Wakilii

Magombe v Uganda (Criminal Reference 13 of 2020)

Supreme Court · [2021] UGSC 70 · 2021 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal reference to a bench of three Justices from a single Justice's decision declining bail pending appeal
Decision
Reference upheld the existence of jurisdiction to grant bail pending appeal, but the application for bail pending appeal was declined for want of exceptional and unusual circumstances

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Holding

On a reference from a single Justice who had declined bail and declared rule 6(2) of the Supreme Court Rules unconstitutional, the full bench held that the Supreme Court does have jurisdiction to grant bail pending appeal. Although the Constitution does not expressly provide for that right, rule 6(2), made under powers conferred by Articles 79 and 150, validly provides for it and is not inconsistent with the Constitution; Arvind Patel v Uganda was rightly decided and upheld. The court found no breach of the right to be heard. However, on reconsidering the merits, it declined bail because the applicant pleaded no exceptional or unusual circumstances and, the record of proceedings being unattached, the likelihood of the appeal's success could not be gauged.

Facts

On 27 April 2015 the applicant was convicted by the High Court (Anti-Corruption Division) of theft, electronic fraud, unauthorised access and conspiracy to commit a felony, and sentenced to concurrent terms of seven and nine years' imprisonment. On appeal, the Court of Appeal acquitted him of unauthorised access and conspiracy but upheld the convictions and sentences for theft and electronic fraud. The applicant filed a notice of appeal to the Supreme Court and an application for bail pending appeal. A single Justice (Kisaakye, JSC) declined bail, holding that the Constitution provides no right to bail after conviction and declaring rule 6(2) of the Supreme Court Rules unconstitutional. Dissatisfied, the applicant brought this reference to a bench of three Justices challenging that decision.

Issues

  1. Whether the Supreme Court or an appellate court has jurisdiction to hear and determine an application for bail pending appeal.
  2. Whether the jurisdiction of the Supreme Court in criminal matters is restricted to hearing appeals.
  3. Whether rule 6(2) of the Supreme Court Rules, which empowers the court to release an appellant on bail pending appeal, is inconsistent with the Constitution.
  4. Whether the applicant was accorded a fair hearing to address the court on the constitutionality of rule 6(2) of the Supreme Court Rules.
  5. Whether the single Justice wrongly exercised her discretion in rejecting the applicant's application for bail pending appeal.

Orders

  • Grounds one, two, three and five of the reference ruled in the affirmative.
  • Ground four dismissed.
  • Application for bail pending appeal declined.

Key headnotes

Bail Pending Appeal — Jurisdiction of the Supreme Court
The Supreme Court has jurisdiction to hear and determine applications for bail pending appeal under rule 6(2) of the Supreme Court Rules, notwithstanding that the Constitution does not expressly provide for such a right.
Statutory Interpretation — Rights Not Expressly Provided in the Constitution
A right not expressly provided for in the Constitution is not thereby non-existent; Parliament may, under Articles 79 and 150, make laws and rules providing for such rights, and those provisions are not inconsistent with the Constitution merely because the right is not enumerated.
Reference — Nature of a Reference from a Single Justice
A reference under section 8(2) of the Judicature Act is in essence an appeal from the decision of a single Justice to a bench of three Justices, who may confirm, vary or reverse that decision, applying the principles governing appellate interference with discretion.
Bail Pending Appeal — Exceptional and Unusual Circumstances
An applicant for bail pending appeal, the presumption of innocence having been extinguished on conviction, must plead and prove exceptional and unusual circumstances; good character, being a first offender or a breadwinner, or offering sound sureties recede behind the seriousness of the offence and the likelihood of the appeal succeeding.
Bail Pending Appeal — Assessing Likelihood of Success of the Appeal
The likelihood of success of an appeal cannot be gauged without the record of proceedings; where an applicant fails to attach that record, the court is unable to determine whether the appeal has a likelihood of success.
Appellate Interference with Judicial Discretion
An appellate court will not reverse a discretionary decision merely because it would have decided differently; it may interfere only where the judge failed to exercise discretion, exercised it in a way no reasonable judge would, erred in principle or law, or took into account irrelevant or omitted material factors.

Legislation cited (23)

  • Judicature Act s.8(2)
  • Judicature Act s.5
  • Judicature Act s.40
  • Judicature Act s.41(1)
  • Judicature Act s.41(5)
  • Criminal Procedure Code Act s.40
  • Trial on Indictment Act s.132(a)
  • Trial on Indictment Act s.15(3)
  • Judicature (Supreme Court Rules) Directions SI 13-11 rule 6(2)(a)
  • Judicature (Supreme Court Rules) Directions SI 13-11 rule 2(1)
  • Judicature (Supreme Court Rules) Directions SI 13-11 rule 2(2)
  • Constitution of Uganda 1995 Article 132(2)
  • Constitution of Uganda 1995 Article 150(1)
  • Constitution of Uganda 1995 Article 79
  • Constitution of Uganda 1995 Article 130
  • Constitution of Uganda 1995 Article 28(3)
  • Constitution of Uganda 1995 Article 23(6)
  • Constitution of Uganda 1995 Article 23(1)(a)
  • Constitution of Uganda 1995 Article 23(7)
  • Constitution of Uganda 1995 Article 21
  • Constitution of Uganda 1995 Article 126(1)
  • Constitution of Uganda 1995 Article 2(2)
  • Computer Misuse Act 2011

Cases cited (10)

  • Paul K. Ssemogerere v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Bukenya Church Embrose v Attorney General (Constitutional Petition No. 25 of 2001)
  • Arvind Patel v Uganda (Civil Appeal No. 1 of 2003)
  • Bamutura Henry v Uganda (Miscellaneous Application No. 9 of 2019)
  • John Kashaka Muhanguzi v Uganda (Civil Appeal No. 18 of 2019)
  • Kyeyune Mitala Julius Vs. Uganda, SC. MA No. 9 of 2015
  • Kyeyune Mitala Julius v Uganda (Criminal Application No. 09 of 2016)
  • Mbogo v Shah [1968] 1 EA 93
  • Nakiwuge Racheal Muleke v Uganda (Criminal Application No. 12 of 2020)
  • Ochepa Godfrey v Uganda (Miscellaneous Application No. 07 of 2020)
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.