Uganda's Constitutional Court reaffirms that Magistrates’ courts cannot grant bail in cases triable only by the High Court; applications must be made directly to the High Court.

Waboga David
Aug 10
6 min read

Coram:

Justice Esta Nambayo, JA/JCC
Justice Mulyagonja, JA/JCC
Justice K.K. Katunguka, JA/JCC
Justice John Mike Musisi, JA/JCC
Justice Byaruhanga Jesse Rugyema, JA/JCC

Introduction

The law on bail in Uganda is primarily anchored in Article 23(6) of the 1995 Constitution, which guarantees the right of any person arrested in respect of a criminal offence to apply for release on bail. The provision further establishes mandatory release on bail after specified periods of pre-trial detention:

60 days for offences triable by both the High Court and subordinate courts (Art. 23(6)(b)); and
180 days for offences triable only by the High Court (Art. 23(6)(c)).

This constitutional framework is supplemented by statutory provisions, notably in the Trial on Indictments Act (TIA) Cap 25, and by subordinate legislation such as the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022, which provide procedural guidance on the exercise of bail jurisdiction.

While bail is a constitutional right, it is not absolute; courts retain discretion to grant or deny it based on the circumstances of each case, provided they act within the bounds of the Constitution and applicable law.

Section 16 of the TIA, which previously governed the grant of bail in certain cases, was declared unconstitutional by the Supreme Court in Foundation for Human Rights Initiatives v Attorney General (Const. Appeal No. 3 of 2009) for contravening Articles 23(6), 28, and 20 of the Constitution. That landmark decision clarified the temporal limits for pre-trial detention and reinforced the constitutional guarantees of liberty and fair trial.

The recent Constitutional Court decision in Asingwire Alex Mukasa v Attorney General (Constitutional Petition No. 44 of 2022) [2025] UGCC 9 (8 August 2025), delivered by JA/JCC Esta Nambayo in August 2025, revisited the intersection between the Constitution, the bail guidelines, and judicial jurisdiction (mainly of the Magistrates Courts in Uganda).

The petitioner challenged the continued application of Section 16 TIA by magistrates’ courts despite its prior invalidation, and contested the constitutionality of Guidelines 10(2) and 10(3) of the 2022 Bail Guidelines, which restrict the grant of bail for offences triable only by the High Court to that court alone.

The Court’s decision reaffirmed the binding nature of Supreme Court precedent under Article 132(1), clarified the scope of jurisdiction in bail matters, and upheld the validity of the contested guidelines.

Facts

This petition was brought under Articles 50, 137(1) and 137(3)(a) of the 1995 Constitution of Uganda. The petitioner alleged that Sections 1 and 16 of the Trial on Indictments Act (TIA), Cap 23 contravene the right to a fair hearing and the presumption of innocence as guaranteed under Articles 28(1) and 28(3)(a) of the Constitution, Articles 4 and 11 of the Universal Declaration of Human Rights (UDHR), and Article 7 of the African Charter on Human and Peoples’ Rights (ACHPR).

The petitioner argued that:

Sections 1 and 16 of the TIA require that committal proceedings for capital offences be carried out in magistrates’ courts before the case can be heard in the High Court. Since magistrates’ courts have no jurisdiction to grant bail for capital offences, this procedure allegedly infringes the right to a fair and speedy hearing and the presumption of innocence.
The practice of automatically remanding suspects charged with capital offences for prolonged periods—over 480 days or 240 days—under the TIA violates Articles 28(1) and 28(3) of the Constitution, as well as Articles 4 and 11 of the UDHR.
Guidelines 10(2) and 10(3) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 unlawfully limit the power to grant bail for offences triable only by the High Court to that court alone, effectively amending Articles 2, 23(6)(b) and 23(6)(c) of the Constitution.

The petitioner sought declarations that these provisions were unconstitutional and null and void.

The petition was supported by the affidavits of the petitioner, Asingwire Alex Mukasa, and supplementary affidavits from Samandali Samuel, Nsubuga Godfrey, Ssentongo Paul, and Gukiina Patrick Musoke.

Issues for Determination:

Whether Section 1 of the Trial on Indictments Act (TIA) violates Articles 28(1) and 28(3)(a) of the Constitution regarding the right to a fair, speedy, public hearing and presumption of innocence.
Whether Section 16 of the TIA is inconsistent with Articles 28(1) and 28(3)(a) of the Constitution.
Whether Guidelines 10(2) and 10(3) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 conflict with Articles 2, 23(6)(b) and (c) of the Constitution.
Whether those Bail Guidelines effectively amend the Constitution.
What remedies are appropriate.

