Where an accused has already served over 180 days on remand before committal, the constitutional entitlement to apply for mandatory bail under Article 23(6)survives the act of committal. Court Rules
- Kiiza John Paul
- Apr 25
- 5 min read
Facts
The applicant, Nyirakamageri Vasta, aged 58, was charged with murder contrary to Sections 171 and 172 of the Penal Code Act, Cap 128. The charge related to the death of Nzabara Emmanuel, alleged to have been caused on 8 August 2025 at Kibaya Cell, Masiba Ward, Bunagana Town Council, Kisoro District. The applicant being the deceased's first wife.
A co-accused, Maniragaba Vincent (the deceased's son), was separately charged on the same indictment but was not party to this application.
The applicant was arraigned before the Kisoro Chief Magistrate's Court on 19 August 2025. She was committed to the High Court for trial on 27 February 2026, by which time she had been on remand for 192 days. No criminal session of the High Court was available to try her at the time the ruling was delivered.
Issues
Whether the applicant had established sufficient grounds for release on bail, including the mandatory bail threshold under Article 23(6)(c) of the Constitution.
Whether the applicant satisfied the exceptional circumstances requirement under Section 16(2) and (3) of the Trial on Indictments Act, Cap 25.
Legal Representation
Applicant
Mr. Nabaasa Rogers
A Marvin and Co. Advocates
Respondent
Mr. Isaac Onyango
State Attorney, Directorate of Public Prosecutions
Submissions of the Parties
Applicant
The applicant submitted, through her Notice of Motion and supporting affidavit, that she was entitled to release on bail pending trial. She averred that she had no record of prior conviction; that she had exceeded 180 days on remand before committal; that she maintained a fixed place of abode at Maziba Village, Bunagana Town Council, Kisoro District, where she lived as a peasant farmer; that she would not abscond, would not interfere with prosecution witnesses, and would not destroy evidence. She further stated that she had substantial sureties available to court.
In a supplementary affidavit of 7 April 2026, she additionally averred that she suffered from high blood pressure, a condition she contended could only be adequately managed through medication and proper diet at home.
Respondent
The State, through the affidavit of Rachel Nkwanzi sworn on 25 March 2026, submitted that bail ought to be refused. It contended that the offence charged attracted a maximum sentence of death, making the applicant a flight risk. It further submitted that the applicant had since been committed to the High Court, thereby overtaking the basis for mandatory bail pending committal.
The State also submitted that the applicant had not furnished proof of permanent residence; that the domestic nature of the offence made it likely she would interfere with witnesses; that the proposed sureties lacked sufficient control over the applicant; and that no exceptional circumstances within the meaning of Section 16(3) of the Trial on Indictments Act had been demonstrated.
Sureties
Three sureties were presented at the hearing. These were Nshimyana Edward, a graduate teacher employed by Muhabura Shine Secondary School; Twizerimana Annunciata, an enrolled midwife with Kisoro District Local Government; and Nkurunziza Emmanuel, a businessman. All three appeared in court and produced introduction letters from their respective Local Council authorities. The court found them to be substantial sureties.
Findings of the Court
The court found that the applicant had been on remand for 192 days prior to committal to the High Court on 27 February 2026, thereby satisfying the 180-day threshold for mandatory bail under Article 23(6)(c) of the Constitution. The court held that the fact of subsequent committal did not override the express constitutional language conferring the entitlement.
The court found that the State had not adduced tangible, substantiated or verifiable evidence that the applicant was a flight risk or likely to abscond, distinguishing the facts from Nkurunziza Elias v Uganda (Criminal Misc. App. 25 of 2025) where a demonstrated escape from police custody had founded refusal of bail.
The court agreed with the State that the applicant had not established a grave illness in the manner required by Section 16(3)(a) of the Trial on Indictments Act, namely a certificate from a medical officer at the place of detention confirming that the condition was incapable of adequate treatment in custody. No such certificate was tendered.
The court found that the applicant, born 1 January 1968 and therefore 58 years old, a fact not contested, was of advanced age. Applying Hon. Dr. Alex Kamugisha v Uganda (Misc. Cause No. 94 of 2007), the court affirmed that any age above 50 may constitute advanced age for purposes of Section 16(3)(c) of the Trial on Indictments Act.
The court declined to be bound by the definition of 60 years in the Constitution (Bail Guidelines) (Practice Directions) 2022, holding that definition was confined to its own instrument and did not bind the interpretation of the Trial on Indictments Act, which deliberately withheld a numeric threshold.
The court stated, applying Foundation for Human Rights Initiatives v AG (Const. Pet. 20 of 2006), that the word "entitled" in Article 23(6)(a) created a right to apply for bail, and not a right to be granted bail, while the word "may" preserved judicial discretion.
The court observed that satisfaction of the court constituted a high evidentiary burden, lower than the criminal standard of proof beyond reasonable doubt, but higher than a balance or preponderance of probabilities, and that there must be tangible, substantiated and verifiable evidence to meet it.
The court remarked that the definition of "advanced age" as 60 years in the Bail Practice Directions 2022 was confined to the interpretation of that instrument, and that the framers of the Trial on Indictments Act had deliberately withheld a specific numeric threshold, calling instead for judicial discretion.
The court noted that in the absence of a criminal session of the High Court available to try the applicant, the alternative to granting bail would be to deny it and fix trial at the next available session, a course it declined to take.
Order
Application for bail granted.
Cash bail: UGX 5,000,000
Each of the three sureties bonded at UGX 10,000,000 (not in cash)
Read the full case
By John Paul Kiiza
Lawpoint Student Ambassador
Key Takeaways
1 Where an accused has already served over 180 days on remand before committal, the constitutional entitlement to apply for mandatory bail under Article 23(6)(c) survives the act of committal. The fact of committal does not extinguish the right.
2 50 years and above may constitute "advanced age" for bail purposes under Section 16(3)(c) of the Trial on Indictments Act. The 60-year threshold in the 2022 Bail Practice Directions applies only within that instrument and does not govern statutory interpretation of the Act.
3 When objecting to the grant of bail, stating flight risk, the State must adduce tangible, substantiated and verifiable evidence to establish that an accused is a flight risk. General assertions or inferences drawn from the gravity of the charge alone are insufficient to meet the requisite standard of proof.
4 A claim of ill health, however genuine, will not satisfy Section 16(3)(a) unless supported by a certificate from a medical officer at the place of detention confirming the condition cannot be adequately treated in custody.
5 Sections 15 and 16 of the Trial on Indictments Act remain valid law. Despite the Constitutional Court's call in Tumushabe v AG (2004) for urgent legislative reform, these provisions were not struck down and continue to govern bail in High Court proceedings unless their unconstitutionality is specifically pleaded and proved in a given case.
6 Bail decisions must be grounded in evidence before the court. Guideline 13(1)(j) of the Bail Practice Directions 2022 factors, gravity, witness interference, and community safety, must be evaluated on actual evidence. Courts should not decline to weigh them but equally should not make adverse findings without an evidentiary foundation.
This alert is for informational purposes only and does not constitute legal advice. Prepared from the ruling of 17 April 2026.
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