Col. (Rtd.) Dr. Kiiza Besigye v Uganda (Criminal Misc. Application No. 228 of 2005) [2005] UGCA 100 (25 November 2005)

# **REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **CRIMINAL MISC. APPLICATION NO. 228 OF 2005**

**AND**

**CRIMINAL MISC. APPLICATION NO. 229 OF 2005** *(Arising from Buganda Road Criminal Case Nos: 794 of2005 and 955 of2004 respectively)*

**COL. (RTD.) DR. KIIZA BESIGYE APPLICANT**

#### **VERSUS**

**UGANDA RESPONDENT**

## **BEFORE:THE HON. THE PRINCIPAL JUDGE, MR. JUSTICE JAMES OGOOLA**

#### **RULING**

The Applicant, Dr. Kiiza Besigye, has come to this Court seeking bail pursuant to the Court's discretionary authority embedded in Articles 26 and' 28 of the Constitution. For the record, the Applicant has brought two distinct applications (M. A. No. 228 of 2005 and M. A. No. 229 of 2005) seeking bail in regard to the two criminal charges levelled against him - namely: treason, and rape, respectively. However, the Court and the respective counsel for both parties have agreed to assimilate the two applications into one consolidated hearing.

The Applicant's primary ground for seeking bail is that bail is a Constitutional right to be granted in the discretion of the Court, subject only to such conditions as may be imposed by the Court. The learned Assistant Director of Public Prosecutions challenged this rendering of the law. Moreover, she also raised the specter of the recent past, in which some Judges of the High Court have granted bail as an automatic right under the Constitution; while other Judges of this same High Court

have granted or denied bail on the basis of the statutory provisions of the Trial on Indictments Act (Cap.23). That Act predates the present Constitution of Uganda of 1995. In this regard, the learned Assistant Director of Public Prosecutions cited three High Court cases - namely: **Katuramu v Uganda, Case No. 1 of 2000; Byaruhanga Rugyema v Uganda, Case No. 87 of 1988; and Matove v Uganda Criminal Miscellaneous Application No. 15 of 2005.** There is thus <sup>a</sup> real and serious controversy as to what is the true state of the law. How are we to interpret and apply the relevant Articles of the Constitution? Are the bail provisions of the Trial on Indictments Act (Cap. 23) - let alone those of the Magistrates' Courts Act (Cap. 16), and of the Uganda Peoples Defence Force Act (Cap.307) constitutional or not? The situation now obtaining is contradictory and embarrassing at the High Court; and is downright confusing and perplexing as concerns the subordinate courts - whose decisions and judgments must follow the decisions and judgments of the High Court.

From a careful reading of the Constitution, the law on bail appears to be built on the following three massive pillars:

- (i) Article <sup>23</sup> (6) (a) of the Constitution which gives every person arrested for a criminal offence, the right and entitlement to *apply* for bail. Upon such application, the Court *may* grant bail to the accused. In doing so, the Court has total, unlimited discretion - subject only to exercising that discretion judiciously. - (ii) Article <sup>23</sup> (6) (b) and (c) of the Constitution which gives an automatic right to bail to every person arrested for a criminal offence and remanded in custody before trial beyond the Constitutionally prescribed period of 120, 180 or, as the case may be, 360 days.

In the above two cases of Article 23 (6) (b) and (c):

- (a) the accused has a right to be released forthwith. The Court has no discretion as to whether to grant or deny bail; - (b) when the Court grants bail, it does so upon such conditions as it may consider reasonable.

(iii) Given the above position, the bail provisions of the Taril on Indictments Act, the Magistrates' Courts Act, and the Uganda Peoples Defence Forces Act must now yield to the above Constitutional provisions if and to the extent that they conflict with those Constitutional provisions - see Article 273 of the Constitution. That is why in the case of **Tumushabe v Attorney General, Constitutional Petition No. 6 of 2004,** the Constitutional Court went out of its way to observe that:

> *"...the law that governs bail in Uganda is contained in Article 23 (6) (a), (b) and (c) of the Constitution. AH other laws on bail in this country that are inconsistent with or which contravene this article are null and void to the extent of the inconsistency. The Attorney 'General of Uganda needs to take a doser look at sections 75 and 76 ofthe Magistrates' Courts Act (Cap. 16) and sections 15 and 16 ofthe Taril on Indictments Act (Cap. 23). There may be urgent need to bring them in conformity with article 23 (6) ofthe Constitution".*

In the **Tumushabe** case *{supra},* the Constitutional Court appears to have addressed the predicament surrounding the above contradictory bail decisions of the High Court. Nonetheless, in my view, although the Constitutional Court's judgment in the **Tumushabe** case is quite comprehensive, the Constitutional Court was dealing with a slightly different question - namely, whether the Constitutional provisions on bail apply to a matter before a General Court Martial? In the instant application, the primary issue is more pointed: does the Constitution confer a right to bail, or only a right to apply for bail? That question needs to be answered frontally and without equivocation by the appropriate Court in this land. Equally the competent Court should definitively rule on whether the bail provisions of the Trial on Indictments Act are still good law or not. Are they constitutional or void? Have they been sanitized - in terms of Article <sup>273</sup> of the Constitution; and the holding of the lead judgment in the **Tumushabe** case?

