Abstract

Article 23(6) of the Constitution of Uganda (1995) provides that an arrested person is ‘entitled’ to apply to court for bail. However, it is silent on the issue of bail pending appeal. Bail pending appeal is provided for in the Magistrates Courts Act, the Judicature Act and the Criminal Procedure Code Act. Although the Supreme Court, the highest court in Uganda, provided criteria for granting bail pending appeal, some high court and Court of Appeal judges, who are bound by the decisions of the Supreme Court, have ignored these criteria. There are conflicting high court, Court of Appeal and Supreme Court judgments on the questions of whether art 23(6) is applicable to bail pending appeal and whether the right to be presumed innocent is applicable to a person who is applying for bail pending appeal. There are notable controversies in the rich jurisprudence of the Supreme Court on bail pending appeal. In October 2020, one of the justices of the Supreme Court held that the Supreme Court does not have the jurisdiction to grant bail pending appeal and that Rule 6(2)(a), which empowers the Supreme Court to grant bail pending appeal, is unconstitutional. In November 2020, another Supreme Court justice granted an applicant bail pending appeal without even referring to her colleague’s decision which held that the court did not have jurisdiction to grant bail pending appeal. This article examines the jurisprudence developed by the courts of Uganda on the subject. The discussion focuses on the following issues: courts with jurisdiction to grant bail pending appeal; the right to bail pending appeal; the presumption of innocence and bail pending appeal; and conditions for granting bail pending appeal.