Hon. Ssewanyana and Another v Uganda (Criminal Appeal No. 294 of 2021) [2022] UGCA 181 (29 June 2022)

Full Case Text

# 5 THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA CRIMINAL APPEAL NO 0294 OF 2021 (CORAM: CHEBORION, MADRAMA, LUSWATA JJA)

- HoN. ALLAN SSEWANYANA ALOYSIUS) 1. - . HoN. SSEGTRTNYA MoHAMMED) APPELLANTS VERSUS 10 2

UGANDA) ........................ RESP0N0ENT (Appeat from ruling of Hon Justice Lawrence Tweyanze at the High Court in Masaka in CriminaI Miscetlaneous Apptication No 018 ot 2021(Arising from Criminal. Case No MSK AA.0258 ot 2O21of the Chief Magistrates Court of Masaka at Masaka)

## RULING OF COURT

## Brief introduction and background

The appel.tants apptied for bait in the High Court at Masaka. The tearned triaI Judge of the High Court dectined their apptication for reasons that he was not satisfied that the applicant wou[d not interfere with investigations and witnesses of the state or that they woutd not abscond from bait. 20

The appettants had been charged jointty with the offence of murder contrary to sections 188 & 189 of the Pena[ Code Act.

The appettants were dissatisfied with the decision of the triat Judge declining to grant them bait and appeal.ed to this court on seven grounds namety that:

- 1. The learned trial. Judge erred in taw and fact when he faited to judiciousty exercise discretion to grant baiL to the appeltants. - 2. The learned trial Judge erred rn law and fact when he hetd that the appeLl.ants were not suffering from grave itlnesses as envisaged under section 15 (3) of the TriaI on lndictment Act.

- 3. The learned triat Judge erred in law and fact when he hetd that the charge of murder and attempted murder contrary to sections 188, 189 and 2004 (a) of the Penal Code Act and terrorism and aiding and abetting terrorism vide Criminal Case No MSK 00 - 201 11of 2021'. Uganda versus Serwadda Mike, Muwonge Jude, Wamata Buto, Mugera John, Hon. Al.tan Ssewanyana Atoysius and Hon. Ssegirinya Muhammad stands alone from the charge of murder contrary to sections 188 and 189 of the Penal Code Act vide Criminal Case No MSK AA 0258 OF 2021: Uganda versus Hon. Attan Atoysius and Hon. Ssegirinya Muhammad. - 4. The learned trial. Judge erred in law and fact when he hetd that the appetl.ants were at ftight risk because they were charged with an offence. - 5. The [earned triat Judge erred in law and fact when he hetd that the appettants being members of Partiament are so inftuentiaI as to affect investigations and or state witnesses. - 6. The learned triat Judge erred in law and fact when he hetd that there is a iiketihood of the appeltant's absconding from baiI because of a muttipl.icity of charges. 25 - 7. The learned trial Judge erred in law and fact when he fail.ed to evatuate the evidence on record thereby causing a miscarriage of justice to the appellants.

When the matter came for hearing on 22nd June 2022, the appeLlants were represented by learned counse[ Mr. Ladisl.aus Rwakafuuzi who appeared jointty with learned Counsel and Lord Mayor KampaLa City Mr. Erias Lukwago assisted by Learned Counsel Ms Shamim Malende. 0n the other hand, learned counsel Mr Joseph Kyomuhendo, Chief State Attorney and learned counseI Mr Richard Birivumbuka, Chief State Attorney appeared for

### 5 the respondents.

Before the matter coutd proceed on the merits, learned counsel Mr Birivumbuka objected to the appeaI on the ground that it is incompetent because it is not grounded in [aw. He submitted that under Articte 13a (2) of the Constitution, an appeat against a decision concerning baiI does not Iie to the Court of Appeat because an appeal is a creature of statute. He contended that under section 132 (2) of the Trial. on lndictment Act, an appeat can onty Lie to the Court of AppeaL from the High Court where there has been a conviction and sentence. ln the premises he contended that the Court of Appeat has no jurisdiction to hear an appeal from a decision in a bait apptication. He rel.ied on Shah v Attorney General (197'l) EA 50 for the proposition that an appeat is a creature of statute. He submitted that the decision dectining bait apptication was an intertocutory decision as there was no conviction or sentence and therefore no right of appeal under section 132 of the Trial. on lndictment Act. He emphasised that the appetl.ants were not convicted nor had they been sentenced. ln the premises he submitted that the appet[ants had no right of appeal to the Court of Appeal. and the remedy was to reappLy for bait. He retied on the decision of the Supreme Court in Chartes Harry Twagira v Uganda; Criminal. Appeat No 027 of 2005. lt was hel.d in that appeaI that no appeal. can [ie from an interlocutory order untess the order is a conviction or sentence. Counsel atso retied on Makumbi Moses v Uganda; Criminal Appeat No 202 of 2020 arising from Criminal. Appl,ication CP 177 of 2O2O where the Court of Appeal. hel.d that the right of appeaI arises in respect of conviction and sentence. No appeal. arises from a decision made in an apptication for bail. and the appeaI was dismissed. 10

