic of Uganda, 1995. The main thrust of this reference was “whether under Article 23 (6) of the Constitution, Courts have the discretion to grant or not to grant bail.
The respondent (a presidential candidate) and 22 others had been arrested and jointly charged with treason contrary to Section 23 (1) (c) of the Penal Code Act. The respondent was also charged with rape contrary to Section 123 of the Penal Code Act.
He applied for bail which was opposed by the Director of Public Prosecutions (DPP). The principle Judge granted the respondent interim bail and referred the matter to the Constitutional Court for determination in regard to grant of bail.
The DPP opposed the bail application on two grounds, namely: that the Court has discretion to grant or not to grant bail, pointing out that, however, in the case of the applicant, there were no exceptional circumstances as stipulated under Section 15 of the Trial on Indictment Act, Cap 23 which would warrant the exercise of Court’s discretion in the applicant’s favour. Secondly, that 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 are bound by the High Court decisions.
**HELD:**
The applicant should not be deprived of his/her freedom unreasonably and bail should not be refused merely as a punishment as this would conflict with the presumption of innocence. The refusal to grant bail should not be based on mere allegations. The grounds must be substantiated. Both High Court and the subordinate Courts have discretionary powers to set bail conditions which they deem reasonable, though this must be done with caution
*Bail granted.*
*Dated on 25th day of September 2006 at Kampala*
*MUKASA KIKONYOGO, DC. J*
*OKELLO, J. A*
*MPAGI BAHIGEINE, J. A*
*KITUMBA, J. A*
*BYAMUGISHA, J. A*
**Legislation considered:**
Penal Code Act, Cap 106, Sections 23 (1) (c)
The Constitution of the Republic of Uganda, 1995, Articles 23 (6), (a), 137 (5)
Trial on Indictment Act, Cap 23, Section 15
**Case cited:**
Layan Yahaya Vs Uganda, High Court Miscellaneous Criminal Application No. 96 of 2005
**Other legal materials referred to:**
Black’s Law Dictionary, Sixth Edition