Wakilii

Nakiwuge v Uganda (Criminal Reference 12 of 2020)

Supreme Court · [2021] UGSC 42 · 2021 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Reference to a full bench of three Justices from a single Justice's ruling dismissing an application for bail pending appeal
Decision
Application for bail pending appeal dismissed; applicant to continue serving her sentence.

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Cited — treatment unverified cited in 12 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

On a reference from a single Justice who had dismissed bail pending appeal, the full bench held that although the 1995 Constitution does not expressly provide a right to apply for bail pending appeal, it does not prohibit it; Rule 6(2)(a) of the Supreme Court Rules validly provides that right and is not inconsistent with the Constitution. The court disagreed with the single Justice and held that Arvind Patel v Uganda was rightly decided and remains the proper position of the law. However, because the presumption of innocence is extinguished after conviction, bail pending appeal requires unusual and exceptional circumstances. Finding the applicant had not established such circumstances, the court dismissed the application.

Facts

The applicant was convicted by the High Court (Anti-Corruption Division) of embezzlement, false accounting and forgery, each with an alternative count of uttering false documents. She was sentenced to three and a half years' imprisonment on the embezzlement count and 15 months on the false accounting and forgery counts, to run concurrently, and was disqualified from holding public office for 10 years. The Court of Appeal upheld the convictions and sentences. The applicant filed a notice of appeal to the Supreme Court and applied for bail pending appeal. A single Justice (Dr. Esther Kisaakye, JSC) dismissed the application, holding that there is no constitutional provision permitting bail for a convicted person, that Arvind Patel was wrongly decided, and that Rule 6(2)(b) of the Supreme Court Rules is void for inconsistency with the Constitution. The applicant referred that decision to a full bench of three Justices, seeking to vary, discharge or reverse it.

Issues

  1. Whether the 1995 Constitution recognises or excludes a right to apply for bail pending appeal for a convicted person.
  2. Whether Rule 6(2)(a) of the Supreme Court Rules is inconsistent with the Constitution and void.
  3. Whether the single Justice erred in holding that Arvind Patel v Uganda was wrongly decided.
  4. Whether the applicant established unusual and exceptional circumstances justifying the grant of bail pending appeal.

Orders

  • Application for bail pending appeal dismissed.

Key headnotes

Constitutional Law — Bail Pending Appeal — Whether a Constitutional Right Exists
Although the 1995 Constitution does not expressly provide for a right to apply for bail pending appeal, it does not prohibit such a right; Parliament is empowered under Articles 79 and 150 to provide for rights beyond those expressly enumerated in the Constitution.
Criminal Procedure — Bail Pending Appeal — Source of the Court's Power
Rule 6(2)(a) of the Supreme Court Rules empowers the court to grant bail pending appeal and is not inconsistent with the Constitution; the right it provides must be relied on whenever such applications are made.
Statutory Interpretation — Subsidiary Legislation — Relationship to the Constitution
It is a misdirection in law to hold that rights not expressly provided for in the Constitution do not exist, or that Acts of Parliament and subsidiary legislation conferring additional rights are inconsistent with the Constitution.
Criminal Procedure — Bail Pending Appeal — Exceptional Circumstances After Conviction
Once a person is convicted the presumption of innocence under Article 28(3) is extinguished, so the grant of bail pending appeal hinges on the existence of unusual and exceptional circumstances as contemplated by section 15(3) of the Trial on Indictment Act.
Criminal Procedure — Bail Pending Appeal — Possibility of Delay
The mere possibility that an appeal may be delayed is not an unusual and exceptional circumstance justifying the grant of bail pending appeal.
Criminal Procedure — Reference Under Section 8(2) Judicature Act — Nature and Standard of Review
A reference under section 8(2) of the Judicature Act is in essence an appeal from the decision of a single Justice to a panel of three Justices, and the established principles governing appellate interference with the exercise of judicial discretion apply.
Criminal Procedure — Stare Decisis — Conditions for Bail Pending Appeal
Arvind Patel v Uganda was rightly decided and is upheld as the proper position of the law setting out the general considerations governing applications for bail pending appeal.

Legislation cited (20)

  • Judicature Act Cap.13 s.8(2)
  • Judicature Act Cap.13 s.5
  • Judicature Act Cap.13 s.40
  • Judicature Act Cap.13 s.41(1)
  • Judicature Act Cap.13 s.41(5)
  • Supreme Court Rules r.6(2)(a)
  • Supreme Court Rules r.6(2)(b)
  • Supreme Court Rules r.2(1)
  • Supreme Court Rules r.52
  • Trial on Indictment Act s.15(3)
  • Constitution of Uganda 1995 art.23(1)(a)
  • Constitution of Uganda 1995 art.23(6)(a)
  • Constitution of Uganda 1995 art.28(1)
  • Constitution of Uganda 1995 art.28(3)
  • Constitution of Uganda 1995 art.79(1)
  • Constitution of Uganda 1995 art.132(2)
  • Constitution of Uganda 1995 art.150(1)
  • Constitution of Uganda 1995 art.126(1)
  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.21

Cases cited (15)

  • Arvind Patel v Uganda (Supreme Court Criminal Appeal No. 1 of 2003)
  • Magombe Joshua v Uganda (Supreme Court Miscellaneous Application No. 11 of 2019)
  • Bireete Sarah v Uganda (Supreme Court Criminal Application No. 4 of 2016)
  • Baingana John Paul v Uganda (Supreme Court Criminal Application No. 5 of 2016)
  • Kyeyune Mitala Julius v Uganda (Supreme Court Miscellaneous Application No. 4 of 2017)
  • Simba Jean Louis v Uganda (Supreme Court Criminal Application No. 1 of 2018)
  • Kimeze Jeremiah v Uganda (Supreme Court Miscellaneous Application No. 12 of 2019)
  • Ocepa Geoffrey v Uganda (Miscellaneous Application No. 7 of 2020)
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Bamutura Henry v Uganda (Supreme Court Miscellaneous Application No. 9 of 2019)
  • Semwogerere & Others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Bukenya Church Ambrose v Attorney General (Constitutional Petition No. 26 of 2001)
  • Mbogo v Shah [1968] 1 EA 93
  • David Chandi Jamwa v Uganda (Supreme Court Miscellaneous Application No. 9 of 2018)
  • Simo v Republic [1972] EA 476
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.