Foundation for Human Rights Initiative v Attorney General (Constitutional Appeal 3 of 2009)

Supreme Court · [2018] UGSC 77 · 2018 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional appeal from the Constitutional Court's decision on a petition challenging the constitutionality of bail-related statutory provisions

Decision

Appeal partially allowed; sections 75(2)(c) and (d) of the Magistrates Courts Act declared inconsistent with Article 23(6) of the Constitution, while the challenges to sections 14(2) and 15 of the Trial on Indictments Act failed; each party to bear own costs

The full judgment

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Holding

The Supreme Court partially allowed the appeal. Reading sections 14(2) and 15 of the Trial on Indictments Act together with Articles 28, 44 and 274 of the Constitution, the Court held they are constitutional: section 14(2) requires an accused to be heard before bail is increased, and section 15's exceptional-circumstances requirement neither removes the right to apply for bail nor fetters judicial discretion (the word 'may' preserving it). However, section 75(2)(c) and (d) of the Magistrates Courts Act unconstitutionally deny bail for cattle rustling and certain Firearms Act offences that Chief Magistrates have jurisdiction to try. Grounds on automatic lapse of bail and burden of proof failed as never raised below.

Facts

The Foundation for Human Rights Initiative (FHRI), a non-governmental organisation, filed Constitutional Petition No. 20 of 2006 challenging several statutory provisions governing bail as inconsistent with the Constitution. The Constitutional Court partially allowed the petition in March 2008, striking down some provisions but upholding sections 14(2), 15(1)-(3) of the Trial on Indictments Act and section 75(2) of the Magistrates Courts Act. Section 14(2) allows a court to increase an accused's bail; section 15 requires an accused charged with serious offences to prove exceptional circumstances before bail; section 75(2) excludes specified offences from the bail jurisdiction of magistrates. Dissatisfied with the upholding of those provisions, FHRI appealed to the Supreme Court on six grounds. The petition was brought in the public interest and FHRI had withdrawn its prayer for costs at the Constitutional Court.

Issues

Whether section 14(2) of the Trial on Indictments Act, which permits a court to increase an accused person's bail, contravenes Article 28(1) of the Constitution.
Whether section 15 of the Trial on Indictments Act, which requires proof of exceptional circumstances before bail, contravenes Article 23(6) of the Constitution.
Whether section 75(2) of the Magistrates Courts Act, which excludes certain offences from the grant of bail by magistrates, contravenes Article 23(6) of the Constitution.
Whether the Constitutional Court erred in not finding that persons committed for trial at the High Court remain entitled to bail and that automatic cancellation of bail on committal is unconstitutional.
Whether the burden of proof in a bail application lies with the State.

Orders

The appeal is partially allowed.
Section 14(2) of the Trial on Indictments Act, construed with Article 274, is not inconsistent with Article 28(1) of the Constitution, an accused being entitled to a hearing before bail terms are revised.
Section 15 of the Trial on Indictments Act, construed with Article 274, is not inconsistent with Article 23(6) of the Constitution and does not fetter the court's discretion to grant bail.
Section 75(2)(c) of the Magistrates Courts Act is inconsistent with Article 23(6) of the Constitution in respect of the offence of cattle rustling.
Section 75(2)(d) of the Magistrates Courts Act is inconsistent with Article 23(6) of the Constitution in respect of manufacturing/assembling and importation/exportation of firearms and ammunition without a licence.
Each party will bear their own costs of the appeal.

Key headnotes

Constitutional Interpretation — Existing Laws — Construction under Article 274 to Conform with the Constitution

An existing law that predates the 1995 Constitution must be construed with such modifications, adaptations and qualifications as are necessary to bring it into conformity with the Constitution, and is constitutional once so read.

Bail — Increase of Bail Amount — Right to a Fair Hearing

Section 14(2) of the Trial on Indictments Act, read with Articles 28, 44 and 274 of the Constitution, requires that an accused person be present and heard before a court increases or varies the terms of his or her bail, and so does not contravene the right to a fair hearing.

Bail — Exceptional Circumstances — Right to Apply for Bail

A requirement that an accused charged with a serious offence prove exceptional circumstances before being granted bail does not take away the constitutional right to apply for bail under Article 23(6), since the right to apply remains intact and the requirement operates only when the court is considering the application.

Meaning of 'May' — Permissive Word Conferring Judicial Discretion

The use of the word 'may' rather than 'shall' in a bail provision is permissive and preserves the court's discretion to grant or decline bail; consequently a statutory list of exceptional circumstances does not fetter judicial discretion and the court may consider other exceptional circumstances.

Bail — Jurisdiction to Grant Bail Follows Jurisdiction to Try the Offence

A court that has jurisdiction to try an offence must have power to hear and determine a bail application in respect of that offence; a statutory provision that excludes a court from granting bail for offences it has jurisdiction to try is inconsistent with Article 23(6) of the Constitution.

Appeals — New Grounds Not Raised Below — Refusal to Determine

An appellate court will not fault the lower court for failing to pronounce on issues that were never pleaded, framed or canvassed before it, and will decline to determine grounds raising such matters for the first time on appeal.

Costs — Public Interest Litigation — Discretion to Decline Costs

In public interest litigation a court may, in its discretion, decline to award costs even though costs ordinarily follow the event under section 27 of the Civil Procedure Act.

Legislation cited (25)

Constitution of Uganda 1995 art.23(6)
Constitution of Uganda 1995 art.28(1)
Constitution of Uganda 1995 art.44
Constitution of Uganda 1995 art.274
Constitution of Uganda 1995 art.126
Constitution of Uganda 1995 art.257
Constitution of Uganda 1995 art.137
Constitution of Uganda 1995 art.2
Constitution of Uganda 1995 art.43(2)(c)
Trial on Indictments Act s.14(1)
Trial on Indictments Act s.14(2)
Trial on Indictments Act s.15
Trial on Indictments Act s.16
Magistrates Courts Act s.75(1)
Magistrates Courts Act s.75(2)
Magistrates Courts Act s.76
Magistrates Courts Act s.161
Penal Code Act s.123
Penal Code Act s.129
Penal Code Act s.266
Civil Procedure Act s.27
Anti-Terrorism Act 2002
Firearms Act Cap 299
Anti Corruption Act 2009 s.68
Anti Corruption Act 2009 s.69

Cases cited (10)

Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
Attorney General v George Owor (Constitutional Appeal No. 1 of 2011)
Queen v. Big Drug Mart Ltd [1985] 1 S.C.R 295
Massy v. Council of the Municipality of Yass (1922) 22 SR (NSW) 499
Johnson's Tyne Foundry Pty Ltd v. Shire of Maffra [1949] ALR 89 at 101
Daemar v. Soper [1981] 1 NZLR 66 at 70
Hon. Sam Kuteesa & 2 Others v Attorney General (Constitutional Petitions Nos 46 of 2011 & 54 of 2011)
Kwizera Eddie v Attorney General (Constitutional Appeal No. 1 of 2008)
Muwanga Kivumbi v Attorney General (Constitutional Appeal No. 6 of 2011)

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