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Magombe v Uganda (Miscellaneous Application 11 of 2019)

Supreme Court · [2020] UGSC 39 · 2020 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion for bail pending the hearing and determination of a Supreme Court criminal appeal, heard by a single Justice
Decision
Application for bail pending appeal dismissed; applicant to remain in custody serving his sentence pending determination of his appeal.

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Holding

A single Justice dismissed the application, holding that the 1995 Constitution confers no right on a convicted person to apply for or be granted bail pending appeal. The presumption of innocence under Article 28(3)(a) is extinguished on conviction, and the right to apply for bail under Article 23(6)(a) applies only to persons arrested, not convicted. Rule 6(2)(a) of the Judicature (Supreme Court) Rules, which purports to permit bail pending appeal, is inconsistent with the Constitution and void under Article 2(2). The six-factor test in Arvind Patel v Uganda was wrongly decided because it overlooked the Constitution, and being a single-Justice ruling was not binding. Granting bail on grounds of delay would also breach the equality guarantee in Article 21.

Facts

On 27 April 2015 the applicant was convicted by the High Court Anti-Corruption Division of theft, electronic fraud, unauthorised access contrary to the Computer Misuse Act 2011, and conspiracy to commit a felony, and sentenced to concurrent terms of seven years on the theft, electronic fraud and conspiracy counts and nine years on the unauthorised access count. On appeal, the Court of Appeal acquitted him of unauthorised access and conspiracy but upheld his convictions and sentences for theft and electronic fraud. He filed a notice of appeal to the Supreme Court and applied for bail pending appeal, relying on Article 126(2)(e) of the Constitution and the criteria in Arvind Patel v Uganda. He asserted good character, first-offender status, that the offences did not involve personal violence, a fixed place of abode evidenced by a tenancy agreement and a Local Council letter, four sureties, and that co-convicts had been granted bail. The respondent opposed the application.

Issues

  1. Whether the 1995 Constitution confers on a person convicted of a criminal offence a right to apply for, or be granted, bail pending the hearing and determination of an appeal.
  2. Whether the Supreme Court is vested with jurisdiction under the Constitution to grant bail pending appeal to a convicted person.
  3. Whether Rule 6(2)(a) of the Judicature (Supreme Court) Rules is inconsistent with the Constitution and therefore void.
  4. Whether the conditions for bail pending appeal laid down in Arvind Patel v Uganda were correctly decided and binding on a single Justice.
  5. Whether, in any event, the applicant established grounds entitling him to bail pending appeal.

Orders

  • Application for bail pending appeal dismissed.
  • Applicant to continue serving his sentence pending the filing and determination of his appeal.

Key headnotes

Constitutional Law — Personal Liberty — Bail Pending Appeal of a Convicted Person
The 1995 Constitution confers no right on a person convicted of a criminal offence to apply for or be granted bail pending the hearing of an appeal; the right to apply for bail under Article 23(6)(a) is available only to a person arrested in respect of a criminal offence, not to one already convicted.
Constitutional Law — Presumption of Innocence — Effect of Conviction
The presumption of innocence guaranteed by Article 28(3)(a) of the Constitution is extinguished upon conviction and does not subsist while a convicted person pursues an appeal.
Constitutional Law — Supremacy of the Constitution — Voidness of Inconsistent Subsidiary Legislation
Rule 6(2)(a) of the Judicature (Supreme Court) Rules, insofar as it purports to empower the Court to grant bail pending appeal to a convicted person, is inconsistent with the Constitution and is void to the extent of that inconsistency under Article 2(2).
Criminal Procedure — Jurisdiction of the Supreme Court — Bail Pending Appeal
The Supreme Court's jurisdiction in criminal matters under Article 132(2) is confined to hearing appeals and matters incidental to their preparation, and does not extend to ordering the release on bail of a convicted person pending the determination of an appeal.
Precedent — Rulings of a Single Justice — Persuasive Not Binding
A ruling of a single Justice of the Supreme Court is not binding on another single Justice; accordingly the conditions for bail pending appeal summarised in Arvind Patel v Uganda, having overlooked the governing constitutional provisions, need not be followed.
Constitutional Law — Equality and Non-Discrimination — Bail on Grounds of Delay
Releasing a convict on bail pending appeal on the ground of anticipated delay would offend the equality and non-discrimination guarantees in Article 21 by favouring appellants of higher economic standing and allowing them to jump the queue ahead of earlier-filed appeals.

Legislation cited (19)

  • Constitution of Uganda 1995 art.2(1)
  • Constitution of Uganda 1995 art.2(2)
  • Constitution of Uganda 1995 art.20(2)
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.22(1)
  • Constitution of Uganda 1995 art.23(1)(a)
  • Constitution of Uganda 1995 art.23(6)
  • Constitution of Uganda 1995 art.28(1)
  • Constitution of Uganda 1995 art.28(3)(a)
  • Constitution of Uganda 1995 art.126(2)(b)
  • Constitution of Uganda 1995 art.126(2)(e)
  • Constitution of Uganda 1995 art.132(2)
  • Constitution of Uganda 1995 art.137
  • Judicature (Supreme Court) Rules r.6(2)(a)
  • Judicature (Supreme Court) Rules r.2(2)
  • Judicature (Supreme Court) Rules r.42
  • Judicature (Supreme Court) Rules r.43
  • Judicature Act Cap 13
  • Computer Misuse Act 2011

Cases cited (19)

  • Arvind Patel v Uganda (Criminal Application No. 1 of 2013)
  • Seggujja Danny and Another v Uganda (Miscellaneous Application No. 5 of 2019)
  • Sserunkuuma Edrisa v Uganda (Application No. 9 of 2019)
  • Imere Deo v Uganda (Criminal Application No. 2 of 2015)
  • Jamwa v Uganda (Miscellaneous Application No. 9 of 2018)
  • Serunkuuma Edrisa and 5 Others v Uganda (Criminal Appeal No. 0147 of 2015)
  • Alenyo Marks v Uganda (Criminal Application No. 5 of 2015)
  • Bireete Sarah v Uganda (Criminal Application No. 4 of 2016)
  • Baingana John Paul v Uganda (Criminal Application No. 5 of 2016)
  • Kyeyune Mitala Julius v Uganda (Miscellaneous Application No. 4 of 2017)
  • Simba Jean Louis v Uganda (Criminal Application No. 1 of 2019)
  • Kimeze Jerimiah v Uganda (Miscellaneous Application No. 12 of 2019)
  • Kyeyune Mitala Julius v Uganda (Criminal Application No. 9 of 2016)
  • Kitaka Robert Nsubuga v Uganda (Criminal Application No. 8 of 2019)
  • John Muhanguzi Kashaka v Uganda (Miscellaneous Application No. 18 of 2019)
  • Girdhar Dhanji Masarani v R (1960) E.A. 320
  • Raghbir Singh Lamba v R (1958) E.A. 337
  • Chimambhai v Republic (No. 2) [1971] E.A. 343
  • R v Akbarali Juma Kanji (Criminal Appeal No. 46 of 1946)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.