In two landmark rulings, High court judge Paul Gadenya Wolimbwa has held that courts are constitutionally obliged to grant bail to accused persons who have spent more than 180 days on remand without their cases being committed to the High court for trial.

In the separate rulings, which granted bail to one applicant charged with murder and aggravated robbery and another charged with aggravated robbery and attempted murder, justice Gadenya also ruled that such applicants are not required to demonstrate exceptional circumstances to qualify for 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,” 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.”

One of the applications was filed by Marijani Swaibu, who was arrested on November 3, 2024, on allegations of aggravated robbery and murder before being detained at Kabalagala Police Station.

He was first arraigned before the Makindye Chief Magistrate’s court on December 11, 2024, and had remained on remand at Luzira Upper Prison ever since. His case had repeatedly come up for mention before the Chief Magistrate’s court as investigations remained incomplete.

The second ruling concerned Abdul Nsereko, who was arrested in Bwaise and charged before Nabweru Magistrate’s court with aggravated robbery and attempted murder on July 3, 2024.

Like Swaibu, Nsereko had remained on remand without his case being committed to the High court for trial. The Director of Public Prosecutions (DPP) opposed both applications, arguing that the accused faced offences punishable by death and therefore posed a high flight risk.

The prosecution also contended that both Swaibu and Nsereko had failed to demonstrate exceptional circumstances warranting bail or prove fixed places of residence through documents such as land titles or utility bills.

The DPP further argued that investigations were still ongoing and that releasing the applicants could expose witnesses to interference.

Justice Gadenya rejected those arguments, holding that once the constitutional conditions for mandatory bail are met, the court’s discretion is limited to determining appropriate bail conditions.

“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,” Gadenya ruled.

The judge added that Parliament’s legislative history reinforced that interpretation.

“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 days. 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 further held that bail conditions imposed by courts must not undermine the constitutional right to mandatory bail.

He said such conditions should only serve the constitutional purpose of securing an accused person’s attendance at trial and protecting the integrity of proceedings, while remaining 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,” Gadenya ruled in the Swaibu case.

In the Nsereko ruling, the judge also dismissed the prosecution’s reliance on exceptional circumstances, the gravity of the charges and proof of residence.

“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.

The judge granted both applicants a non-cash bail of Shs 10 million each. Their two sureties were each bo...

The Observer

Message History

Delivery option(s)