High Court Clarifies That Courts Cannot Deny Mandatory Bail Based on the Gravity of the Offence; Says Parliament Already Balanced the Gravity of Capital Offences in the 180-Day Mandatory Bail Rule.

FACTS

The Applicant, Marijani Swaibu, was arrested on 3 November 2024 on allegations of aggravated robbery and murder. He was subsequently detained at Kabalagala Police Station before being arraigned before the Chief Magistrate's Court at Makindye on 17 December 2024, where he was added as the second accused in Criminal Case No. AA 169 of 2024.

The offences charged were Aggravated Robbery contrary to sections 285 and 286(2) of the Penal Code Act, Cap. 128, and Murder contrary to sections 188 and 189 of the same Act, both offences being triable exclusively by the High Court.

Despite numerous mentions before the Chief Magistrate's Court, investigations remained incomplete and the Applicant's case had not been committed to the High Court for trial. By the time the application was determined, the Applicant had spent one year, six months and twelve days on remand, well beyond the 180-day constitutional threshold prescribed under Article 23(6)(c) of the Constitution.

The Applicant therefore applied for mandatory bail under Article 23(6)(c) of the Constitution, contending that he had fulfilled all constitutional requirements for release.

ISSUES FOR DETERMINATION

The Court considered the following issues;

1. Whether the Applicant had satisfied the constitutional requirements for mandatory bail under Article 23(6)(c) of the Constitution.

   
   

SUBMISSIONS OF THE PARTIES

Applicant's Submissions

The Applicant submitted that he had been on remand for well over the constitutional period of 180 days without his case being committed to the High Court for trial.

He further submitted that he had a fixed place of residence within Kampala District and was willing to comply with any conditions that the Court considered appropriate for his release. He argued that once the constitutional threshold had been met, Article 23(6)(c) entitled him to mandatory bail.

Respondent's Submissions

The Respondent opposed the application.

The State submitted that the Applicant faced charges of aggravated robbery and murder, offences carrying the maximum penalty of death, and argued that the seriousness of the offences significantly increased the likelihood that he would abscond.

The Respondent further submitted that the Applicant had failed to demonstrate exceptional circumstances warranting release and had not sufficiently proved his fixed place of abode through documentary evidence such as title deeds or utility bills. It was also submitted that no acceptable sureties had been presented and that investigations were still ongoing, creating the possibility of interference with witnesses or investigations.

In the alternative, the Respondent prayed that if bail were granted, it should be subject to stringent conditions and substantial sureties sufficient to secure the Applicant's attendance at trial.

LEGAL REPRESENTATION

1. Applicant: Appeared in person.

2. Respondent: Ms. Happiness Ainebyona, Chief State Attorney.

COURT'S FINDINGS

The Court held that Article 23(6)(c) creates both an entitlement to apply for bail and a mandatory obligation on the Court to release an accused person once the prescribed conditions are satisfied.

The Court observed;

"Mandatory bail is a constitutional entitlement, not an indulgence at the court's pleasure; once the preconditions are proved, the court's function is confined to fixing reasonable conditions, not to weighing whether liberty should be restored at all."

Justice Wolimbwa emphasised that once an accused has remained on remand for more than 180 days without committal to the High Court, the Court has no discretion to refuse bail.

The Court stated;

"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."

The Court's discretion begins only when fixing bail conditions

The Court rejected the argument that it could revisit whether bail should be granted after the constitutional threshold had been met.

Instead, it held that once entitlement is established, the Court's role is limited to determining reasonable conditions that secure attendance at trial.

The Court explained;

"Once the constitutional preconditions for bail are satisfied, the court's discretion is confined to fixing the conditions that will secure the accused's return to answer the charge, the question of grant no longer arises."

The seriousness of the offence cannot defeat mandatory bail

The Court acknowledged the gravity of charges such as murder and aggravated robbery but held that Parliament had already considered the seriousness of High Court offences when fixing the constitutional threshold at 180 days.

The Court reasoned that judges cannot effectively rewrite Article 23(6)(c) by refusing bail because of the seriousness of the offence.

Justice Wolimbwa observed;

"Parliament has already weighed the gravity of capital and High-Court-only offences in fixing the qualifying period at 180 days... it is not open to a court... to re-litigate that legislative judgment."

Bail conditions must be reasonable and proportionate

The Court held that bail conditions should never be so onerous as to render the constitutional right illusory.

It emphasised that the primary purpose of bail conditions is to secure attendance at trial rather than punish an accused person before conviction.

The Court stated;

"Mandatory bail granted in name but rendered practically unattainable is no bail at all."

The Court further explained that the amount of bond and the standing of sureties must be proportionate to the applicant's individual circumstances.

The Court noted that responsibility for delays in criminal proceedings was irrelevant under Article 23(6)(c).

What mattered was the passage of time.

Justice Wolimbwa observed:

"Article 23(6)(c) is framed by reference to time, not fault, and the time has, on any view, long since run out."

Sureties may be vetted after bail is granted

Although the Applicant had not presented sureties at the hearing, the Court held that this did not prevent the grant of mandatory bail.

Instead, it directed that suitable sureties be vetted and approved by the Deputy Registrar before release, consistent with paragraph 15 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022.

HOLDING

The High Court allowed the application and granted the Applicant mandatory bail under Article 23(6)(c) of the Constitution.

The Court ordered that;

1. the Applicant execute a non-cash bond of UGX 10,000,000;

2. two substantial sureties each execute non-cash bonds of UGX 5,000,000;

3. the sureties be vetted and approved by the Deputy Registrar of the Criminal Division before release;

4. the Applicant report to the Deputy Registrar on the first Monday of every month until committal, and thereafter as directed by the trial court;

5. the Applicant not leave Uganda without prior leave of Court;

6. the Applicant refrain from interfering with witnesses, the complainant or ongoing investigations.

The Court further ordered that breach of any bail condition would expose the Applicant to cancellation of bail, forfeiture of security and any other legal consequences.

Read the full case

Marijani Swaibu v Uganda (Criminal Miscellaneous Application 753 of 2025) 2026 UGHCCRD 38 .

Download • 2.47MB

KEY TAKEAWAYS

1. Once an accused person satisfies Article 23(6)(c) by spending more than 180 days on remand without committal for offences triable exclusively by the High Court, the Court must grant bail.

2. The Court cannot reconsider whether bail should be granted after the constitutional threshold is met. Its role is confined to fixing reasonable conditions that secure attendance at trial.

3. Parliament already balanced the gravity of capital offences when prescribing the 180-day constitutional period, and courts cannot revisit that legislative determination.

4. Whether the prosecution, police or court is responsible for the delay is immaterial once the prescribed period has expired.

5. Courts should avoid imposing conditions so onerous that they effectively deny the constitutional right to bail.

6. Where suitable sureties have not yet been presented, the Court may grant bail in principle and direct the Deputy Registrar to vet and approve them before release.

7. Continued detention beyond the constitutional period cannot be justified by the seriousness of the allegations alone, and courts must jealously protect the liberty guaranteed under Article 23 of the Constitution.