KAMPALA — The decision by the International Crimes Division (ICD) of the High Court to grant bail to former Butambala County MP Muwanga Kivumbi and 15 of his co-accused has reignited debate over the constitutional right to liberty, the presumption of innocence, and the legal principles governing bail in serious criminal cases.
In a detailed ruling, the International Crimes Division emphasised that bail is not an acquittal or a declaration of innocence. Rather, it is a constitutional safeguard that allows accused persons to remain at liberty while awaiting trial unless the prosecution demonstrates compelling reasons for their continued detention.
The court granted Kivumbi cash bail of Shs10 million, while the other 15 successful applicants were each granted cash bail of Shs1 million. The release of six co-accused was deferred after the court found that their proposed sureties required further examination before they could be approved.
Bail is a constitutional right
Central to the court’s ruling was the constitutional principle that every accused person is presumed innocent until proven guilty by a competent court.
The judges observed that every person charged with a criminal offence has a constitutional right to apply for bail and that each application must be determined on its own merits rather than being rejected solely because of the seriousness of the charges.
The court further clarified that Ugandan law does not require an accused person to demonstrate “exceptional circumstances” before being considered for bail.
Instead, the court said the guiding principle is whether the applicant satisfies the legal requirements for release while ensuring the proper administration of justice.
Serious offences do not automatically bar bail
Although Kivumbi and his co-accused are facing terrorism charges before the International Crimes Division—among the most serious offences under Ugandan law—the court ruled that the gravity of the charges alone is insufficient to justify continued detention.
The judges held that while the seriousness of an offence is a relevant consideration, it cannot override the constitutional right to liberty in the absence of evidence showing that release would prejudice the trial or public interest.
“The seriousness of the charge alone was not enough to justify denial of bail,” the court observed.
No evidence applicants would abscond
A key factor in the ruling was the prosecution’s failure to demonstrate that the applicants posed a flight risk.
The court found that the applicants had established fixed places of residence within the court’s jurisdiction and that the prosecution had not produced sufficient evidence suggesting they would abscond if released.
In determining bail applications, courts ordinarily consider whether accused persons have known residences, family ties, employment or other factors demonstrating that they are likely to return for trial.
The judges were satisfied that these requirements had largely been met.
Court found no risk of interference
The prosecution also failed to convince the court that the applicants would interfere with witnesses, compromise investigations or obstruct the administration of justice.
The ruling noted that no evidence had been presented showing that any of the applicants had attempted to intimidate witnesses or tamper with evidence.
Similarly, the prosecution did not establish that the applicants had previously breached bail conditions or were facing other pending criminal proceedings that would increase the likelihood of reoffending.
Public safety concerns unsupported
The State argued that terrorism cases inevitably raise concerns regarding national security and public safety.
While acknowledging the public interest attached to terrorism prosecutions, the International Crimes Division held that such concerns must be supported by credible evidence rather than general assertions.
The court found that the respondent had failed to demonstrate that releasing the applicants would endanger the public or compromise community safety.
Without such evidence, the judges ruled, continued detention could not be justified on security grounds alone.
Trial has not yet begun
The court also considered the procedural stage of the case.
It observed that although the applicants face serious charges, they have not yet been committed for trial before the High Court.
The judges warned that prolonged pre-trial detention should not become punitive, noting that the constitutional presumption of innocence remains intact until guilt is established after a fair trial.
Consequently, the court concluded that the applicants should be allowed to prepare their defence while on bail, subject to strict conditions imposed by the court.
Six applicants await approval of sureties
Although the court granted bail to 16 applicants, it deferred the release of six others pending verification of additional sureties.
The court stressed that it had not refused bail to the six applicants but merely postponed their release until satisfactory sureties are presented.
Those whose release was deferred are:
- Kayanja Kelvin
- Ssewanyana Brian
- Muwanguzi Brian
- Akankwasa Ivan
- Yusuf Ramathan Kiwanuka
- Owori Brian
Once the court is satisfied with their proposed sureties, they may also be released on bail under the same ruling.
Significance of the ruling
Legal analysts say the decision reinforces long-established constitutional principles governing bail, even in cases involving grave offences such as terrorism.
The ruling underscores that courts must balance the rights of accused persons with the interests of justice by relying on evidence rather than the seriousness of allegations alone.
It also reaffirms that pre-trial detention should not serve as punishment before conviction and that the burden rests on the prosecution to demonstrate why an accused person should remain in custody.
For Kivumbi and his co-accused, the ruling means they will continue to face terrorism charges before the International Crimes Division while on bail, subject to compliance with the conditions imposed by the court. The substantive criminal proceedings will continue until the case is heard and determined on its merits.