ln repLy, Mr. Rwakafuuzi contested the submission that a bai[ apptication is of an intertocutory nature. ln his view, it is a substantive right that is recognised in the Constitution. He contended that the 1967 Constitution is different from the 1995 Constitution and the probtem is that this new Constitution of 1995 is being interpreted using jurisprudence from the otd Constitution of 1967. He submitted that the right to bait is enforceabte under

- 5 Articte 50 of the Constitution of the Repubtic of Uganda 1995 by a competent court which is the High Court. Further that under section 16 (1) (c) of the Human Rights (Enforcement) Act, 2019 there is a right of appeal from the decision of the High Court in the enforcement of fundamental rights and freedoms. He considered the judgment in Makumbi Moses v Uganda (supra) - to be one that was decided per incuriam in Light of the cited provisions of the [aw. He submitted that the appel.l.ants were rightly before the Court of Appeat because they had been denied bait. ln the atternative, the appettants had been granted bait by another Judge of coordinate jurisdiction and had the learned triat Judge perused the decision of his sister Judge, he woutd have granted bait. 10 15

Mr. Rwakafuuzi contended that the appeltants had been kidnapped or abducted immediatel.y after they had been reteased on bail, by security forces and taken back to prison whereupon they were brought and charged before another Judge where they were denied bail..

- 20 ln further repty to the preliminary objection, learned counsel Lord Mayor Mr Erias Lukwago submitted that the Court of Appeat has jurisdiction to entertain this appeat. He cited Articte 13L (2) of the Constitution of the Repubtic of Uganda and submitted that it created the right of appeat. That this Articte provides that an appeal lies from decisions of the High Court as - are prescribed by taw. The retevant law inctudes the Criminal Procedure Code Act and section 35 and 36 thereof which confer a right of appeat. He contended that section 35 of the Criminal. Procedure Code Act deaLs with appeats from sentences and convictions or acquittats while section 36 deats with appeal.s from other orders. Further he castigated the respondents 25 - counsel for not having read section 133 of the Trial on lndictment Act which he contends attows an appeal from a special finding. ln other words, he contended that an appeaI does not only arise from a sentence, conviction or acquittal., but atso arises from speciaI findings. 30

Further, Mr Lukwago submitted that proceedings with regard to bail are a special proceeding which are instituted for enforcement of fundamental rights. He contended that the appetl.ants bait apptication was a pre-trial 35

5 stage proceeding, and as such, a decision by the judge coutd be subject to appeat. He submitted that the appettants who had eartier on been released by the High Court were immediatety rearrested. That apart from the present decision on appeat, the appetlants had fited other fresh applications for baiL which the High Court dectined to entertain. CounseI Lukwago then beseeched this court not to tock the door to the cause of justice. He in addition sought our guidance on severa[ matters including where a ludge of the High Court had granted bai[, another judge of coordinate jurisdiction overturned the decision on bail to the same persons. He took exception to the fact that the appeltants futfiLted the bait terms by paying Uganda shittings 20,000,000/= each after which the State amended the charge sheet to add the charge of terrorism, and had them remanded. 10 15

ln rejoinder learned counsel Mr Joseph Kyomuhendo submitted that the appel.tants were detained on two different charges, The first charge invotved murder and terrorism. The second charge invotved a charge of murder onty

with respect to different accused persons and the ptaces for commission of the offences were different. Mr. Kyomuhendo further submitted that the learned triat judge exercised his discretion judicial.ty. According to him, the appettants remedy under the Human Rights (Enforcement) Act, 2019 under which they can petition the High Court under Articte 50 of the Constitution was on succeeding to have the charges nul.tified. The appettants instead 20 25

circumvented that procedure and instead appeated to the Court of Appeal..

