Foundation for Human Rights Initiatives v Attorney General (Constitutional Petition No. 20 of 2006)

Constitutional Court · [2008] UGCC 1 · 2008 Petition Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition under Article 137 challenging the constitutionality of statutory bail provisions

Decision

Petition succeeded in part; section 16 TIA, section 76 MCA, sections 219, 231 and 248 UPDF Act and section 25(2) Police Act declared void to the extent of inconsistency, while sections 14(2) and 15(1)-(3) TIA and section 75(2) MCA were upheld

The full judgment

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Holding

The Court held that bail is not automatic: under Article 23(6)(a) the word 'entitled' creates only a right to apply for bail, and 'may' confers discretion on the court to grant or refuse it, subject to mandatory release once the prescribed remand periods under Article 23(6)(b) and (c) expire. Statutory requirements that an accused prove exceptional circumstances and satisfy the court he will not abscond are reasonable, justified conditions that do not offend Articles 20, 23 or 28. Accordingly sections 14(2) and 15(1)-(3) of the Trial on Indictments Act and section 75(2) of the Magistrates Courts Act were upheld, while section 16 TIA, section 76 MCA, sections 219, 231 and 248 UPDF Act and section 25(2) Police Act were declared void to the extent of their inconsistency.

Facts

The petitioner, the Foundation for Human Rights Initiatives, a non-governmental organisation whose objects include the protection and promotion of human rights, brought this petition in the public interest. It contended that a number of bail-related provisions in four statutes — the Trial on Indictments Act, the Magistrates Courts Act, the Uganda Peoples Defence Forces Act and the Police Act — imposed unreasonable restrictions on the rights to liberty, freedom of movement, a fair and speedy trial, the presumption of innocence and the right to bail, and were inconsistent with the Constitution. The Attorney General, sued as the statutory respondent, denied the allegations and described the petition as misconceived. At the hearing the Principal State Attorney conceded that all the impugned provisions were unconstitutional except section 14(2) of the Trial on Indictments Act and section 75(2) of the Magistrates Courts Act, which became the only contested provisions argued before the Court.

Issues

Whether sections 14(2), 15(1), 15(2), 15(3) and 16 of the Trial on Indictments Act are inconsistent with Articles 20, 23(1), 23(6), 28(1) and 28(3) of the Constitution.
Whether sections 75(2) and 76 of the Magistrates Courts Act are inconsistent with Articles 20, 23(1), 23(6), 28(1) and 28(3) of the Constitution.
Whether sections 219, 231 and 248 of the Uganda Peoples Defence Forces Act are inconsistent with Articles 20, 23(1), 23(6), 28(1) and 28(3) of the Constitution.
Whether section 25(2) of the Police Act is inconsistent with Article 23(4) of the Constitution.

Orders

Section 16 of the Trial on Indictments Act contravenes Articles 23(6), 20 and 28 of the Constitution and is null and void to the extent of inconsistency.
Section 76 of the Magistrates Courts Act is null and void to the extent of its inconsistency with Articles 20, 23(1), 23(6), 28(1) and 28(3) of the Constitution.
Sections 219, 231 and 248 of the UPDF Act are inconsistent with Articles 20, 23(6), 28(1) and 28(3) of the Constitution and null and void to the extent of inconsistency.
Section 25(2) of the Police Act is inconsistent with Articles 20, 23(4), 23(6) and 28(1) of the Constitution and null and void to the extent of inconsistency.
Sections 14(2), 15(1), 15(2) and 15(3) of the Trial on Indictments Act and section 75(2) of the Magistrates Courts Act upheld as constitutional.
No order as to costs, the petition having been brought in the public interest.

Key headnotes

Constitutional Law — Bail — Discretion of the court under Article 23(6)(a)

The word 'entitled' in Article 23(6)(a) of the Constitution creates a right to apply for bail, not a right to be granted bail, and the word 'may' confers on the court a discretion to grant or refuse bail; bail is therefore not automatic.

Constitutional Law — Bail — Mandatory release after prescribed remand period under Article 23(6)(b) and (c)

Where an accused has been remanded for the constitutionally prescribed period — sixty days for an offence triable by the High Court and a subordinate court, or one hundred and eighty days for an offence triable only by the High Court — the use of 'shall be released on bail' deprives the court of discretion to refuse bail, leaving it discretion only as to the conditions of release.

Criminal Law & Procedure — Bail — Exceptional circumstances and conditions to prevent absconding

Statutory requirements that an accused establish exceptional circumstances and satisfy the court that he or she will not abscond do not contravene Article 23(6); they merely guide the judicial exercise of discretion and constitute reasonable conditions that are acceptable and demonstrably justifiable in a free and democratic society under Article 43(2).

Statutory Interpretation — Constitution read as an integrated whole — generous and purposive interpretation

The entire Constitution must be read as an integrated whole so that no one provision destroys another, and provisions entrenching fundamental rights and freedoms must be given a generous and purposive interpretation that gives effect to the purpose and effect of the instrument.

Constitutional Law — Pre-1995 legislation — construction and adaptation under Article 274

Legislation enacted before the 1995 Constitution must, under Article 274, be construed with such modifications and adaptations as are necessary to bring it into conformity with the Constitution, and is void to the extent of any inconsistency.

Legislation cited (23)

Constitution of Uganda 1995 Article 20
Constitution of Uganda 1995 Article 23(1)
Constitution of Uganda 1995 Article 23(4)
Constitution of Uganda 1995 Article 23(6)
Constitution of Uganda 1995 Article 28(1)
Constitution of Uganda 1995 Article 28(3)
Constitution of Uganda 1995 Article 43(2)
Constitution of Uganda 1995 Article 274
Constitution (Amendment) Act 11 of 2005
Trial on Indictments Act (Cap 23) s.14(1)
Trial on Indictments Act (Cap 23) s.14(2)
Trial on Indictments Act (Cap 23) s.15(1)
Trial on Indictments Act (Cap 23) s.15(2)
Trial on Indictments Act (Cap 23) s.15(3)
Trial on Indictments Act (Cap 23) s.16
Trial on Indictments (Amendment) Act No. 9 of 1998
Magistrates Courts Act (Cap 16) s.75
Magistrates Courts Act (Cap 16) s.75(2)
Magistrates Courts Act (Cap 16) s.76
Uganda Peoples Defence Forces Act No. 7 of 2005 s.219
Uganda Peoples Defence Forces Act No. 7 of 2005 s.231
Uganda Peoples Defence Forces Act No. 7 of 2005 s.248
Police Act (Cap 303) s.25(2)

Cases cited (8)

Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
South Dakota v North Carolina, 192 US 268
THE QUEEN VS BIG DRUG MARK LTD (1996) LRC (CONST.) 332
Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
Attorney General v Jobe (1984) LRC 689
Unity Dow v Attorney General of Botswana (1992) LRC 662
Tumushabe v Attorney General (Constitutional Petition No. 6 of 2004)
Uganda (DPP) v Col. (Rtd) Dr. Kizza Besigye (Constitutional Reference No. 20 of 2005)

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