Constitutional Court dismisses petition challenging Magistrates hearings and bail

Kampala, Uganda | THE INDEPENDENT | The Constitutional Court has dismissed a petition challenging the constitutionality of Sections 1 and 16 of the Trial on Indictment Act that allows the Magistrates Court to hear capital offenses before they are committed to the High Court. A petition filed by one Asingwire Alex Mukasa alleges that the provisions allowing for the committal proceedings to be carried out in the Magistrates Courts before hearing a capital offence in the High Court and yet Magistrates Courts lack jurisdiction to grant bail in capital offences is unconstitutional.

These provisions, Asingwire therefore contended, contravene the right to a fair and speedy hearing and the presumption of innocence that are provided for under the Constitution. Asingwire also challenged the constitutionality of Guidelines 10 (2) and 10 (3) that sets out conditions under which courts can grant bail in criminal offences only triable by the High Court. He said these also contravene of Articles 2, 23(6) (b) and (c) of the Constitution and in effect seek to amend it by introducing grounds that were never envisaged.

In his response to the petition, the attorney general, who is the respondent on all matters concerning government, raised objections to the petition, arguing that the two grounds on which it was based were all determined by the court and reopening it would be contrary to judicial practice.

In her lead judgment, Esta Nambayo agreed with the attorney general that the constitutionality of Section 1 of the Trail on Indictment Act had already been dealt with by the Constitutional Court in the Barihaihi case against the Attorney General which upheld it while section 16 of the same act which conditioned bail was ruled unconstitutional by the Supreme Court in a case brought against the Attorney General by the Foundation for Human Rights Initiative.

“The petitioner has not given any reason justifying departure from this court’s decision in the Barihaihi case. ln my view, it is not enough for the petitioner to say that this court should depart from its previous decision. Departure from a previous decision must be justified. In the circumstances, I find that there is no justification for departure from the Barihaihi case and that the decision in the Barihaihi case is still good law,” Nambayo’s ruling reads in part.

On Section 16, which the Supreme Court ruled unconstitutional, yet Magistrate courts still rely on it to make bail decisions, the Court said the petitioner should file the case in the High Court that has jurisdiction to enforce constitutional rights. “The Supreme Court is the final appellate court, and its decisions are binding to this court. Once the Supreme Court has pronounced itself on a matter, the Court of Appeal cannot entertain the same issue again. lf the Magistrates Courts are applying section 16 of the Trial on Indictments Act in disregard of its unconstitutionality as already decided by the supreme court, all that the Petitioner has to do is to apply for enforcement of the rights of the parties under Article 50 of the Constitution before the court with jurisdiction to handle such a matter, which is the High Court,” the judgement reads in part.

The court also declined to find the guidelines on the grant of bail in criminal offences triable by the High Court inconsistent with the Constitution. The Justice held that the High Court’s exclusive jurisdiction to grant bail in cases triable only by the High Court does not mean that bail is prohibited in capital offences.

“It only means that the bail application must be made before the High court and that it is the High court that has the discretion to grant or deny bail, based on the specific circumstances of the case…The intention of Guidelines 10(2) and (3) was to guide and emphasize to the Magistrates Courts that only the High Court has jurisdiction to grant bail in cases triable only by the High Court,” Nambayo’s judgement reads in part. All the other four justices, who included Irene Mulyagonja, Byaruhanga Jessy Rugyema, Ketrah Kitariisibwa Katunguka and John Mike Musisi agreed with her ruling.

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