Magistrate courts now have powers to grant bail for specific serious offences

JUSTICE | Magistrates now have the powers to charge and grant bail to suspects facing two serious offense, a move the Judiciary hopes will ease on case backlogs.

In a majority judgment of 4:3, the Supreme Court last week ruled that the lower courts (magistrate courts) can now hear offences that involve manufacturing/ assembling of fire arms or importation or exportation of fire arms without a licence and cattle rustling.

However, the decision of the highest court in the land did not give blanket powers to the magistrate courts to hear bail applications involving all capital offenses like murder, terrorism, treason, rape, aggravated defilement among others.

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The appeal that partly succeeded without costs was filed by Foundation for Human Rights Initiative (FHRI) after being dissatisfied with the decision of the Constitutional Court in 2006.

While ruling on the issue of handling bail application involving cattle rustling and assembling of fire arms, Justice Esther Kisaakye Kitimbo, who wrote the lead judgment, held that since the lower courts have the power to hear the aforementioned offenses, then logic would have it that the same courts can hear bail.

“Under Section 266 of the Penal Code Act, cattle rustling are punishable by a sentence of imprisonment for life. This puts the offense of cattle rustling under the jurisdiction of the Chief
Magistrates Court,” Justice Kisaakye said.

“However, Section 75 (2) (C) excludes Chief Magistrates from hearing a bail application with respect to an accused person charged with this offense.

“In my analysis of Article 23 (6) of the Constitution, I found that the court with jurisdiction to hear/try an offense, has power to grant bail in respect of that offense. In this case, the court referred to is a chief magistrate’s court which has the jurisdiction to try this offense.”

The lead judge further held that the exclusion renders Section 75 (2)C of the Magistrates Court Act (MCA) inconsistent with Article 23 (6) of the Constitution because it curtails an accused person the right to apply for bail before a court that has jurisdiction to hear the offense of cattle rustling.

Turning onto the offenses under the Firearms Act as amended, Justice Kisaakye held that only two offenses fell within the jurisdiction of the Chief Magistrate.

She named such offences as manufacturing or assembling of firearm or ammunition and importation or exportation of firearms without a license whose maximum sentence is life imprisonment.

“Given my findings in respect of Section 75 (2) C & d of the MCA and bearing in mind Article 274 of the Constitution, it follows that since a chief magistrate has power to try the offence of cattle rustling and
importation and exportation of fire arms or ammunition without a licence, they have the power to consider bail applications in respect of these offenses,” ruled Kisaakye.

Likewise, while ruling on whether the magistrate courts should hear bail concerning other capital offenses like rape, terrorism, aggravated defilement, Justice Kisaakye observed that the lower courts
don’t have jurisdiction to try the same, hence they cannot also hear their bail applications.

“With regard to these offences, I note that a magistrate court does not have jurisdiction to try them. It would therefore follow that since the jurisdiction to try these offenses is vested in the High Court, then the power to grant bail in respect of these offenses was also rightly vested in the High Court,” Kisaakye said.

“Section 75 (2) of the MCA, therefore, rightly excluded these offenses from those over which magistrate courts have power to grant bail. I therefore, find nothing unconstitutional about section 75 (2) (a), b, & e which excludes a magistrate’s court from granting bail in respect of offenses triable only by the High Court.”

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