Counsel further drew our attention to the fact that this matter was the subject of a muttipticity of proceedings since it is atso before the ConstitutionaI Court,

- 30 Further the respondent's counseI submitted that the Court of Appeat has no jurisdiction because it Lacks the tegat basis. Section 133 of the Trial on lndictment Act does not appty because section 132 (2) of the Trial on lndictment Act prevaits over the CriminaI Procedure Act which was an otder statute. Further sections 35 and 36 of the Criminat Procedure Code Act are - not in harmony with section 132 and 133 of the Trial on lndictment Act. Mr. Kyomuhendo further submitted that in the appticant's matter, there was no 35

- 5 speciaI finding and therefore section 133 of the TIA was inappticabte. He contended that the grounds to be considered before bait is granted are provided for under section 15 and 16 of the TlA. He clarified that the appticants were not abducted but were rearrested in respect of another offence and were therefore in Lawf uL custody. - Upon hearing submissions of counse[, we reserved our ruting for Wednesday 29th of June 2022. 10

## Decision of Court.

- We have carefutty considered the submissions of counset, the precedents they have cited, the relevant statutory law and the Constitution. The gist of the prel.iminary objections is that this court has no jurisdiction to hear the appeat. Conversety, the appeltants contend that this court has jurisdiction to entertain an appeaI from a decision dectining to grant bail. by the High Court, pending trial for a capitaI offence. 15 - The facts upon which the pretiminary objection is based are not in dispute. The appticant's application for baiI in the High Court was dectined by the learned triatJudge in a rul.ing dated 25rh of October 2021. The appettants had apptied for bait by notice of motion in the High Court at Masaka where they had been jointty charged with the offence of murder contrary to sections '188 & 189 of the Penal. Code Act. We do not need to give the particulars of the charge as the matter before the court is for consideration of a point of law as to whether this court has appettate jurisdiction from the decision of the High Court refusing to grant bait in the circumstances of this appeat. 20 25

The thrust of the respondent's objection to the appeat is that no appea[ [ies from an intertocutory order of the High Court, made pending or during the trial. of the accused. The contention is that under section 132 of the TriaI on lndictment Act, an appeal onLy lies from a final order of a conviction, acquittal. or sentence of the High Court to the Court of Appeat. 0n the other hand, the appettant's counsel contended that bait is a speciaI proceeding 30

which stands a[one and an appeal' [ies from it. Further, a decision on baiI 35

5 10 may as wetl be founded on sections 133 of the Trial on lndictment Act or 36 of the Criminal. Procedure Code Act. The appeLl.ants counseI further contended that sectron 35 of the Criminal Procedure Code Act does not prectude or exclude an appeal from any other order other than a conviction, sentence, or acquittat. Further, that the decision in an appl.ication for baiI is a decision made pursuant to ArticLe 50 of the Constitution of the Repubtic of Uganda for the enforcement of fundamentat rights and freedoms which decision rs appeatabl.e under section '16 of the Human Rights Enforcement Act, 2019.

15 20 The proposition that appettate jurisdiction onty springs from statute was considered by the East African Court of Appeat in Attorney General v Shah (No. A) [1971] EA, 50. In that judgment, there was an appeaI from a decision of the High Court where the Hrgh Court of Uganda issued an order of mandamus against officers of government. The Attorney GeneraI was aggrieved and appealed against the order of mandamus. When the appeal was catled for hearing, the respondent objected to hearing it on the ground that the East African Court of Appeat had no jurrsdiction to hear the appeat. The East African Court of Appeal. in a decision detivered by Spry Ag P hetd inter aliathal'.

It has long been established and we think there is ample authority for saying that appellate jurisdiction springs only from statute. There is no such thing as inherent appellate jurisdiction.

ln estabLishing what jurisdiction the court had, the court considered the fact that the appeLl.ate jurisdiction of the East African Court of Appeal was derived from Artic[e 89 of the Constitution of the Repubtic of Uganda 1967 (repeated) and the Judicature Act 1967 (repeated) which provided that the East African Court of Appeal. had onty such jurisdiction as had been conferred on it by Partiament. Despite the repeaI of the 1967 Constitution of the Repubtic of Uganda, there is a simitar provision under Articte 134 (2) of the Constitution which provides that.

