Principle

Bail – Bail pending Appeal – inherent powers of High Court to grant bail—Appeal arising from the General Court Martial.

Case Summary and Outcome

The Applicant was summarily tried and convicted by the General Court Martial for the offence of contempt of court. He lodged an appeal to the Court Martial Appeals Court but, before the appeal could be heard, the Supreme Court delivered its judgment in Attorney General v Hon. Micheal Kabaziguruka, Constitutional Appeal No. 21 of 2021, where it declared the trial of civilians in the courts martial unconstitutional and directed that all files pertaining to civilians be transferred to the civilian courts. The Applicant then lodged an appeal to the High Court and filed an application for bail pending appeal, which was allowed.

Facts

The Applicant is a human rights lawyer. He appeared before the General Court Martial to represent his clients, Dr. Kizza Besigye and Obeid Lutaale, but was blocked from accessing the bar by military officers.

He insisted on accessing the bar, but in the process, he was arrested and arraigned in the dock together with his clients. The Applicant was later summarily tried, convicted for the offence of contempt of court, and sentenced to 9 months imprisonment at Kitalya Mini-Max Prison.

He appealed against the sentence and conviction to the Court Martial Appeals Court. However, before the determination of his appeal, the Supreme Court delivered its judgement in Attorney General v Hon. Micheal Kabaziguruka, Constitutional Appeal No. 21 of 2021, where it declared the trial of civilians in the courts martial unconstitutional and directed that all active files be transferred to the civilian courts.

Pursuant to the orders of the Supreme Court, the Applicant filed Criminal Appeal No. 31 of 2025 to the High Court and applied for bail pending appeal. The High Court heard the bail application and released the Applicant on bail pending appeal.

Issues

Two issues were canvassed by the Court in reaching the decision:

1. Whether the High Court has jurisdiction to hear the Applicant’s bail application pending appeal, given the Supreme Court’s ruling in Kabaziguruka that courts martial lacked jurisdiction over civilians.
2. Whether the Applicant met the criteria for bail pending appeal, considering factors such as the likelihood of success of his appeal, potential delay in hearing the appeal, his character, and the suitability of his sureties.

Holding

Court granted bail to the Applicant pending hearing and disposal of his appeal against the conviction and sentence of the General Court Martial. The court held that it had jurisdiction to hear the matter, based on its inherent powers under the Constitution and Judicature Act. The Applicant was released on a cash bond of UGX 20 million and ordered to deposit his passport with the Registrar of the Court while the sureties bonded on UGX 50 million each (non-cash).

Reasoning of Court

The Court relied on Article 139(2) of the Constitution, which gives original unlimited jurisdiction to the High Court and the orders of the Supreme Court in Attorney General v Hon. Micheal Kabaziguruka to find that it had the powers to entertain the application for bail since the Courts Martial are subordinate to the High Court.

The Court further reasoned that since there is no specific Act of Parliament that has conferred Jurisdiction on the High Court to handle appeals from the General Court Martial, the Judicature Act allows the High Court to exercise appellate jurisdiction conferred on it by the Constitution. The Constitution, by virtue of Article 139 (2), bestows a wide appellate jurisdiction on the High Court to handle appeals from any court lower than the High Court in the hierarchy of courts.

Therefore, because the High Court is a Court superior to the General Court Martial, it is seized with a broad appellate mandate over the General Court Martial.

Secondly, the unclear process for transferring cases from military to civilian courts could delay the appeal, risking the Applicant serving his full sentence before a decision. His fixed abode, substantial sureties, and lack of prior criminal record further supported granting bail pending appeal.

The sentence itself in the face of Section 171(2) of the UPDF Act has a reasonable possibility of success because when the applicant was sentenced to nine (9) months in prison, he was given an illegal sentence, namely, one that exceeds the maximum prescribed by the same law. Thus, it was fair and equitable to release him on bail pending the determination of the appeal.

Significance of the Case

This decision re-emphasizes the findings of the Supreme Court in Attorney General v Hon. Micheal Kabaziguruka case that the Courts Martial are subordinate to the High Court and such powers extend to supervision and grant of bail to civilians that have been convicted or are still undergoing trial at the Courts Martial.