Ariong v Uganda (criminal miscellaneous Application 104 of 2024) [2025] UGHC 224 (14 April 2025)

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT SOROTI CRIMINAL MISC. APPLICATION NO. 104 OF 2024 (ARISING OUT OF SESSION CASE NO. 109 OF 2024) ARIONG FRANCIS :::::::::::::::::::::::::::::::::::: **VERSUS**

UGANDA :::::::::::::::::::::::::::::::::::

## **BEFORE: HON. JUSTICE BONIFACE WAMALA RULING ON BAIL**

#### **Introduction**

[1] Ariong Francis (the applicant) was charged with the offence of Aggravated Defilement contrary to section 129(1), (3) & (4)(a) [now section 116(1), (3) & (4)(a)] of the Penal Code Act (PCA), Cap 128. It is alleged that the applicant on 13<sup>th</sup> April 2024 at Amosingo Village, Akadot Parish, Kadami Sub-county in Kumi District, performed a sexual act with Akello Lucy, a girl aged eight (08) years.

[2] The applicant brought this application by Notice of Motion under Articles 23(6)(a) and 28(3) of the Constitution of the Republic of Uganda and Section 14(1) [now section 15(1)] of the Trial on Indictments Act, Cap 25 (TIA) seeking for an order that he be released on bail pending his trial by the High Court.

[3] The grounds of the application are summarized in the Notice of Motion and also set out in the affidavit in support of the application deposed by the applicant. Briefly, the grounds are that the applicant was arrested, charged and detained at Kumi Government Prison. He was later committed to the High Court at Soroti and was subsequently remanded to Soroti Government Prison. He is not certain as to when his case will be cause listed for trial. The applicant states that he has a constitutional right to apply for his release on bail and the court has the power to grant him bail. He is a first time offender without any

$\mathbf{1}$

previous criminal record. He also stated that he will not abscond on bail if released. He has presented two substantial sureties who are ready and willing to stand for him. He has a permanent place of abode as indicated in the affidavit in support. He concluded that it is in the interest of justice that the application is granted.

[4] The application was opposed through an affidavit in reply deposed by $Ms$ . Lunyoro Stella Maries, a State Attorney C/O ODDP Soroti Office, who stated that the offence of aggravated defilement with which the applicant is charged attracts a maximum penalty of death upon conviction, which fact is within the knowledge of the applicant and is likely to influence him to abscond in case he is released on bail due to fear of the severe sentence in case he is convicted. She stated that although the applicant has a constitutional right to apply for bail, the power to grant bail remains a preserve of the Court. She further stated that if released on bail, the applicant is likely to interfere with key prosecution witnesses who are currently not under any protection. The deponent stated that the prosecution is ready with its witnesses to proceed if the case is scheduled by the Court for hearing. She also stated that the details of the sureties do not prove that they are substantial justifying their compliance with the conditions that might be imposed by the court for the release on bail. She stated that the 3<sup>rd</sup> surety resides in Serere District which is very far from Kumi District. The applicant has not attached any letters or agreements or land title to show that he has a permanent residence in the mentioned place. She further averred that the applicant had not demonstrated that he has exceptional circumstances justifying his release on bail. She concluded that it is in the interest of justice that the bail application is denied and the case be fixed for hearing in the next convenient session.

**Representation and Hearing**

[5] The applicant was represented by Mr. Okwalinga Justin from M/s Natala & Co. Advocates while the respondent (State) was represented by Ms. Adero Doreen from the Office of the Director of Public Prosecutions (ODPP). The hearing proceeded by way of written submissions which were duly filed by both counsel and have been adopted and relied on by the Court.

[6] The issue for determination by the Court is whether the applicant has established sufficient grounds for his release on bail.

### Resolution by the Court

[7] Bail is an agreement between the court and an applicant consisting of a bond, with or without surety, for a reasonable amount as the circumstances of the case permit, conditioned upon the applicant appearing before such a court on a date and time as named in the bond to attend his/her trial. See: Section 15(1) of the Trial on Indictments Act, Cap 25 and Uganda v Lawrence Luzinda 1986 (HCB) 33.

[8] The foundational basis upon which the court is enjoined to exercise its discretion to allow or reject an application for bail is the presumption of innocence, based in law and particularly on Article 28(3)(a) of the Constitution. Article 28(3)(a) of the Constitution of the Republic of Uganda provides that "every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty or until that person has pleaded guilty". This legal position is also based on Article 11(1) of the Universal Declaration of Human Rights and Article 14(2) of the International Covenant on Civil and Political Rights.

[9] Under Article 23(6)(a) of the Constitution, it is provided that where a person is arrested in respect of a criminal offence, he/she is entitled to apply to the court to be released on bail, and the court may grant that person bail on such

$\overline{3}$

conditions as the court considers reasonable. As such, the core aspects to be taken into consideration by the court when dealing with an application for bail are the presumption of innocence of an accused person, the right of the accused person to apply for bail, and the discretion of the court to either grant or reject the bail application.

[10] When exercising discretion to grant or refuse bail, the court is given further guidance through The Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions 2022, which under paragraph 5 thereof sets out the following general principles to be taken into account by the court when considering a bail application, namely;

- a) the right of an applicant to be presumed innocent as provided for in article 28(3) of the Constitution; - b) the applicant's right to liberty as provided for in article 23 of the Constitution: - c) the applicant's obligation to attend trial; - d) the discretion of the court to grant bail on such terms and conditions as the court considers reasonable; and - e) the need to balance the rights of the applicant and the interest of justice.

