LEGAL BRAINS TRUST KAMPALA

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Memorandum for the Uganda Press From: Date: Re: 1. Isaac S. Kimaze, CEO Legal Brains Trust 25 May 2011 THE PRESIDENT WILL NEED A REFERENDUM TO SCRAP BAIL The decision of the Supreme Court of Uganda in Dr. Paul K. Ssemogerere & Ors v. Attorney General Constitutional Appeal No. 1 of 2002 which nullified the First Amendment to the Constitution should send a sobering warning to the President and his supporters in the NRM Government who think that a parliamentary majority vote is sufficient to amend the Constitution to deny bail to persons accused of certain offences, including murder, treason, economic sabotage, defilement, rioters and rape. In the absence of a referendum, any attempt to scrap bail in the terms proposed by the President shall be blatantly illegal and unconstitutional. According to Justice Kanyeihamba, who delivered the lead judgment of the Supreme Court in Ssemogerere v. Attorney General on the 29th January 2004, an amendment to the Constitution may be effected expressly, by implication or by infection, as long as the result is to add to, vary or repeal a provision of the Constitution. It is not material whether the amending Act states categorically that the Act is intended to affect a specified provision of the Constitution. It is the effect of the amendment that matters. However, before any provision of the Constitution is amended, whether expressly, by implication or by infection, the proper procedure for amending that provision must be strictly followed. Article 262 of the Constitution provides that a bill for an Act of Parliament which seeks to amend the right to liberty as enshrined in Article 23 of the Constitution (including the universal right to apply to the court for bail as we presently understand it) shall be taken as passed if it is supported at the second and third reading by the votes of not less than two-thirds (67%) majority of all members of Parliament. This should be an easy victory for the President given the fact that his NRM Party holds 279 out of the 375 parliamentary seats that comprise the Ninth Parliament (at least 74% of all MPs today).

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However, it is my considered view that the Presidents widely publicized proposals for amending the constitutional provisions on bail inescapably amend several other provisions of the Constitution, either by implication or by infection, and will therefore require more than a parliamentary majority vote of at least 67% of all MPs to become legal. Some of these provisions, such as Articles 28 (3), 44 and 128 (1) can only be lawfully amended by a referendum coupled with a parliamentary majority vote of at least 67% of all MPs in the Ninth Parliament. See Article 260 of the Constitution (amendments requiring a referendum). Let me illustrate. By seeking an amendment of the Constitution to compulsorily deny bail to persons accused of certain offences, the following constitutional provisions shall inevitably be amended either by implication or infection: The constitutional right to a fair hearing, especially the right of an arrested, detained or accused person to be presumed innocent until proved guilty or until he or she pleads guilty, as enshrined in Articles 28 (3) and 44; The right to liberty as enshrined in Article 23 as a whole; The right of an arrested, detained or accused person to challenge the lawfulness of his or her detention through habeas corpus proceedings as enshrined in Articles 23 and 44; The right to be treated equally before and under the law and freedom from discrimination as enshrined in Article 21; and Independence of the judiciary as enshrined in Article 128 (1) and several other provisions of the Constitution. Thus, according to Articles 259, 260 and 263 as well as the unanimous judgment of the Supreme Court of Uganda in the Ssemogerere case, a bill seeking to incorporate the Presidents proposals to compulsorily deny bail for persons accused of certain offences shall not be taken as passed if it is not subsequently referred to a decision of the people and approved by them in a referendum. In other words, it is not enough to have the bill in question supported by a parliamentary majority vote of at least 67% of all MPs in the Ninth Parliament at both the second and third reading of the bill. The people of Uganda must have the ultimate say on the Presidents proposals to compulsorily deny them bail when they are arrested, detained and accused of certain offences.

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Considering the priority assigned by the President to the Bail Project, I am inclined to believe that at some point in the middle of the Presidents Fourth Term Ugandans shall be rallied once more to express their approval or disapproval of a constitutional amendment to compulsorily deny persons arrested, restricted or detained in respect of certain offences the right to apply to the court to be released on bail. Unfortunately, the constraints of time and space limit my ability to discuss the implications of this referendum in the present article. Before I conclude this article, I would like to express my sincere gratitude to the newly elected president of Uganda Law Society Mr. James Ssebugenyi, Senior Counsel. In his article published in the New Vision of the Monday, the 23rd May 2011, Mr. Ssebugenyi warned us of the practical dangers of the Presidents proposals for compulsory denial of bail for certain suspects, and suggested to us some urgent measures which I, too, believe can and should be taken to avoid these dangers. Like him, I also think that there are less drastic means to alleviate the mischief identified by the President and I am willing to support and advise the President in this endeavour should he be inclined to denounce the Bail Project in its current form. Let it be known here and now that in order to guarantee every person the right to a fair hearing and equal protection before and under the law, among other civil liberties, our Constitution has reserved its greatest protection for persons who are arrested, restricted or otherwise detained in respect of a criminal offence. Besides being presumed innocent until proved guilty, an arrested, detained or accused person is given a series of other allied rights which are difficult to unbundle without overhauling the entire constitutional order. Against this background, the Presidents efforts to scrap bail for persons arrested, restricted or detained in respect of certain offences shall not register any meaningful result except to abrogate the Constitution, agitate the people, and waste taxpayers money. I urge the Presidents Office to denounce the Bail Project in its current form and pursue a constitutional and legislative agenda that vividly promotes the rule of law, ensures equal and equitable access to justice and tackles the root causes of exclusion, vulnerability and poverty in Uganda.

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About the author Isaac S. Kimaze is a community development and human rights consultant at Legal Brains Trust. He can be reached by email: isaackimaze@yahoo.co.uk or mobile +256777-092-433.