The question then is: which is the competent Court to deal with the above issues?

J

Under Article 137, Clause (1) provides the answer - thus:

*"(1) Any question as to the interpretation ofthis Constitution shall be determined by the Court ofAppeal sitting as the Constitutional Court".*

Pursuant to the above authority questions of Constitutional interpretation are to be referred to the Constitutional Court under the following Clause (5) of Article 137:

*"(5) Where any question as to the interpretation ofthis Constitution Arises in anyproceedings in a Court oflaw other than a Field Court Martial, the Court -*

- *(a) may, ifit is ofthe opinion that the question involves <sup>a</sup> substantial question oflaw; and* - *(b) - shall, ifanyparty to the proceedings requests it to do so, refer the question to the Constitutional Court for decision in accordance with Clause (1) ofthis Article".*

It is therefore quite evident that under Article 137, Clause 5(b) of the Constitution, once a party requests referral of a question of interpretation to the Constitutional Court, the Court in which that request is raised, has no option or discretion but to make the reference to the Constitutional Court. Reference under Clause 5 (b) of Article 137 of the Constitution is *mandatory -* unlike referral under Clause 5 (a) of the same Article, which is *discretionary.*

In the instant application, the learned Assistant Director of Public Prosecutions has, by specific application and prayer, expressly raised the issue of referral of the question to the Constitutional Court for the proper and competent interpretation of Article 23, Clause (6), and its application. I am, therefore, bound by the dictates of Article 137, Clause 5 (b) of the Constitution to refer that question to the Constitutional Court. I am disposed to grant the prayer of the learned Assistant Director of Prosecutions requesting referral of the specific Constitutional question in this matter to the Constitutional Court.

In the meantime, I have also given considerable thought to the circumstances of this case. On the one hand, I have considered the sheer enormity of the charges preferred against the accused - especially the charges of treason and misprison of treason - together with the gravity of the sentences that attach to those charges. These militate against release of the accused - except upon hefty conditions designed to ensure that the accused will not abscond by jumping bail. On the opposite hand, however, the accused like every other citizen of this country is entitled to the liberty that is assured by our Constitution. In the case of this particular accused, learned counsel Njuba did in his submission highlight quite extensively the significance of the accused's political leadership of his political party. Learned counsel submitted, (and, in any event, this Court takes judicial notice of the fact) that the accused has been duly nominated by his political organization as President of that organization to contest for the highest political office in this land. The national election roadmap is very tight. Time for political campaigns is of the essence. The accused's unfettered liberty is, therefore, of paramount significance not only to his personal political fortune, but also to the fortunes of the political organization that he leads. Given all the above, I have had to consider carefully a number of other related factors. First and foremost, I have had to weigh the gravity of the charges against the accused and the severity of the attendant sentences for those charges. But equally importantly, I have also weighed the mitigating factors in this case. These include the fact that the applicant:

- (a) has a fixed place of abode in Uganda (in both Rukingiri and in Luzira, Kampala); - (b) has no disclosed or apparent record of any previous imprisonment; - (c) has not jumped bail on any previous occasion; and - (d) has not evinced any likelihood of committing an offence.

In addition, I am fully satisfied with the sufficiency of the Applicant's proposed sureties - **see R, v Saunders (1841) 2 Cox C. C. 249.** All five sureties are serious and substantial persons of exceedingly well known public stature.

All the above factors are sufficient testament to the securing of the accused's subsequent appearance before this Court when his presence will be needed which, after all, is the basic object of bail: see **Johnson v Shaffer, 64 Ohio App. 236, 28 N. E. 2d 765, 767.**

But even more importantly, I have taken into consideration the fundamental importance of bail as the judicial instrument for ensuring the liberty of the individual. In this regard, the quest for bail is a quest for liberty. The right to the liberty of the individual is next only to the individual's right to life itself. Liberty is as crucial in a free and democratic society, as breath is to life. Liberty is so precious a commodity that during the American struggle for independence some 300 years ago, one of the American independence protagonists - I believe it was Thomas Paine - summed up the situation with the following eloquent and immortal declaration - <sup>a</sup> declaration not of suicide and despair, but of defiance and triumph:

*"Give me liberty, or give me death ".*

That sums it all up. Liberty is the very essence of freedom and democracy.

