KAMPALA – For a long time in the criminal justice system of Uganda, it was impossible for an aggrieved convict seeking bail pending appeal not to cite the famous case of Arvind Patel v Uganda, Criminal Application No, 1 of 2003.
Many although selectively have been granted bail pending appeal. These include former National Social Security Fund (NSSF) boss David Chandi Jamwa, Segujja Danny, the former permanent secretary in the Local Government ministry, Serunkuma Edirisa, John Muhanguzi Kashaka, Matovu Edgar, Alenyo Mark, Baingana John Paul, Bireeta Sarah, Kyeyune Mitala Julius, Apolo Senkeeto among others on grounds that they had a pending appeals which were yet to be determined with a likely hood of success. For this reason, Magombe through his Lawyer argued that there was need for court to have consistency in its decisions and their application of the law.
However, in a recent decision that shocked many and could hold many convicts at ransom, Justice Esther Kisaakye differed substantially from the decision of Arthur Oder JSC as he then was in the Arvind case arguing that granting bail pending appeal is alien to the human rights regime under Chapter four of the Constitution of Uganda.
Joshua Magombe a former Employee of MTN had been found guilty and convicted and sentenced to nine years in prison by the Anti-Corruption Court for theft, electronic fraud, unauthorised access contrary to the Computer Misuse Act, 2011, and conspiracy to commit a felony.
He was aggrieved by the decision and appealed to the Court of Appeal which reversed the conviction on two counts, but upheld the convictions and sentences on the other two counts. His dissatisfaction with part of the decision of the court of appeal saw him proceed to the Supreme Court under Criminal Appeal No. 39 of 2019 which gave birth to Miscellaneous Application No. 11 of 2019 for bail pending the determination of his fore mentioned appeal. Magombe cited Article 126(2)(e) of the constitution, Rules 2(2), 6(2)(a), 42, 43 of the judicature (Supreme Court) Rules.
Rule 6(2)(a) of the judicature (Supreme Court) Rules provides thus, in any criminal proceedings, where notice of appeal has been given in accordance with rules 56 and 57 of these Rules, order that the appellant be released on bail or that the execution of any warrant of distress be suspended pending the determination of the appeal. Despite all the authorities and relevant laws cited, the final decision of the Supreme Court was that the Appellate courts did not have the mandate to consider or grant bail pending appeal.
A close scrutiny of Justice Esther Kisakye’s decision means that the decision in Arvind Patel v Uganda and all other decisions that followed were wrongly decided since there was no constitutional basis upon which the Supreme Court or even a lower appellate court could grant bail to a person pending appeal. The Judge insisted that there is no provision under the Constitution which gives the Supreme Court or even a lower court power to grant bail to a person pending the hearing of his or her appeal.
Justice Esther Kisakye further argued that Article 132(2) of the Constitution vests jurisdiction in the Supreme Court to hear criminal appeals and to deal with matters incidental to hearing of criminal appeals, BUT does not give powers to the Supreme Court to consider the release of a convicted person before disposal of his or her appeal.
Now the unanswered question on every legal mind is whether or not Appellate Courts in Uganda have power to grant bail to a convicted person pending appeal. My answer is yes and these are my reasons.
The wording of Chapter four regarding bail could have lapses but the spirit behind Article 28(3)(a) read together with Article 23(6)(a) was that at any given time, an accused person must be treated with glove hands and viewed with a lens of innocence provided they don’t plead guilty to the charges brought against them.
The foregoing is the reason why I believe the presumption of innocence must be maintained right from the court of first instance to the last appellate court read together with Article 23(6)(a) of the constitution. Bail as a right should be maintained and made available to an accused at any stage irrespective of the court in which they have taken their grievance for adjudication.
Besides being a constitutional right, an accused person should always be a candidate for bail more so those who are found to be gravely ill and cannot be treated by the prisons service, a person of advanced age, a bread winner, a single parent, a person with no past criminal record, a breast feeding mother among others. The courts have the capacity to set conditions to ensure that the accused person attends court whenever required.
For starters, Article 23(6)(a) provides that where a person is arrested in respect of a criminal offence—(a)the person is entitled to apply to the court to be released on bail, and the court may grant that person bail on such conditions as the court considers reasonable. By enacting the foregoing provision, the Legislators had in mind Article 28(3)(a) of the Constitution which provides that every person who is charged with a criminal offence shall—(a)be presumed to be innocent until proven guilty or until that person has pleaded guilty.
When an accused person is arraigned before court for plea taking, it is their right to accept or deny the charged. To deny the charge(s) means that a plea of not guilty is entered. It is now a well established principle of law that the moment an accused person pleads not guilty to a charge, everything in the charge becomes in issue and the prosecution has a burden to prove each element of the offence and the standard of proof is proof beyond reasonable doubt.
