Ali Fadhul v Uganda (Criminal Miscellaneous Application 1 of 1991) [1992] UGHC 70 (14 April 1992)

THE REPUBLIC OF UGANDA. IN THE HIGH COURT OF UGANDA AT KAMPALA MISC. CREHIMAL APPLICATION NO. 1 OF 1991

Justice Egouda Alter

AND IN THE MATTER OF CHIEF MAGISTRATE'S COURT BUGANDA RD. ORIGINAL ORIMINAL CASE NO. 279/88

APPLICANT ALI FADHUL :::::::::::::::::::::::::::::::::::: VERSUS

. . . . . . . . . . . . . . . . . . . RESPONDENT. **UGANDA** The Honourable Mrs. Ag. Justice M. Kireju. BEFORE: RULING.

This is an application for bail brought by Ali Fadhul who is charged with murder contrary to S.183 of the Penal Code. It is grounded on S. 14B(a) of the Trial on Indictments Decree as amended by statute 5/1990. It is supported by an affidavit sworn by the applicant dated 8/1/91. The applicant seeks to be released on bail because he has been on remand for over 480 days.

Mr. Elue, counsel for the applicant submitted that the grounds of the application were contained in paragraphs 1 - 9 of the affidavit. That the applicant has been on remand pursuant to the order of the Supremo Court of Uganda dated 24/12/90 where the applicant's appeal No. 30 of 1989 was allowed, the sentence of death passed against him in the High Court Criminal Session No. 35/82 get aside and a retrial ordered. That the applicant has never been retried and has been on continous remand for more than 5 years now. That there is no occassion when the accused was released on bail and jumped if, and that there are no other pending charges against him.

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Mr. Elue presented two sureties, the first one is Mr. Clement. Coorge Adama, aged 54, years married with several children. He is a senior Civil Servant working as Principal Finance Officer in the Ministry of Finance. He has been in Govenment Service since 1959. He served as a prosecutor in the DPP's office between 1964 - 1970. Ne was executive secretary of Departed Asians Properties Custodian Board from 1985 - 1986. He is RC.1 chairman Kololo village I and lives at Plot 28 Acacia Avenue Kololo. He is a friend of the accused and has known him since 1961. The second surety is Mr. Philip Jathum Chonbe, aged 41 years and works with Chritex General Herchadise and Garment Industry as an accountant. He resides at Nakawa Ho sing Estate KR. 38 and he is the brother in law of the accused.

Counsel further submitted that there was no cog at reason why it has taken so long for the state to / the case, that inquiries are complete witnesses are available, That the only plausable explanation is that the state is not interested in the case. He submitted that the accused his a permanent home at Bulamagi, Mukono District and when released on bail he is not likely to abscond. Counsell proved that the applicant be released on buil and when the state gets organised he can be tried.

Mr. Ojok, for the state submitted that his instructions were to oppose the release of the applicant on bail. That the applicant is charged with murder contrary to S.183 of the Penal Code, he was tried and sentenced to death but on appeal, his appeal was allowed and the Supreme Court ordered a retrial. He contended that the DPF has since been ready to have the accused retried but the problem has been relying with the judiciary and that blame cannot be thrown on the DPP's department which has no power of fixing cases for trial. He referred court to page 5 of the gupreme gourt judgement where the

court stated that;-

" . As-, the trial of .'the- appellant was dcfoctivc it is- .ordered/that her shall 'be rvtripd-. by. another judge.as s.oon- : as is practicable• In the''meanti.me h icj'.to be romoridod in, custody" ,

Counsel submitted- that.the. responsibility lies with the Registrar Crimd to fix. the case, for retrial\*

bail' conditions•' On release on b?.il counsel for the State submitted that no justifiable grounds, have been advanced' for his release on bail\* -'On the condition whether the applicant is likely to return to face his trial if released' on bail, .counsel contended that no guar ntee has- been , presented before" court. That ''although .the sureties appear to be substantial <sup>9</sup> that by the. nature of their work they appear -.to be busy- '• people who may not bo able to koo,p:- track of the accused. That secondly y.'Zstay. in Kampala while - the accused stays' in Mukonb District, • that: ' y.may- fail to 'keep'-'tr-clc of the applicant and make sure ' that Jhe -obeys

oe retried of th <sup>&</sup>gt; same. offv\_ncb , t ?at- .this could, still work on his mind Ar.d make- him ab'scond. That . the applicant, is<awar:e. of the witnesses-, / b. :£e-■likely to- testify •'dg-'inat him. and that- it would not- beain;the; sre-'st of justice to''Have/him .at -large.' ' ; . \ . i ' : Counsel further submit^ted that even though the death sentence,• inst the' applicant was quasjiod arid conviction set aside, -he is, to

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Counsel in conclusion submitted- that .the delay-in the retrial .of , ppiican,t is no t boi , s .caused .by DPP 'but- by the . Judiciary that; •'/ • t. the. court - should do ?is: ,to direct.-the Registrar to-/ensure immediate. <sup>1</sup> of the .'applicant as th-oy-arp.'ready for then hearing. <sup>1</sup> ■'He. that the application' for release. on bail be .dismissed injthe

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Mr. Elue in reply submitted that justice was not one way traffic, that he agreed that the general good should be protected but this must be balanced with the good of the / person. That there is no may the state can justify failure to conduct a trial for over one year. That the applicant is at the mercy of the state and the only way court can amoliorate him is to release him on bail. 'The sureties were men of sustance, that they will make sure that he appears for his trial and abides by the conditons the court may impose.

