Wakilii

Col. (Rtd.) Dr. Kiiza Besigye v Uganda (Criminal Misc. Application No. 228 of 2005)

Court of Appeal · [2005] UGCA 100 · 2005 Application Granted — Interim Bail AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated applications for bail pending trial on treason and rape charges, brought before the High Court
Decision
Interim bail granted on conditions; constitutional question referred to the Constitutional Court pending which the matter will be revisited

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Principal Judge held that where a party requests referral of a constitutional interpretation question, referral to the Constitutional Court under Article 137(5)(b) is mandatory and the referring court has no discretion. Since the prosecution requested referral of the question whether the Constitution confers a right to bail or merely a right to apply for bail, the court referred that question. Pending the reference, and having weighed the gravity of the charges against the applicant's liberty, fixed abode, clean record and sufficient sureties, the court granted interim bail on conditions to secure his subsequent appearance.

Outcome

Interim bail granted on conditions; constitutional question referred to the Constitutional Court pending which the matter will be revisited

Facts

The applicant, Dr. Kiiza Besigye, was facing two sets of criminal charges — treason (and misprison of treason) and rape — and sought bail under the Court's discretionary authority and the Constitution. Two applications were consolidated for hearing. The applicant contended bail was a constitutional right granted in the Court's discretion. The prosecution challenged this, noting inconsistent High Court decisions on whether bail is an automatic right under the Constitution or governed by the pre-1995 Trial on Indictments Act, and expressly requested referral of the constitutional question to the Constitutional Court. The applicant had a fixed place of abode in Rukungiri and Luzira, no prior imprisonment record, had never jumped bail, and proposed five substantial sureties. Counsel also emphasised the applicant's political leadership and candidacy for the presidency, with a tight election timeline.

Issues

  1. Whether the Constitution confers a right to bail or only a right to apply for bail.
  2. Whether the bail provisions of the Trial on Indictments Act remain constitutional in light of Article 23(6) of the Constitution.
  3. Whether the constitutional question raised must be referred to the Constitutional Court under Article 137(5)(b).
  4. Whether the applicant should be granted bail pending the reference to the Constitutional Court.

Orders

  • The constitutional question of interpretation of Article 23(6) referred to the Constitutional Court under Article 137(5)(b).
  • Interim bail granted to the applicant pending completion of the reference to the Constitutional Court.
  • Applicant to enter a non-cash undertaking of Shs.10,000,000 with the Registrar (Crime).
  • Each of the five sureties to enter a non-cash undertaking of Shs.10,000,000.
  • Applicant to surrender his passport or equivalent travel documents.
  • Applicant to report to the Registrar (Crime) twice monthly, on every second and last Wednesday.

Rules and key headnotes

Constitutional Interpretation — Reference to Constitutional Court — Mandatory nature under Article 137(5)(b)
Where a party to proceedings requests referral of a question of constitutional interpretation, the court has no discretion under Article 137(5)(b) of the Constitution and must refer the question to the Constitutional Court.
Right to Liberty — Bail — Right to bail versus right to apply for bail under Article 23(6)
Article 23(6)(a) confers a right to apply for bail which the court may grant in its unfettered but judiciously exercised discretion, while Article 23(6)(b) and (c) confer an automatic right to release after prescribed remand periods.
Supremacy of the Constitution — Article 273 — Existing bail statutes yielding to constitutional provisions
The bail provisions of the Trial on Indictments Act, the Magistrates' Courts Act and the Uganda Peoples Defence Forces Act must yield to Article 23(6) of the Constitution to the extent of any inconsistency, pursuant to Article 273.
Bail — Interim bail pending constitutional reference — Considerations for grant
A court may grant interim bail pending determination of a reference to the Constitutional Court, weighing the gravity of the charges against the accused's liberty, fixed abode, absence of prior imprisonment, non-history of absconding, and sufficiency of sureties.

Legislation cited (13)

Cases cited (6)

  • Katuramu v Uganda, Case No. 1 of 2000
  • Byaruhanga Rugyema v Uganda, Case No. 87 of 1988
  • Matove v Uganda (Criminal Miscellaneous Application No. 15 of 2005)
  • Tumushabe v Attorney General (Constitutional Petition No. 6 of 2004)
  • R v Saunders (1841) 2 Cox C.C. 249
  • Johnson v Shaffer, 64 Ohio App. 236, 28 N.E. 2d 765, 767

Full judgment

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Col. (Rtd.) Dr. Kiiza Besigye v Uganda (Criminal Misc. Application No. 228 of 2005) [2005] UGCA 100 (25 November 2005)
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.