By BRENDA NANYUNJA

 

On Tuesday, May 15, 2018, David Chandi Jamwa, the former National Social Security Fund (NSSF) Managing Director, was released on bail by the Supreme Court of Uganda, Kampala.  Jamwa is facing charges of corruption: cause of financial loss contrary to Section 20 of the Anti-Corruption Act.  He was charged in the Anti-Corruption Division of the High Court and was sentenced to twelve years in jail.  He appealed the decision in the Court of Appeal and also applied for bail.  The bail was granted but he was re-incarcerated upon losing his appeal early in 2018.  Jamwa then appealed to the Supreme Court and also applied for bail.  It was granted.  To some, How can a man who has been convicted by the High Court and had his conviction confirmed by the Court of Appeal be set free on bail?

 

What is Bail Pending Appeal?

 

Bail is provided for under Article 23(6) of the Constitution of the Republic of Uganda.  Mr. Jamwa’s release is a rather interesting phenomenon because it exemplifies the legal concept of “bail pending appeal.”  His High Court conviction was upheld by the Court of Appeal, which saw his bail lifted.  Bail pending appeal is a legal process under Sections 132(4) of the Trial on Indictments Act and 40(2) of the Criminal Procedure Code where the appellate court has a mandate to grant a convict bail so long as the penalty being appealed is not a death sentence. This concept differs from “normal” bail, because “normally”, a bail applicant has not yet been declared guilty.  Whilst for bail pending appeal, the applicant has already been declared guilty.

The theoretical basis for the concept of bail is that the applicant is the only person capable of preparing their own defence and, of course, is believed to be innocent until proven guilty.  However, upon conviction, the presumption of innocence ceases. The Court in Arvind Patel vs Uganda S.C.C. Application N0. of 2003, laid down the legal framework for deciding whether or not an applicant is entitled to bail pending appeal.  The Court must scrutinize the character of the applicant; ask whether he or she is a first offender; ask whether the offence in question occasioned personal violence; measure the absence of frivolity and the reasonable possibility of success; and estimate the time the determination of the appeal is likely to take. A combination of at least two of these criteria may suffice to serve as a grounds for granting bail pending appeal.

 

The Grant of Bail

 

Jamwa argued (1) that he was a first time offender who had complied with his previous bail conditions; (2) that his offence did not cause any personal violence; (3) that he had presented substantial sureties; (4) that his appeal had a high likelihood to succeed; and (5) that the appeal was likely to delay.

In his first application, his bail was granted by Lady Justice Stella Arach Amoko, due to the fact that he had observed the first bail conditions, had substantial sureties, that the trial would take a long time before its conclusion and that he posed a good ground to succeed.

Lady Justice Amoko premised the grant on the poor health of the applicant, taking judicial notice of the fact that Jamwa was very likely to suffer cardiac arrest while in jail.  His satisfaction of the bail conditions warranted the award.  His release was conditioned upon a cash bond of ten million Ugandan Shillings (to be released upon determination of the appeal), a 500 million Shilling non-cash bond for each of six sureties, his passport, and the registered tile of his wife’s land, who also is a surety.

 

Corruption in Uganda

 

In Uganda, corruption is not necessarily a legal term but rather a social construct – a perception that is not necessarily reflected in Ugandan law.  Individuals who are in distinct situations that make them prone to corruption are deemed to be corrupt by the public.  These are normally referred to as Politically Exposed Person (PEPS).  Cases that ordinarily would fall under the guilty line but amount to moral corruption are perceived as full-blown corruption.  The public decided that Jamwa was guilty long before his trial, and they believe that bail of a convicted criminal leaves the door open for impunity.

A grant of bail pending appeal is not an acquittal.  It is granting the applicant freedoms until his/her final fate is determined.  Jamwa’s bail pending appeal at the Court of Appeal lapsed when his sentence was confirmed.  The same will be applicable if the Supreme Court upholds the previous conviction, and the twelve year sentence will automatically start to run.