Petitioner’s Submissions:
The petitioner submitted that Section 1 of the TIA enforces automatic remand of suspects charged with capital offenses, infringing on the constitutional rights to presumption of innocence and a fair, speedy hearing.
Arraigning suspects before Chief Magistrates Courts, which lack jurisdiction to grant bail, causes undue delay and violates constitutional principles, including Article 126(2)(b) on justice without undue technicality.
Sections 1 and 16 of the TIA, together with the Bail Guidelines, disempower Chief Magistrates from granting bail, contrary to constitutional bail rights.
Automatic remand causes loss of livelihood and family breakdown, breaching various constitutional rights.
Called for the Court to depart from the precedent in Barihaihi and Anor v Attorney General (2019), as circumstances have changed (more High Court circuits now exist).
Argued for the necessity to take accused before courts with bail jurisdiction to avoid unconstitutional automatic remands.
Noted foreign jurisdictions (e.g., Kenya, Norway) do not have committal proceedings or automatic bail cancellation.
Requested declarations and orders to remedy the constitutional violations.

Respondent’s Submissions:
The respondent submitted that the constitutionality of Section 1 of the TIA was settled in Barihaihi and Anor v Attorney General, where the committal process was upheld.
that the petition raises no new questions; issues are barred by res judicata and the need for judicial finality.
Furthermore, the re-litigation of settled matters undermines the doctrine of precedent and the rule of law.
That the Court should dismiss the petition as the law has already been interpreted and decided.

Petitioner’s Rejoinder:
Contended that the Barihaihi precedent is outdated due to the expansion of High Court circuits.
Argued that the current situation calls for pre-trial processes to be held in the High Court, not Magistrates Courts.
Highlighted that Bail Guidelines 10(2) and 10(3) were enacted after the Barihaihi decision and thus not considered therein.
Maintained that automatic remand violates constitutional bail rights and has not been litigated upon fully.
Requested the Court to affirm that automatic remand under Section 16 of the TIA is unconstitutional.

Court Findings

1. Section 16 of the Trial on Indictments Act

The Constitutional Court held that the Supreme Court has already ruled on the constitutionality of Section 16 TIA in FHRI v Attorney General, declaring it null and void to the extent of its inconsistency with Articles 23(6), 28, and 20 of the Constitution.

Furthermore, under Article 132(1), the Supreme Court’s decision is binding, and the Court of Appeal (sitting as the Constitutional Court) cannot re-litigate the same constitutional question.

The proper remedy for alleged violations of rights—where there is no new constitutional interpretation required—is through Article 50 enforcement proceedings in the High Court, not a fresh constitutional petition.

Reliance was placed on Ismail Serugo v Kampala City Council (1999) and Jude Mbabali v Edward Ssekandi (2014), emphasizing the distinction between constitutional interpretation (within Constitutional Court jurisdiction) and enforcement of rights (within High Court jurisdiction).

Finding:

The matter was res judicata on account of the earlier Supreme Court decision. The petitioner should have sought enforcement of rights under Article 50 before the High Court rather than initiating a constitutional petition.

2. Bail Guidelines 10(2) & 10(3)

The Constitutional Court held that Article 23(6)(b) of the Constitution covers offences triable by both the High Court and subordinate courts—granting magistrates’ courts jurisdiction to grant bail after 60 days.

Furthermore, Article 23(6)(c) covers offences triable only by the High Court—granting jurisdiction to release on bail after 180 days only to the High Court.

That the term "court" in Article 23(6)(c) is clear and unambiguous; it refers exclusively to the High Court.

The Bail Guidelines do not amend the Constitution but merely reiterate and guide subordinate courts that only the High Court can grant bail for offences under Article 23(6)(c).

The court made reference to Attorney General v David Tinyefuza and Onyango-Obbo v Attorney General on principles of constitutional interpretation—provisions must be read harmoniously and words given their plain meaning.

Reaffirming the Barihaihi Case, the court confirmed that the High Court’s exclusive bail jurisdiction does not prohibit bail in capital offences but restricts which court may grant it.

Finding

Guidelines 10(2) and (3) are consistent with Articles 2, 23(6)(b), and 23(6)(c) of the Constitution and validly emphasize the High Court’s exclusive jurisdiction for bail in offences triable only by that court.

Decision

The petition was dismissed in its entirety.
No order as to costs was made.

Key Takeaways for Practitioners

Doctrine of Stare Decisis
Once the Supreme Court has ruled on a constitutional matter, lower courts are bound and cannot re-open the same issue.
Jurisdictional Clarity in Bail Matters
Magistrates’ courts cannot grant bail in cases triable only by the High Court; applications must be made directly to the High Court.
Enforcement vs. Interpretation
Allegations of ongoing violations of constitutional rights should be pursued under Article 50 enforcement proceedings, not fresh constitutional petitions, unless new interpretative questions arise.
Bail Guidelines Validity
The 2022 Bail Guidelines do not amend the Constitution but operate as interpretative and administrative guidance consistent with constitutional provisions.