I have consindered all the points raised by counsel for the applicant and counsel for the state and I make the following observations;

The main ground of this application is that the applicant has been on remand for a continous period of over 5 years. The application is brought under S.14B(a) of Tial on Indictment Decree of 1971 as amended by statute 5/90 and is as follows;-

"If an accused person has been remanded in custody before the commercement of his trial;-

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(a) In respect of any offence punishable by death, for a contineuos period exceeding. for hundred and eighty days; or

The judge before whom he first appears after the expiration of the relevant period shall release him on bail on his own recognisance, notwithstanding that he is accused of an offence referred to in section $14A(1)$ , unless;

> (i) he has, prior to the expiration of that period, been committed to the High Court for trial, or

(ii) The judge is satisfied that it is for the protection of the public that he should not be released from the custody. ""

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My humble interpretation of the above provisions is that an accused person must be on continous romand before the commencement, of his trial for a period of more than 480 days. The applicant in this case wes arrested on 10/9/86, more that five years ago and therefore according to him he has been on remend for a continous period of more than 480 days. However, I wish to state home that the applicant, was committed to High Court for trial, he was tried, sentenced and he ap caled against the gentence which was set aside on 24/12/90 and a new trial was ordered. It is my considered view that the period of remand started running again on $24/12/90$ when the first trial was set aside. The words "before commencement of his trial" appearing in S.14B cannot be interpreted to refer to the first trial. The remand in respect of this case should now start from 24/12/90 when the Supreme Court gave its ruling and ordered the accused to be remanded in custody. It would not be just to treat this case as if it has never been tried. Turning to the present application I find that from the date the applicant was remanded on $24/12/90$ to the date when this $\sqrt{2}$ application was heard the applicant had been in custody for a continous period of 468 days which puts the applicant 12 days before the statutory period.

Inspite of the above lacuna, I shall consider other grounds put forward by the applicant. The submission that the applicant had a permanent home at Bulamagi Mukono District, that he has never jumped bail and that he has no other charges pending against him were not disputed by the state and I also have no reason to querry them. The applicant also offered 2 sureties who appeared to be responsible citizen with jobs and permanent homes and they sound to be in position to make sure that the applicant complies with bail conditions. However, the state counsel had expressed

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fear that, the proposed sureties lived far from the accused and they were also busy people and may fail to keep track of him. I am convinced that the proposed sureties being responsible people would find a way. of monitoring the applic nt and making sure that he complies with bail conditions if any.

Normallly before bail is granted to an accused person, the court must satisfy itself that the accused will appear for his trial. A part from the above conditions already considered the court must also. also consinder the gravity of the offence, and in doing so each case murt be considered on its own facts. The facts of this case show that the accused was tried for an offence of murder, he was convicted and mentanced to death however on appeal the sentence was set aside and a retrial ordered. The applicant knows in minute detail all the vidence against him and all the vitnesses. Considering the gravity and seriousness of the offence and circumstances of this case, it may not be in the interest of justice to release the accused on bail ne, as the temptation to abscond is high now that he knows there. evilence against him.

However, I wish to turn now to the delay in prosecuting this case. (0) As already stated this is a case for retrial, both perties are ready $\bigcirc) \supset$ to proceed but for some reasons this case has not been fixed for hearing as yet. The accused person is entitled to an expeditious trial, he should not be left to languish on remand indefinatly. On the otherhand the state cannot be blamed for the delay in re-trying this case. In the interest of justice I am inclined to rule that the ctatus quo sh uld be maintained since non of the parties is really to blome for it.

In summary this application for bail is denied for the following reasons,

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- $(1)$ the application is premature as the statutory period required under S. 14B(a) has a t yet expired. - gravity<br> and seriousness of the offence and the $(2)$ Because of the circumstances of the case; the chances of the accused absconding are high and it would therefore not be in the interest of justice to release him on bail. - (3) The delayed re-trial of the case cannot be blamed on either party as it is obvious that it is the judiciary which is not ready to get on with the case due to logistic problems. In conclusion, the Registrar (Crime) is direct d to make every effort within remonible time to have this case fixed for he ring at the next High Court Session in Mbarara. Meanwhile this application stand dismissed.

Ag. $J U D G E$ . $14/4/92$

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Ruling delivered

Mr. Elue - for the applicant Applicant present

The State - unrepresen ed

Migs Donart Nakiwondo - Court Clerk.

JUDGE. Ag.

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