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Uganda: Privilege of Bail Pending Appeal
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The Monitor (Kampala)
OPINION
4 May 2008
Posted to the web 5 May 2008
Jamil D. Mujuzi
It's unfortunate that Maj. Gen. James Kazini, one of the army officers who have put their lives in grave danger for the security of our country, is now not 100% a free man. He is on bail pending appeal. On the other hand, its good news that the Court Martial granted him bail on grounds now better known to us and under circumstances that were clearly documented in the Sunday Monitor of April 27.
I will not enter into the argument whether under the UPDF Act and the relevant laws Gen. Kazini had right to bail pending appeal. The question for today's discussion is whether an appellant has a right to bail pending appeal. In the Sunday Monitor, May 27, Dr Jean Barya was right when he said that there was nothing extraordinary about getting bail pending appeal and Mr James Nangwala was also right that bail pending appeal was only granted in exceptional circumstances.
However, I am not in agreement with Mr Nangwala's argument that when the judicial officer finds that the appellant has a strong case, the appellant should be granted bail because 'it is a right given by the law.'
My understanding is that the right to bail before conviction (bail pending trial) is specifically provided for under the Constitution (Article 23), but bail pending appeal is provided for under an Act of Parliament (section 40(2) of the Criminal Procedure Code) and its meaning and extent have been gradually developed by case law with the founding principle being that it can only be granted in exceptional circumstances.
Article 23(6)a of the Constitution provides that a person who is awaiting trial 'is entitled' to apply for bail and 'the court may grant that person bail on such conditions as the court considers reasonable.' This article appears to stipulate that whereas a person has a right to apply for bail, he does not have a right to be granted bail.
However, Article 23(6) clauses (b) and (c) are to the effect that in case of a person in custody for an offence triable by the High Court as well as by the subordinate court, that person, 'shall be released on bail on such conditions as the court considers reasonable' if he has spent the stipulated number of days in custody under each clause.
The aforementioned provisions should be contrasted with section 40(2) of the Criminal Procedure Code which provides that 'the appellant court, may, if it sees fit, admit an appellant to bail pending the determination of his or her appeal.' Courts in Uganda have in several decisions interpreted bail pending trial to be a constitutional right.
This interpretation is in agreement with international law and with the jurisprudence of the Human Rights Committee (established under the International Covenant on Civil and Political Rights to which Uganda is party). Under what circumstances may a person be granted bail pending appeal? The most important condition is that the appellant must show that there are exceptional circumstances.
The question is what are unusual or exceptional circumstances? They include: 'a set of circumstances which disclose substantial merit in appeal which would result in the appeal being allowed' the reason 'being that if the appeal has such overwhelming chances of success, there would be no justification in depriving the applicant of his liberty' Kamau v Republic (2006); the appellant must be suffering from a medical condition that cannot be treated in prison and the situation must be life threatening; the appellant must be of advanced age; and whether the applicant is likely to serve a substantial part of his sentence before his appeal is heard.
Ultimately, it all depends on the circumstances of the case and the discretion of the court petitioned. It's not a right but a privilege.
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Mr Mujuzi is a Ugandan PhD candidate, Faculty of Law, University of the Western Cape, Cape Town, South Africa
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