Mandatory Bail in Uganda: Understanding Article 23(6) of the Constitution in the Light of its Drafting History

Mandatory Bail in Uganda: Understanding Article 23(6) of the Constitution in the Light of its Drafting History

Author Jamil Ddamulira Mujuzi

ISSN: 2411-7870
Affiliations: Professor, Faculty of Law, University of the Western Cape
Source: Fundamina, Volume 27 Issue 2, p. 38-66
https://doi.org/10.47348/FUND/v27/i2a2

Abstract

Article 23(6)(a) of the Ugandan Constitution of 1995 provides that an arrested person is entitled to apply to court for discretionary bail. If a person has been awaiting trial for a specified number of days, article 23(b) and (c) obligates a court to release him/her on mandatory bail. This contribution analyses more than one hundred judgments of the Ugandan courts to determine how the question of bail, especially mandatory bail, has been dealt with judicially. Since article 23(6) does not expressly provide for the right to bail, the Ugandan Constitutional Court has come to conflicting conclusions on the question of whether article 23(6) provides for the right to be released on bail; for the right to apply for bail; or for both the right to apply for bail and to be released on bail. Relying on the drafting history of article 23(6), the author argues that the intention of the Constituent Assembly was to provide for the right of arrested persons to be released on bail. Article 23(6) also provides for mandatory bail. However, in some decisions, the High Court held that the right to mandatory bail does not fall away the moment at which a person who qualifies for it in terms of article 23(6) is committed to the High Court for trial. Based on the drafting history and literal interpretation of article 23(6), it is submitted that the moment an accused’s trial commences in a subordinate court or when they are committed to the High Court, their right to mandatory bail falls away. In addition, the High Court has held that a person who qualifies for mandatory bail is required to prove exceptional circumstances before they can be released on bail. This contribution argues that no such burden of proof exists.

The Pirate as Hostis Humani Generis: the Illegitimate Enemy

The Pirate as Hostis Humani Generis: the Illegitimate Enemy

Author Vishal Surbun

ISSN: 2411-7870
Affiliations: LLB LLM (Maritime Law) PhD (University of KwaZulu-Natal). Senior lecturer, School of Law, University of KwaZulu-Natal. Attorney and Notary Public of the High Court of South Africa
Source: Fundamina, Volume 27 Issue 2, p. 67-86
https://doi.org/10.47348/FUND/v27/i2a3

Abstract

Alongside the widely accepted definition of maritime piracy, the phrase hostis humani generis or “enemies of all humankind” has been frequently used in piracy jurisprudence and scholarship. This contribution traverses the historical usage of the phrase in academic commentaries and finds that while a literal translation of the phrase has mostly remained the same over the centuries, there has been no consistent definition and contextualisation of the term “enemy”. In this context, the contribution then investigates whether the phrase is a reliable epithet, and whether it should be seen as part of the definition of “pirate”.

Raising the Yellow Flag: Legal Regulation to Contain the Spread of Smallpox and Other Contagious Diseases in the Zuid-Afrikaansche Republiek

Raising the Yellow Flag: Legal Regulation to Contain the Spread of Smallpox and Other Contagious Diseases in the Zuid-Afrikaansche Republiek

Author Liezl Wildenboer

ISSN: 2411-7870
Affiliations: Senior lecturer, Department of Jurisprudence, College of Law, University of South Africa
Source: Fundamina, Volume 27 Issue 2, p. 87-124
https://doi.org/10.47348/FUND/v27/i2a4

Abstract

Although the Cape had experienced frequent outbreaks of smallpox and other epidemics since the early eighteenth century, the first smallpox epidemic only started in the Zuid-Afrikaansche Republiek (ZAR) much later, in the 1890s. This contribution takes a closer look, first, at the regulation of the medical profession in the ZAR, and, secondly, at the government’s attempts to prevent the spread of the disease with the promulgation of the Contagious Diseases Law 12 of 1895. That law also attempted to prevent the spread of other diseases, such as syphilis and leprosy, although the latter would eventually be regulated in terms of the Leprosy Law 15 of 1897.

