Da Dona
JF-Expert Member
- Dec 16, 2025
- 1,045
- 624
The High Court has issued two landmark rulings declaring that accused persons who have spent more than 180 days on remand without their cases being committed to the High Court for trial are constitutionally entitled to bail.
In separate rulings, Justice Paul Gadenya Wolimbwa granted bail to one applicant charged with murder and aggravated robbery and another charged with aggravated robbery and attempted murder. He also ruled that applicants seeking mandatory bail under Article 23(6)(c) of the Constitution are not required to prove exceptional circumstances.
Justice Gadenya said Article 23(6)(c) gives an accused person arrested for an offence triable only by the High Court the right to apply for bail after 180 days on remand before committal, and places a mandatory obligation on courts to grant bail on reasonable conditions.
“Once an accused person has spent more than 180 days on remand without committal, the court has no choice but to release the person on reasonable conditions,” he ruled.
One of the applicants, Marijani Swaibu, was arrested on November 3, 2024, on allegations of aggravated robbery and murder. He was arraigned before the Makindye Chief Magistrate's Court on December 11, 2024, and had remained on remand at Luzira Upper Prison as investigations continued and his case was repeatedly mentioned without being committed to the High Court.
The second applicant, Abdul Nsereko, was arrested in Bwaise and charged before Nabweru Magistrate's Court with aggravated robbery and attempted murder on July 3, 2024. Like Swaibu, he remained on remand for more than 180 days without committal.
The Director of Public Prosecutions (DPP) opposed both applications, arguing that the offences carry the death penalty, making the applicants a flight risk. The prosecution also argued that the applicants had failed to demonstrate exceptional circumstances, had not proved a fixed place of residence through documents such as land titles or utility bills, and that investigations were still ongoing, raising concerns that witnesses could be interfered with.
Justice Gadenya rejected those arguments, holding that once the constitutional conditions for mandatory bail are satisfied, the court's role is limited to determining appropriate bail conditions.
He cited previous Constitutional Court decisions, saying bail is an essential component of the rights to liberty and human dignity and that the seriousness of an offence or public concern cannot override an express constitutional guarantee.
The judge also noted that Parliament deliberately reduced the qualifying remand period from 360 days to 180 days through the Constitution (Amendment) Act, 2005.
“It was Parliament, not the courts, that found the earlier threshold too generous to the state and too indulgent of delay, and shortened it to one hundred and eighty days. A provision deliberately tightened in this way is not one a court should approach as though it retained an unspoken discretion to relax it again by another route,” he ruled.
Justice Gadenya further held that bail conditions should not undermine the constitutional right to mandatory bail. He said bond amounts and surety requirements must be realistic and proportionate to an applicant's circumstances.
“Mandatory bail granted in name but rendered practically unattainable is no bail at all,” he said.
In the Nsereko ruling, the judge also dismissed the prosecution's reliance on exceptional circumstances, the gravity of the charges and proof of residence.
He ruled that exceptional circumstances apply only to discretionary bail applications made before the constitutional remand period expires and have no place in applications under Article 23(6)(c).
He further held that the gravity of the offences and the perceived risk of flight cannot defeat an accused person's constitutional entitlement to mandatory bail, though they may influence the conditions imposed.
On proof of residence, Justice Gadenya said requiring applicants to produce land titles or utility bills asks more than the law requires.
“Neither the Constitution nor the Bail Guidelines requires an applicant to own the home in which he lives,” he ruled, adding that an applicant's national identity card and a letter from the Local Council chairperson are sufficient under the Bail Guidelines.
The judge granted both applicants non-cash bail of Shs10 million each, while each of their two sureties executed non-cash bonds of Shs5 million.
The rulings mark a significant departure from previous decisions in which courts denied bail to accused persons despite their having spent more than 180 days on remand before committal to the High Court.
The decision also comes days after President Yoweri Museveni said courts may deny bail to what he described as "opposition lawbreakers" over concerns they could interfere with witnesses.
Many accused persons, including opposition politicians and other detainees, have spent months and in some cases years on remand before their cases were committed to the High Court, with many previous bail applications being unsuccessful.
Source: Observer
