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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 considerations to 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 before depriving 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 . This is 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

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 prison custody. 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 tampered with 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 of Layan 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

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 consider such 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 functions with 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.

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

NAME:

NAMUSAABI MARTHA

STUDENT NUMBER: 210000837

REGISTRATION NUMBER: IO/U/857

COURSE: LAW

COURSE UNIT: CONSTITUTIONAL LAW

LECTURER: OLOKA ONYANGO