A Historical Overview of the Mental Health Expert in England Until the Nineteenth Century

The Protection of Refugee Children in Africa: Post-Convention on The Rights of The Child

Authors Leah A Ndimurwimo and Molya ND Vundamina

ISSN: 2411-7870
Affiliations: Senior lecturer, Nelson Mandela University; LLD (NWU) LLM (NMMU) LLB (OUT); LLM candidate; LLB (NMU)
Source: Fundamina, Volume 27 Issue 1, p. 33-66
https://doi.org/10.47348/FUND/v27/i1a2

Abstract

The plight of refugees is currently one of the concerning global human rights issues. The refugee population is largely comprised of women and children who become displaced during armed conflicts; this is because the majority of persons killed or who become victims of forced disappearance are men. Forcibly displaced children face direct physical threats, as well as a variety of health-related problems. Although forcibly displaced children generally include those who are not refugees, this contribution is only concerned with refugee children. Refugee children are vulnerable to different types of abuse and exploitation, and often become the target of discrimination, sexual exploitation and social marginalisation in the refugee transit camps and countries of exile. Although the Convention on the Rights of Child, 1989 was adopted to protect children’s rights worldwide, the true impact of these provisions remains uncertain. This contribution examines the extent to which the adherence to the Convention on the Rights of the Child is promoted in Africa. This study compares the situation in South Africa, Tanzania and Zambia to pinpoint the legal and practical challenges that face refugee children in those countries. The contribution concludes with recommended solutions for effectively protecting and promoting refugee children’s rights in Africa.

The Protection of Refugee Children in Africa: Post-Convention on The Rights of The Child

The Protection of Refugee Children in Africa: Post-Convention on The Rights of The Child

Authors Leah A Ndimurwimo and Molya ND Vundamina

ISSN: 2411-7870
Affiliations: Senior lecturer, Nelson Mandela University; LLD (NWU) LLM (NMMU) LLB (OUT); LLM candidate; LLB (NMU)
Source: Fundamina, Volume 27 Issue 1, p. 33-66
https://doi.org/10.47348/FUND/v27/i1a2

Abstract

The plight of refugees is currently one of the concerning global human rights issues. The refugee population is largely comprised of women and children who become displaced during armed conflicts; this is because the majority of persons killed or who become victims of forced disappearance are men. Forcibly displaced children face direct physical threats, as well as a variety of health-related problems. Although forcibly displaced children generally include those who are not refugees, this contribution is only concerned with refugee children. Refugee children are vulnerable to different types of abuse and exploitation, and often become the target of discrimination, sexual exploitation and social marginalisation in the refugee transit camps and countries of exile. Although the Convention on the Rights of Child, 1989 was adopted to protect children’s rights worldwide, the true impact of these provisions remains uncertain. This contribution examines the extent to which the adherence to the Convention on the Rights of the Child is promoted in Africa. This study compares the situation in South Africa, Tanzania and Zambia to pinpoint the legal and practical challenges that face refugee children in those countries. The contribution concludes with recommended solutions for effectively protecting and promoting refugee children’s rights in Africa.

Keeping The Natives in Their Place: The Ideology of White Supremacy and The Flogging of African Offenders in Colonial Natal – Part 2

Keeping The Natives in Their Place: The Ideology of White Supremacy and The Flogging of African Offenders in Colonial Natal – Part 2

Keeping The Natives in Their Place: The Ideology of White Supremacy and The Flogging of African Offenders in Colonial Natal – Part 2

Author: Stephen Peté

ISSN: 2411-7870
Affiliations: BA LLB (University of Natal) LLM (University of Cape Town) M Phil (University of Cambridge) PhD (University of KwaZulu-Natal). Associate Professor, School of Law, University of KwaZulu-Natal.
Source: Fundamina, Volume 27 Issue 1, p. 67-100
https://doi.org/10.47348/FUND/v27/i1a3

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Peté, S
Keeping The Natives in Their Place: The Ideology of White Supremacy and The Flogging of African Offenders in Colonial Natal – Part 2
Fundamina, Volume 27 Issue 1, p. 67-100
https://doi.org/10.47348/FUND/v27/i1a3

Abstract

The political economy of colonial Natal was based on a coercive and hierarchical racial order. Over decades, the white colonists struggled to assert their power over the indigenous inhabitants of the colony, and to force them off their land and into wage labour in service of the white colonial economy. This process resulted in ongoing resistance on the part of the indigenous population, which ultimately manifested as a series of rebellions and revolts throughout the colonial period, and which were met with force by the white colonists. White colonial ideology was shaped by the violent and adversarial nature of the social, political and economic relations between white and black in the colony. It was also influenced by the broader global context, within which colonisation was justified by racist variants of the theory of Social Darwinism. Driven by a strange mix of deep insecurity and fear on the one hand and racist paternalism on the other, the white settlers of colonial Natal developed a variant of white supremacist ideology with a special flavour. Nowhere was this more apparent than in their near obsession with flogging as the most appropriate manner of dealing with, in particular, African offenders. By closely examining a series of public debates that took place in the colony of Natal between 1876 and 1906, this contribution seeks to excavate the various nuanced strands of thinking that made up the ideology of white supremacy in the colony at the time.