In our Constitutional matrix here in Uganda, liberty looms large. The liberty of one, is the liberty of all. The liberty of any one must never be curtailed lightly, wantonly or, even worse, arbitrarily. Article 23, Clause (6) of the Constitution grants a person who is deprived of his or her liberty, the right to apply to <sup>a</sup> competent court of law for the grant of bail. The Courts from which such a person seeks refuge and solace, should be extremely wary of sending such a person away empty handed - except of course for good cause. Ours are courts of justice. Ours is the duty and privilege to jealously and courageously guard and defend the rights of all, in spite of all.

Having regard to all the above circumstances and factors, and having judiciously and meticulously weighed one factor against the other, I am disposed to grant bail to the accused. The bail that I hereby grant is of an interim nature, in the sense that it is granted pending the hearing and completion of the reference to the Constitutional Court. At that point the matter will be revisited in accordance with the disposition of the Constitutional Court.

In ordering interim bail, as I have done above, I am keenly mindful of the fact that the State, which detained the Applicant in the first place, is now the same State which seeks to maintain and even to prolong that detention through the interjection of the proposed reference to the Constitutional Court. The basic tenets of justice and all the elementary rules of fair play demand that the detainee's status in these circumstances be redressed in some form even at this preliminary juncture (i.e. in the interval pending action by the Constitutional Court). I am fortified in this premise by the judicial practice and precedent that exists elsewhere - notably in the countries of the Commonwealth of Nations. For instance, in England, the position is postulated as follows:

*" The Crown Court may admit to bail anyperson*

*(a)- '*

*(b)...*

*(d) who has applied for a case stated to the High Court; or*

*(e) who has instituted proceedings for certiorari.*

*The High Court may grant bail pending an appeal from a Divisional Court of the Queen's Bench Division to the House ofLords.*

*On an appeal to the Criminal Division of the Court ofAppeal, the Court or <sup>a</sup> single judge may admit the appellant to bail pending the determination of the appeal. Bail may also be granted pending the determination of an appeal to the House ofLords".*

- see **Jowitt's Dictionary of English Law (2nd Edn., 1977) Vol. <sup>1</sup> at p. 174.**

While the above English practice (based as it is on English statutes) is not binding on Ugandan Courts, I am nonetheless persuaded by the force and logic of that analogy.

From all the above, I hereby grant bail to the Applicant by way of an interim measure - subject to the following conditions;

- (i) The Applicant is to enter an undertaking with the Registrar (Crime) in an amount of Shs.lOm/= (ten million) (not cash), guaranteeing that he will return to Court to answer the charges preferred against him. - (ii) Each of the five sureties for the Applicant: Hon. John Ken Lukyamuzi (Member of Parliament for Rubaga South, and Secretary General of the Conservative Party of Uganda); Hon. Dr. Francis Epetait (Member of Parliament for Ngora County); Hon. Capt. Charles Byaruhanga (Member of Parliament for Kibaale County); Hon. Odonga Otto (Member of Parliament for Aruu County); and Hajji Mohamed Kibirige Mayanja (President of JEEMA Party of Uganda), will likewise enter an undertaking with the Registrar (Crime) in an amount of Shs.lOm/= (ten million) (not cash) guaranteeing that the Applicant will return to the Court to answer the charges against him. - (iii) The Applicant is to surrender to rhe Registrar (Crime) his passport or other equivalent travel document(s). - (iv) The Applicant, after his release on bail, must report to the Registrar (Crime) twice every month: on every second Wednesday and on every last Wednesday of the month, until this Court concludes the hearing of these two applications or, as the case may be, the Court orders otherwise.

### **Ordered accordingly.**

James Ogoola PRINCIPAL JUDGE 25/11/2005

# *V'*

## DELIVERED IN OPEN COURT, BEFORE:

Sam K. Njuba, Esq - Lead Counsel for the Applicant Wandera Ogalo, Esq - Counsel for the Applicant Kiyemba Mutale, Esq - Counsel for the Applicant Yusuf Nsibambi, Esq - Counsel for the Applicant Ladislaus Rwakafuzi, Esq - Counsel for the Applicant Joyce Mubiru - Counsel for the Applicant Damalie Lwanga, Assistant Director of Public Prosecutions - Lead Counsel for the Respondent Vincent Okwanga, Senior Principal State Attorney - Counsel for the Respondent

J. M. Egetu - Court Clerk

James Ogoola PRINCIPAL JUDGE 25/11/2005