[11] Under Section 16(1) of the Trial on Indictments Act, the High Court may refuse to grant bail to any person charged with any of offences stipulated under Section 16(2), aggravated defilement being one of them, unless such applicant proves, to the satisfaction of the court, that he or she will not abscond when released on bail and that exceptional circumstances exist justifying his or her release on bail. However, under the law, an applicant for bail is no longer required mandatorily to plead or prove exceptional circumstances following the decision of the Constitutional Court in Foundation for Human Rights Initiatives v Attorney General, Constitutional Petition No. 20 of 2006 wherein it was held that it is no longer mandatory to prove exceptional circumstances given the fact

that the courts have the discretion to grant bail even when none is proved. In *Uganda v Kizza Besigye, Constitutional Reference No. 20 of 2005 the Court held* that both "High Court and subordinate courts are still free to exercise their discretion judicially and to impose reasonable conditions on the applicant" in an application for bail.

[12] On the case before me, the applicant's bail application has been opposed by the respondent on the following grounds;

- (i) The applicant is likely to abscond from bail since he has not proved that he has a permanent place of residence and has not produce substantial sureties. - (ii) The applicant is likely to interfere with key prosecution witnesses who are his close relatives and are currently not under any protection; and (iii) It is in the interest of justice that the bail application is denied.

[13] Regarding the possibility of absconding the applicant if released on bail, it is provided under Section 16(4) of the TIA that in considering whether or not the accused is likely to abscond, the court may take into account the following factors;

- a) whether the accused has a fixed abode within the jurisdiction of the court or is ordinarily resident outside Uganda; - b) whether the accused has sound sureties within the jurisdiction to *undertake that accused shall comply with the conditions of his or her bail;* - c) whether the accused has on a previous occasion when released on bail *failed to comply with the condition of his or her bail; and* - *d) whether there are other charges pending against the accused.*

$[14]$ On the evidence before me, it was claimed by the applicant that he has a fixed place of abode at Aojamorok Village, Aojamorok Parish, Kadami Subcounty in Kumi District. The applicant produced his National Identity Card and

a copy of a letter from the area L. C 1 Chairperson. I am unable to accept the suggestion by the respondent's counsel that in order to prove possession of a fixed place of abode, a person needs to adduce evidence of land sale agreements, certificates of title and/or tenancy agreements. Production of a national identity card and an introductory letter from the area L. C1 Chairperson may be sufficient to prove the applicant's possession of a fixed place of abode. As such, I find that the applicant has proved that he had a fixed place of abode within the court's jurisdiction at the time of his arrest.

[15] Concerning the sureties, Paragraph 15 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, sets out the determinants on the suitability of a surety as follows;

"Determining suitability of surety

- 1) When considering the suitability of a surety, the court shall take into *account the following factors;* - *a) the age of the surety;* - *b) work and residential address of the surety;* - *c) character and antecedents of the surety;* - *d) relationship to the accused person; and* - *e)* any other factor as the court may deem fit".

[16] In sub-paragraph (2) of paragraph 15 of the Bail Guidelines, it is provided that the proposed surety shall provide documentary proof, which may include a copy of his or her National Identity Card, passport or alien's Identification Card; an introduction letter from the local council 1 chairperson of the area where the surety is ordinarily resident, among others.

[17] In the instant case, the applicant produced three sureties before the Court who were identified and observed by the Court, namely; Acam Christine, an 83year-old mother to the applicant; Otimong Richard, aged 58 years and a

brother to the applicant; and Kateu Peter, aged 54 years and also a brother to the applicant. The 1<sup>st</sup> surety only had a copy of her national identity card and 2<sup>nd</sup> surety did not produce a national identity card. All the sureties produced letters from their respective area L. C1 Chairpersons.

[18] I note that the 1<sup>st</sup> surety is of a very advanced age. Although she is the closest in relationship with the applicant, I entertain serious doubt in her capacity to perform the duties of a surety and the capacity of the Court to enforce the terms against her should the applicant abscond. The second surety did not present a national identity card and his identity remained in question. As such, I am not satisfied with the substantiality of the $1^{st}$ and $2^{nd}$ sureties. The 3<sup>rd</sup> surety could have been substantial but not alone. It follows, therefore, that the applicant has not satisfied the Court that he is not likely to abscond when released on bail. This ground of objection to the bail application is thus made out.

[19] The other ground of objection by the respondent was that the applicant is likely to interfere with key prosecution witnesses who are his close relatives and are currently not under any protection. For the court to arrive at a conclusion as to whether or not an applicant for bail is likely to interfere with witnesses or not, the court has to look at a number of circumstances including the nature of the offence, the age of the applicant, how long the applicant has been on remand, how influential the applicant is in the community, among others. In this case, given the gravity of the offence, the age of the applicant and the influence the applicant has on the likely witnesses on account of being a father figure to them, I find a serious possibility or likelihood of the applicant interfering with witnesses in the matter. A potential threat to that effect therefore exists and this ground of objection by the respondent is also made out.

[20] Given the above findings, the applicant has failed to satisfy the Court that he deserves to be released on bail. I have therefore found it in the interest of justice that the bail application by the applicant be denied. Accordingly, the application for bail is dismissed. The applicant shall await placing of his case on session for hearing.

It is so ordered.

Dated and signed this $14^{th}$ day of April, 2025.

dom am

Boniface Wamala **JUDGE**