#### 35 (2) An appeal shall he to the Court of Appeal from such decisrons of the High Court as may be prescribed by law.

It is clear from Articte 13t+ (2) of the Constitution that an appeat Iies to the

5 Court of Appeat from such decisions of the High Court as are prescribed by [aw. The question then is which laws prescribe appeals from decisions of the High Court in crimina[ proceedings? The provisions of Articl.e 134 (2) ot the Constitution is repeated under section 10 of the Judicature Act Cap 13 [aws of Uganda which provides that:

#### An appeal shall lie to the Court of Appeal from decisions of the High Court prescribed by the Constitution, this Act or any other law. 10

General.l.y, Articte 134 of the Constitution confers jurisdiction on the Court of Appeat to hear appeal.s from decisions of the High Court prescribed by Partiament by Law. Section 10 of the Judicature Act does not exactly prescribe which [aws prescribe the appel.l.ate jurisdiction but incorporates the provisions of Articl.e 134 (2) of the Constitution that Partiament shat[ prescribe which decisions are appeatabte. lt would therefore be necessary to estabtish the specific Law which confers appeltate jurisdiction on the Court of Appeat from decisions of the High Court in criminal proceedings. 15

We were referred to sections 35 and 36 of the Criminal Code Procedure Act cap 116. We have atso considered section 34 of the Criminat Procedure Code Act. Suffice it to note that section 34 of the CriminaL Procedure Code Act provides for powers of the appel.l.ate court from convictions. This is foltowed by section 35 of the Criminal. Procedure Code Act which deats with powers on appeal from acquittaLs and provides that: 20 25

### 35. Powers of appellate court on appeals from acquittals.

The appeltate court may, on an appeal from an acquittal or dismissal, enter such decision or judgment on the matter as may be authorrsed by law and make such order or orders as may be necessary.

- Cl.earl.y the powers of the Court of Appeat under sections 34 and 35 of the Criminat Procedure Code Act onty arise where there has been a conviction or acquittal respectivety. The headnote of section 35 ctearty suggests that it deats with powers of the appetlate court in an appeaI from an acquittat. Under that section the words acquittaL is used conjunctrvely with the order 30 - of dismissaI suggesting that it onl.y deal.s with an appeaI arising from the acquittal of the accused or the dismissal of the prosecution proceedings. 35

5 Prosecution proceedings may be dismissed for want of prosecution. lt fottows that a conviction, acquittat or dismissaI are finaI orders terminating proceedings in the triat court. Thus, the powers of the court pursuant to the finaI orders of conviction, acquittaI or dismissaI are corottary powers based on the right of appeaI foLtowing the conviction, acquittaI or dismissat. The sections under review give the powers of this court on appeal from a conviction, acquittat or dismissal to make such decision or issue such Judgement and make such orders as may be necessary as authorised by [aw. Further, section 36 of the Criminal. Procedure Code Act provides that: 10

### 35. Powers ofappellate court on appeals from otherorders.

The appellate court may on any appeal from any order other than a conviction, acquittal or drsmissal alter or reverse the order.

Again, section 36 of the Criminal. Procedure Code Act, makes it ctear that the preceding sections deatt with appeats from conviction, acquittaI or dismissat. lt provrdes for the powers of the appel.tate court on any appeat from any order other than a conviction, acquittaI or dismissat. What other orders are envisaged? This is not stated in the section itsetf . Are they orders made in the course of the proceedings which resutted in a conviction, acquittaI or dismissat? The question is therefore whether a decision dectining baiL is such other order. We shatL revert to this question presentty after considering the provisions of the TriaI on lndictment Act and particu[arty sections 132 and 133 thereof which provide in respect of section 132 that: 20 t5

### 132. Appeals to the Court of Appeal from the High Court.

(1) Subject to this section-

(a) an accused person may appeal to the Court of Appeal from a conviction and sentence by the High Court in the exercise of its original lurisdiction, as of right on a matter of law, fact or mixed law and fact,' 30

> (b) an accused person may, with leave of the Court of Appeal, appeal to the Court of Appeal against the sentence alone imposed by the High Court, other than a sentence fixed by law,'

5 (c) where the High Court has, in the exercise of its original jurisdrctton, acquitted an accused person, the Director of Public Prosecutrons may appeal to the Court of Appeal as of right on a matter of law, fact or mixed law and fact, and the Court of Appeal may-

(d) confrrm, vary or reverse the conviction and sentence,'

(e) in the case of an appeal against the sentence alone, confrrm or vary the sentence; or 10

(f) confrrm or reverse the acquittal of the accused person.