Ordinarily, after the initial hearing of a criminal case, the court will decide whether or not to put the accused to his defense. It does not matter whether or not the court finds the accused person guilty, the right to appeal is non derogable and should be treated to mean that the accused person still maintains his innocence.
A decision to appeal means that the accused person is not satisfied with the verdict of the lower court and as such the accused person still maintains his/her earlier plea of not guilty as if he has just been arrested and therefore must maintain his innocence within the meaning of Article 28(3)(a) of the Constitution from court of first instance to the Supreme Court of the land.
In evaluating evidence, an appellate court must be alive to the ends of justice and should occasionally close one of its eyes as if there was never any hearing touching the matter for which an accused was found guilty. The appellate court should wear the shoes of the judicial officer of the lower court and investigate why and how such a decision of that nature was reached at.
In the Magombe’s case, the learned Justice concluded that Article 23(6)(a), which provides for the right to bail only refers to a person arrested in respect of a criminal offence and not to a person already convicted of a criminal offence. Justice Kisakye argued that the whole concept of bail pending appeal is alien to the human rights regime in the Constitution of Uganda.
She also argued that that Rule 6 of the Judicature (Supreme Court Rules) Direction SI 13-10 (the “Rules of the Supreme Court”) on which Magombe relied for his bail application is null and void to the extent that it gives the Supreme Court the power to grant bail pending appeal; yet (i) no such right exists under the Constitution; and (ii) no power to grant such bail is vested in the Supreme Court under the Constitution.
Respectfully, the Learned Judge seems to have overlooked the fact that Rule 6(2)(a) of the Supreme Court Rules which she says offends the Constitution of Uganda, and therefore null and void, was enacted with approval of Parliament to operationalise Section 5(11) of the Judicature Act. Some of these laws cannot be read in isolation.
To me, the Judge seems to have shifted her attention to only the contextual interpretation of Article 23(6)(a) of the Constitution as a basis for bail pending appeal. Article 45 provides that The rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned.
Therefore, one cannot talk about bail pending appeal without making reference to other laws such as Section 40 of the Criminal Procedure Code Act and Section 132(4) of the Trial on Indictment Act. For avoidance of doubt, Section 40 (2) provides that the appellate court may, if it sees fit, admit an appellant to bail pending the determination of his or her appeal; but when a magistrate’s court refuses to release a person on bail, that person may apply for bail to the appellate court.”
Section 132(4) provides that except in a case where the appellant has been sentenced to death, a judge of the High Court or the Court of Appeal may, in his or its discretion, in any case in which an appeal to the Court of Appeal is lodged under this section, grant bail, pending the hearing and determination of the appeal.
Let us not forget that section 132(2) of the Trial on Indictment Act applies to the Supreme Court by virtue of section 5(11) of the Judicature Act. Article 132(2) of the Constitution provides that an appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law. Section 5 of the Judicature Act was enacted by Parliament to prescribe how the Supreme Court will exercise the jurisdiction vested in it under Article 132(2) of the Constitution, when dealing with appeals in criminal matters.
Thankfully, Joshua Magombe’s fate is not sealed yet as far as his quest for bail pending appeal is concerned. As he awaits his case to be course listed, I am of the view that his Lawyers should make a reference to a full bench of Supreme Court Judges to review Justice Esther Kisakye’s decision. Otherwise, this decision must be set aside lest the Government of Uganda should prepare to expand our prisons to accommodate thousands of prisoners whose appeals have not been determined.
I retaliate that the Arvind case that was founded on Articles (23)(6) and 28(3) (a) of the Constitution was correctly decided and that the whole concept of courts granting bail pending appeal is a well established principle and must be upheld.
It is the practice of Appellate courts in Uganda to organize sessions in which appeals are course listed for trial. Depending on a given backlog and the shortage of Judges, some appeals can remain pending until an accused person completes his sentences and a decision is made posthumously which occasions an injustice especially if the decision of the lower court is overturned. The only option available to such a person is to sue the Government for malicious prosecution with a view of being compensated. Even in such cases, compensation never comes through as the Government gives excuses of not having money to settle court orders.
It goes without saying that the presumption of innocence subsists before and after conviction of a person with a criminal offence provided he/she chooses to appeal the decision. The right of innocence under Article 28(3) of the Constitution only becomes extinguished when an accused person accepts the outcome of court.
Otherwise, a convicted person who chooses to appeal should carry with him his right of innocence which entitles him to bail pending appeal. Denying him bail during appeal is to confirm his guilt prematurely before he given a chance to first exhaust all his rights of appeal before he can start serving his sentence if confirmed by the Appellate court.
The writer, Rogers Wadada is a human rights activist and a Lawyer