High Court Judge Paul Gadenya Wolimbwa has ruled that courts must release accused persons who spend more than 180 days on remand without being committed to the High Court for trial.
Justice Gadenya made the finding in two separate bail decisions involving suspects facing murder, aggravated robbery and attempted murder charges.
The judge also held that applicants seeking mandatory bail under Article 23(6)(c) of the Constitution do not have to prove exceptional circumstances.
Once the constitutional remand period expires, he said, the court can only determine reasonable conditions for release.
“Article 23(6)(c) provides that a person arrested for an offence triable only by the High Court, who has been remanded in custody for one hundred and eighty days before the case is committed for trial, is entitled to apply for release on bail, and that the court shall release that person on such conditions as the court considers reasonable,” Justice Gadenya ruled.
He said the constitutional provision creates both a right to apply for bail and a binding duty upon the court to release the applicant.
“Once an accused person has spent more than 180 days on remand without committal, the court has no choice but to release the person on reasonable conditions,” the judge said.
Suspects remained on remand without committal
One of the successful applications was filed by Marijani Swaibu, who faces charges of aggravated robbery and murder.
Authorities arrested Swaibu on November 3, 2024, and detained him at Kabalagala Police Station.
He first appeared before the Makindye Chief Magistrate’s Court on December 11, 2024. He had remained on remand at Luzira Upper Prison as investigations continued.
The case repeatedly returned to the magistrate’s court for mention but had not been committed to the High Court for trial.
The second ruling involved Abdul Nsereko, who faces charges of aggravated robbery and attempted murder.
Nsereko was arrested in Bwaise and charged before the Nabweru Magistrate’s Court on July 3, 2024.
Like Swaibu, he remained on remand beyond 180 days without committal to the High Court.
DPP opposed mandatory bail applications
The Director of Public Prosecutions opposed both applications.
Prosecutors argued that the applicants faced offences punishable by death and therefore presented a high risk of absconding.
The DPP also said the suspects had not demonstrated exceptional circumstances or sufficiently proved that they had fixed places of residence.
Prosecutors cited the absence of documents such as land titles and utility bills.
They further argued that investigations remained incomplete and that releasing the applicants could expose witnesses to interference.
Justice Gadenya rejected those objections.
He ruled that the seriousness of the charges, concerns about flight and the risk of witness interference could influence bail conditions. However, those factors could not defeat the constitutional right to release after 180 days.
“The entitlement is settled by Article 23(6)(c) itself and what this court decides is downstream of it,” the judge ruled.
He said earlier Constitutional Court decisions had also recognised bail as an important part of the rights to liberty and human dignity.
General concerns about serious offences or public safety, he added, could not override an express constitutional protection.
Exceptional circumstances not required
Justice Gadenya rejected the prosecution’s argument that the applicants had failed to demonstrate exceptional circumstances.
He said exceptional circumstances apply to discretionary bail applications filed before the constitutional remand period expires.
They do not apply when an accused person has spent more than 180 days in custody without committal.
“Exceptional circumstances, as elaborated in Direction 14(2) of the Bail Guidelines, are relevant to a discretionary application for bail by a person charged with a grave offence before the constitutional remand period has run,” he ruled in Nsereko’s case.
“They have no place in an application under Article 23(6)(c), whose purpose is that, once one hundred and eighty days have passed without committal, the applicant need show nothing more than the fact of that lapse.”
The judge also rejected the argument that an applicant must own the residence where they live.
He said neither the Constitution nor the Bail Guidelines requires an accused person to produce a land title or utility bills.
Direction 12 of the Bail Guidelines requires an applicant’s particulars, a national identity card and an introduction letter from the Local Council chairperson where the person resides.
Parliament reduced remand period in 2005
Justice Gadenya said Parliament’s decision to amend the Constitution supported his interpretation of the mandatory bail provision.
Before the Constitution Amendment Act of 2005, suspects facing offences triable only by the High Court could remain on remand for up to 360 days before qualifying for mandatory bail.
Parliament reduced that period to 180 days.
The judge said the amendment showed that lawmakers considered the earlier period too generous to the state and too tolerant of delays.
“A provision deliberately tightened in this way is not one a court should approach as though it retained an unspoken discretion to relax it again by another route,” he ruled.
Justice Gadenya said Parliament had already considered the seriousness of capital and High Court-only offences when it set the 180-day period.
Offences that can be tried by either the High Court or magistrates’ courts have a shorter constitutional remand period of 60 days.
Courts could not reconsider Parliament’s decision by denying or delaying release because of the gravity of a charge, the judge said.
Bail conditions must remain affordable
Justice Gadenya also ruled that courts must not impose conditions that make mandatory bail impossible to secure.
He said bail terms should ensure that an accused person attends trial and does not interfere with proceedings.
However, the conditions must remain proportionate to the applicant’s circumstances.
“A bond or surety requirement set at a level the applicant cannot conceivably meet defeats the very right the Constitution has conferred, since mandatory bail granted in name but rendered practically unattainable is no bail at all,” he ruled in Swaibu’s case.
The judge said courts must consider what an individual applicant can realistically provide when determining the value of a bond and the number or standing of sureties.
Justice Gadenya granted Swaibu and Nsereko non-cash bail of Shs10 million each.
Each applicant presented two sureties, who were bonded at Shs5 million each, also on a non-cash basis.
Decisions could affect other prolonged remand cases
The rulings contrast with previous decisions in which courts denied bail to suspects who had spent more than 180 days on remand without committal.
Courts have previously cited the seriousness of charges, incomplete investigations, flight risk and possible witness interference when rejecting such applications.
In a televised address on Saturday, July 4, 2026, President Yoweri Museveni said courts could deny bail to people he described as “opposition lawbreakers” because they might interfere with witnesses.
Many accused persons, including opposition politicians and other detainees, have remained on remand for months or years before committal to the High Court.
Several have also had earlier bail applications rejected.
Justice Gadenya’s decisions reaffirm that once an accused person crosses the 180-day constitutional threshold without committal, the court must order release on reasonable conditions.