(2) Ll/here the Court ofAppeal reverses an acquittal under subsection (1), it shall order the accused person to be convicted and sentenced according to law.

(3) No appeal shall be allowed in the case of any person who has pleaded guilty in his or her trial by the chief magrstrate or magrstrate grade / or on appeal to the Hrgh Court and has been convicted on the plea, except as to the legality of the plea or to the extent or legality of the sentence.

(4) Except rn a case where the appellant has been sentenced to death, a Judge of the High Court or the Court of Appeal may, rn his or rts discretion, in any case in whrch an appeal to the Court of Appeal is lodged under thrs sectron, grant bail, pending the hearing and determination of the appeal.

(5) Section 40 of the Criminal Procedure Code Act other than subsection (2) of that section shall apply to a convicted appellant appealing under this section.

We have carefutty considered section 132 of the Trial on lndictment Act. lt ctearty provides for appeats against conviction, sentence or acquittats and is not in conftict with section 34 and 35 of the CriminaI Procedure Act. The submissions of the appettants' counsel conceded this fact as this section is ctear. The question then arises from section 36 of the Criminal Procedure Code Act which provides for appeals from other orders as wetl as section 133 of the Trial on lndictment Act. We have carefulty considered section ]33 of the Triat on lndictment Act and find that it deal.s with appeals against 30 35

speciaI findings. lt further defines a speciaI finding. lt means a finding in retation to diminished responsibitity on account of insanity under section

194 (1) of the Penal Code Act and section 48 (1) of the TIA. For emphasis $\overline{5}$ section 133 of the Trial on Indictment Act provides that:

## 133. Appeal against special finding.

(1) A person in whose case a special finding has been made may appeal against the finding to the Court of Appeal on a question of law or of fact or of mixed law and fact, and the Court of Appeal shall allow the appeal if it thinks that the special finding should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that it should be set aside on the ground of a wrong decision on any question of law if the decision has in fact caused a miscarriage of justice, or on any other ground if the court is satisfied that there has been a miscarriage of justice, and in any other case shall dismiss the appeal; but the Court of Appeal shall, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers no substantial miscarriage of justice has actually occurred

(2) Where, apart from the provisions of this subsection—

(a) an appeal against a special finding would fall to be allowed; and

(b) none of the grounds for allowing it relates to the question of the insanity of the appellant, the Court of Appeal may dismiss the appeal if it is of the opinion that, but for the insanity of the appellant, the proper verdict would have been that he or she was quilty of an offence other than the offence for which he or she was indicted.

(3) Where, in accordance with the provisions of this section, an appeal against a special finding is allowed—

(a) if the ground, or one of the grounds, for allowing the appeal is that the finding of the High Court as to the insanity of the appellant ought not to stand and the Court of Appeal is of opinion that the proper verdict would have been that he or she was quilty of an offence (whether the offence for which he or she was indicted or any other offence of which the High Court could have found him or her guilty), the Court of Appeal shall substitute for the special finding a verdict of quilty of that offence, and shall have the like powers of punishing or otherwise dealing with the appellant, and other powers, as the High

Court would have had if it had come to the substituted verdict:

(b) in any other case, the Court of Appeal shall substitute for the verdict of the High Court a verdict of acquittal.

(4) The term of any sentence passed by the Court of Appeal in the exercise of the powers conferred by subsection (3) shall, unless the court otherwise directs, begin to run from the time when it would have begun to run if passed in the proceedings in the High Court.

(5) In this section—

(a) "insanity" includes diminished responsibility defined in section 194 of the Penal Code Act:

(b) "special finding" means a special finding made under—

(i) section 48(1); or

(ii) section 194(1) of the Penal Code Act.

Clearly a special finding under section 48 (1) of the Trial on Indictment Act is the finding of not guilty by reason of insanity by the High Court. Secondly, section 194 (1) of the Penal Code Act provides that where a person is found 20 guilty of murder or being a party to the murder of another and such person was suffering from abnormality of mind, the court would make a special finding to the effect that the accused was guilty of murder but with diminished responsibility. For emphasis section 194 (1) of the Penal Code Act provides that: 25

## 194. Diminished responsibility.

(1) Where a person is found quilty of the murder or of being a party to the murder of another, and the court is satisfied that he or she was suffering from such abnormality of mind, whether arising from a condition of arrested or retarded development of mind, or any inherent causes or induced by disease or injury, as substantially impaired his or her mental responsibility for his or her acts and omissions in doing or being a party to the murder, the court shall make a special finding to the effect that the accused was quilty of murder but with diminished responsibility.

(2) On a charge of murder, it shall be for the defence to prove that the

$\mathsf{S}$

5 person charged was sufferrng from such abnormality of mind as is mentioned in subsection (/).

> (3) Where a special frnding is made under subsection (1), the court shall not sentence the person convrcted to death but shall order hrm or her to be detained in safe custody; and section /05 of the Trial on lndictments Act shall apply as if the order had been made under that section.

> (4) The fact that one party to a murder is by virtue of this section not tiable to be sentenced to death shall not affect the question whether any other party to it shall be sentenced to death.

Therefore, we do not accept the submissions of the appettant's counsel that a speciaI finding inctudes the refusal of bail. by the High Court. Further under section 36 of the Crimina[ Procedure Code Act, appeats from other orders have to be read in harmony with the specific provisions of the Trial. on lndrctment Act because they do attow appeats f rom other orders specificatty. Those orders inctude, appeats from a speciaI finding under section 48 of the TriaI on lndictment Act, appeal's against an order of costs under section 125 (3) of the TriaI on Indictment Act and appeats against an order of compensation issued by the High Court under section 126 (4) of the Trial on lndictment Act among others. Under atl those sections, specific provision is made attowing appeals. lt fottows then that the Legislature intended any right of appeal to be expressly provided for. 15 20 25

The rights of appeal. from the above orders are expressty provided for under the TriaI on lndictment Act. However, the provisions deating with baiI under sections 1l+1o21 of the Trial. on lndictment Act do not expressty provide for any right of appeal against an order of ref usal of bail. under section ]5.

We therefore come to the conctusion that the Trial on lndictment Act which is a later Act than the Criminal. Procedure Code Act, atlows for appeats against acquittats or dismissats, conviction and sentence and any other orders such as speciaI orders, and other orders specificatty provided for as orders from which an appeal lies from a decision of the High Court. We

further came to the conctusion that it is unnecessary to ctassify a right of

- 5 appeat on the basis of whether the order is an intertocutory order or a f inal order untess the statute says so. lt is an entrenched principte of law that an appeal is a creature of statute. Where the statute confers a right of appeat, it woutd not matter whether it is from an intertocutory order or a f inal order. The right is conferred by statute which shoutd speak for itsetf. - 10 We now turn our attention to the provisions of section 16 of the Human Rights (Enforcement) Act,2019. Mr. Rwakafuuzi submitted that an apptication for baiI is an apptication for enforcement of fundamental, rights and freedoms under Articte 50 of the Constitution of the Republ.ic of Uganda. The right to appty for bail is a recognised right under Articte 23 of the Constitution which deal.s with the right to Liberty. lt is provided underArticle 23 (6) of the Constitution that: 15

(6) Where a person is arrested in respect of a criminal offence-

(a) the person rs entitled to apply to the court to be released on barl, and the court may grant that person bail on such condrtions as the court considers reasonable,-

(b) in the case of an offence which is triable by the High Court as well as by a subordinate court, the person shall be released on bail on such conditions as the court consrders reasonable, if that person has been remanded in custody in respect of the offence before trial for one hundred and twenty days,'

(c) in the case of an offence triable only by the Hrgh Court, the person shall be released on bail on such conditions as the court considers reasonable, rf the person has been remanded in custody for three hundred and sixty days before the case is committed to the Hrgh Court.

Articte 23 (5) (a) of the Constitution attows a person detained on a criminal charge to appty for bail. whereupon the court may grant the bait on such conditions as the court may deem reasonabte. This has to be considered together with the section i5 of the TriaI on lndictment Act which gives some

of the conditions to be considered before granting or declining to grant bail.. The Constitution therefore provides for enforcement of the right to Liberty 35

- 5 underArticle 23 (6) of the Constitution and the matter does not necessari[y fatl under Article 50 of the Constrtution which deal,s with enforcement by a competent court in cases of breaches or threats of breaches to rights under Chapter 4 of the Constitution. The Human Rights (Enforcement) Act, 2019 deats with enforcement of fundamentat rights and freedoms where there has been an rnfrrngement of a fundamental right of freedom provided for in the Constitution. lt provides under section 1 (2) that the Act appties to enforcement of human rights by a competent court. Section 2 defines an app[ication as: 10 - ... an apphcation to a competent court under Article 50 of the Constitution for redress rn relatron to the fundamental rights and freedoms guaranteed under Articles 20 to 45 of the Constitution.

It is in addition provided in Section 3 (1) of the same Act that a person or organisation who claims that the fundamental or other right or freedom guaranteed under the Constitution has been infringed or threatened may;

... without prejudice to any other action with respect to the same matter that is lawfully available, apply for redress to a competent court in accordance with this Act. 20

CLearl.y, even if there is any other remedy avaiLabte such as a civiI suit or other proceedings such as an application for bai[, an apptication may be made to a competent court for enforcement of a fundamenta[ right of freedom where such rights have been infringed or threatened.

An apptication to the High Court under section 4 is to be in the form prescribed by regutations. Rute 7 of the Judicature (FundamentaL and Other Human Rights and Freedoms) (Enforcement Procedure) Rul.es, 2019 prescribes the procedure to be by notice of motion in accordance with the form prescribed in the schedute. Secondty, ruLe 8 thereof provides that the motion under the rutes shatl specrfy the right infringed or threatened to be infringed. lt shatl. provide for the provision of the Constitution viotated or threatened to be vatidated, the category of persons affected, the grounds of the appl.ication and the retief or retiefs sought. Redress sought presupposes that the right was infringed, viotated or threatened. The redress is the 30 35

5 redress ordered to vindicate the viotation of a right or freedom or a threat to do so.

10 Suffice it to note that the appel.l.ant's apptication in the High Court was an apptication for bait. We are that that in an indirect way the applicants apptied for enforcement of fundamentaI right to bait but not on an altegation that their fundamentaI rights and freedoms had been infringed or was threatened with infringement in relation to the right to baiI underArticl.e 23 (6) of the Constitution. lt was therefore not an apptication envisaged under the Human Rights (Enforcement) Act, 2019. Furthermore, section 16 of the Act which confers the right of appeal. from a decision of a competent court deals with a decision made with regard to an apptication for redress to obtain an appropriate relief followrng viotation or threats of violation of fundamentaI rights and freedoms. lt does not deaI with an appl.ication for bait, which apptication deats not with infringement but with the exercise of any jurisdiction to grant bail. and assert the right. For emphasis the appLicants who are now the appeltants appUed under Articte 23 (6) (a) of the Constitution, section 14 (1) of the Triat on lndictment Act and rute 2 of the Criminal Procedure (Apptication) Rutes S.l - i for their retease on bail "pending the hearing of crrminal Case number...". lt was not an apptication for the enforcement of fundamentat rights and freedoms per sewhere it is 15 20

necessary to all.ege that such a right i.e. the right to bait had been infrrnged or threatened with inf ringement.

We therefore find that section 16 of the Human Rights (Enforcement) Act, 2019 onty appties to apptications atteging infringement or threatened infringement of fundamentat rights and freedoms and pursuant to an appLication to a competent court for the enforcement of the infringed or threatened rights and freedoms where a party aggrieved by a decision of a competent court desires to appeat. lt is inappLicabl.e to applications for bail. in the ordinary course of a criminal triat proceeding.

We have further considered the authorities cited by counset. ln Charles Harry Twagira vs Uganda; Supreme Court Criminat Appeat No 027 of 2003 the Supreme Court considered an intertocutory decision of the High Court 5 pursuant an appeal against a ru[ing of the Chief Magistrates Court. The Supreme Court consid ered inter aha section 20L (1) of the Magistrates Court Act on the question of whether it al.towed an appeaI against an interlocutory order in the triaI by the Chief Magistrate. lt was hetd that:

With due respect to learned counsel, we think that he stretched the import of a fair trial to unreasonable limits. Accepting his reasoning would make it practically impossible for trial courts to finrsh any criminal trial in reasonable time. ln such a situatton, it is conceivable for an accused to launch appeals agarnst every rnterlocutory order made during the trial which he or she perceives it (even incorrectly) to be wrong and thereby render a trial prolonged on frivolous points by appealing on every point of objection. This would unduly undermine procedures, effective trrals and would open the gates to abuse of the process of court and the due administration of justice.

Whil.e this is a general provision as to the right of appeal. from interlocutory orders, we have atready found that sections 132 and 133 of the Tria[ on lndictment Act, enabte powers of court from other orders specifical.ty atlowed by the Trial. on lndictment Act but not with regard to bait which is not provided for. 20

We have f urther considered the decision of this court in Makumbi Moses v Uganda; Supreme Court Criminat Appeat No 068 of 2021. There was an appeal against the decision of the tria[ Judge cancetling bail.. At the hearing of the appeat, the respondent objected to the appeal on the ground that the Court of AppeaL had no jurisdiction to hear an appea[ against the decision cancelting bail.. The court considered among other things the right of appeaL to the High Court under section 132 of the Trial on lndictment Act and found that: 25 30

> The operative words from the above provrsion dre "... conviction and sentence by the High Court". Section /32 (/) (a) of the TIA above is crystal clear that the only rrght of appeal conferred upon an accused person is in respect of a conviction and sentence by the High Court in the exercise of its original jurisdiction. A conviction and sentence presuppose that there has been a fult trral by the High Court and a final order made.

## 5 No right of appeal is conferred upon an accused person aggrieved by the High Court order relating to bail or any other inteilocutory order in criminal matters.

The Court of Appeat found that the decision of the Supreme Court in Chartes Harry Twagira v Uganda (supra) is binding. The Court of Appeal al.so considered section 36 of the Criminal. Procedure Code Act and found that it comes into ptay only after an appeal is property before the court. They found that it was not a foundation for a right of appeal against an inter[ocutory matter. 10

ln the premises, we find that the decision of the Supreme Court in Chartes HarryTwagira v Uganda (supra) though binding on us, was not exactty on the same issues as in this court where we are interaliarequired to consider section 16 of the Human Rights (Enforcement) Act 2019. Secondty the decision of the Court of Appeat in Makumbi Moses v Uganda (supra) is that of a court with the same jurisdiction and is brnding on us and we may onty 15

depart from it a few grounds if for instance we find that it was decided per incuriam or contrary to the decision of the Supreme Court or another [ater decision of this court. We agree with it in tight of our interpretation of sections 132, 133 of the TIA as wetl as sections 34, 35 and 36 of the Criminal Procedure Code Act. We onty emphasize that an appeaI is a creature of statute. 20

We agree with the decision of the High Court of Tanzania in Desai v Warsama [1967] 1 EA 351 where Hamlyn J noted that:

lt is well-established law that a judgment of a court without jurisdiction is a nullity and I Halsbury 351 sets out the proposition

"Where a court takes it upon itself to exercise a jurisdiction which rt does not possess, its decision dmounts to nothing."

We find that proceeding in this matter to hear the appeal woutd be without jurisdiction and woutd amount to nothing. We accordingty sustain the pretiminary objection to the appeal. on the ground according to sections '132, 133 of the Trial on lndictment Act, sections 34, 35 and 36 of the CriminaL

5 Procedure Code Act, section 10 of the Judicature Act and Articte 134 (2) ot the Constitution, the Court of Appeat has no jurisdiction to hear the appeat. The appeLl.ant is not precLuded from fottowing any provisions of the Human Rights (Enforcement) Act, 2019 where it is appticabte.

Thus our decision is that the appea[ before us is incompetent.

Atthough we have found this appeat incompetent, we are concerned about some of the comptaints raised by the appetl.ants. They stated that they have been on remand for nine months without triat. That they have fil.ed four applications for bail. and onty two have been conctuded. They contend that no reasons have been given to exptain why the other two have not been fixed and heard. The appeLtants are members of Partiament who have civic duties and are representatives of the peopl.e, thus their fate shouLd not be 10 15

At the hearing of this appeat, the representatives of the DPP stated that they were ready to prosecute the appeltants. Therefore, it is incumbent upon the

High Court to ensure that the trial of the appettants begins and is expeditiousty concluded so as to meet their human and constitutional. rights. 20

We therefore direct the Registrar of this Court to ensure that att fil.es in respect of the appettants are pl.aced before the PrincipaL Judge, to ensure that the trial of the appeltants begins and is expeditiousl.y conctuded.

That said, the appeal before us is incompetent, and we accordingl.y strike it out with no order as to costs. 25

Dated at Kampala the 29th day of June 2022

in doubt.

borion Barishaki Justice of Appeat

mi. $\overline{6}$

$\overline{a}$

Christopher Madrama Justice of Appeal $\overline{ }$

Eva K Luswata Justice of Appeal

$\mathsf{S}$