Arugai v Uganda (Miscellaneous Application 18 of 2023) [2023] UGCA 251 (29 August 2023)

The Republic of Uganda $\mathsf{S}$ In the High Court of Uganda Holden at Soroti Miscellaneous Application No. 18 of 2023 (Arising from Criminal Case No.: KAT-AA-014-2022) Arugai Filbert ::::::::::::::::::::::: **.....................................** Versus 10

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Uganda :::::::::::::::::::::::::::::::::::

## Before: Hon. Justice Dr Henry Peter Adonyo

## Ruling on Bail Application:

1. Background:

Arugai Filbert (the accused, now applicant) was charged with the offence of rape contrary to Sections 123 and 124 of the Penal Code Act, Cap 120 as amended. It is alleged that the accused, on the 3<sup>rd</sup> day of August 2021 at Aelenyang village in

Katakwi district, had unlawful carnal knowledge of Adedi Mary Goretty without her 20 consent.

It is alleged that Adedi Mary Goretty, a 16-year-old victim from Aelenyang village in Katakwi district, rode her bicycle to Katakwi town around 9:00 a.m. on August 3, 2021, after being sent by her mother to shop. When she reached the prison gardens,

25 the accused, a 29-year-old boda-boda driver and resident of Opech village in Katakwi district, followed her slowly on a motorcycle.

When the victim reached a cassava garden, the accused parked his motorcycle, grabbed her from her bicycle, dragged her to the garden, and forcibly engaged in

caught red-handed by the uncle of the victim, who apprehended and took him to $\mathsf{S}$ the Katakwi Central Police Station.

The victim was medically examined and found to be 16 years old with a fresh, raptured hymen and bruises.

2. Legal basis of the Application:

- The applicant brought this application by a Notice of Motion under Articles 20(2), 10 23(6)(a) and 28(1)(3)(a) of the Constitution of the Republic of Uganda, 1995 (hereinafter "the Constitution"), Section 17(2) of the Judicature Act and Sections 14 (1) of the Trial on Indictments Act, Cap 23, SI 13-8 for orders that the applicant be released on bail pending trial. - The application is anchored on grounds briefly stated in the application and 15 anchored by the affidavit supporting the application deposed by the applicant. That; - a) The applicant was charged with the offence of rape contrary to sections 123 and 124 of the Penal Code Act, Cap 120 and has been on remand detained in Soroti Government Prison since 3<sup>rd</sup> August 2022. - b) The applicant has a Constitutional right to apply for bail. 20 - c) The accused/applicant is presumed innocent until proven guilty. - d) The applicant has been in detention since 9/08/2022 and was committed for trial in this Court on 21 February 2023, but the hearing date has not been fixed. - e) The applicant has a fixed place of abode at Opoc village, Alogook parish, Katakwi sub-county, Ngariam county in Katakwi district. (A copy of the National Identification Card and Introduction Letter marked as Annexure B1 and B2, respectively).

- f) The applicant is the breadwinner of his family (a wife and six children), suffering immensely due to his absence. - g) The applicant's lawyer has explained to him what it means to be released from prison on bail, and the applicant has fully understood the same. - h) The applicant has never abused any bail terms before, neither is he facing any other charges, and he is committed to the conditions set by this Court. - i) The applicant shall not interfere with any investigations, which are in any case concluded; neither will he interfere with witnesses, some of whom have since been relocated, and he will not abscond. - j) The applicant has two sureties (Imamut Gaude and Ekelot John Robert) who the applicant believes to be substantial, and they fully understand the duties and responsibilities of sureties and are willing to undertake the conditions set by this Court. (Copies of their National Identification Cards and Introduction Letters as Annexures "A1-A4"). - k) The sureties reside within the jurisdiction of this Honourable Court, in the addresses they will provide as they present themselves to this Honourable Court. - l) The applicant undertakes to abide by any bail terms set by the Court.

The respondent did not file an affidavit in reply to this application despite an affidavit of service dated 6<sup>th</sup> June 2023, which indicates that the instant application was $25$ received by the Directorate of Public Prosecutions – Regional Office -Soroti on 2<sup>nd</sup> June 2023, but it has not been responded to.

Accordingly, this Court will consider the merits of the applicant's application while determining the application.

$\mathsf{S}$

#### $\mathsf{S}$ 3. <u>Submissions</u>:

Since the respondent did not file any affidavit in reply, this application is thus unopposed, meaning that there is no objection to it and to the sureties presented in court or their documents or on any of the grounds relied upon by the applicant. In arguing this application, the applicant filed written submissions through his counsel (M/s Engwau & Co. Advocates). The submissions, the application, the affidavit in its support, the attached documents, the relevant legal authorities and the applicable laws are considered while determining this application.

## 4. Decision of Court:

The presumption of innocence is the primary principle for which a court may release an accused person on bail pending trial. This legal principle is enshrined under **Article** 15 $28(3)(a)$ of the Constitution of the Republic of Uganda, 1995.

As has already been noted earlier, this application was brought under **Articles** 23(6)(a) and 28(3)(a) of the Constitution of the Republic of Uganda, which provide that:

"...where a person is arrested in respect of a Criminal Offence, he is entitled to apply 20 to the Court to be released on bail, and Court may grant that person bail on such conditions as Court considers reasonable."

Further, Article 28 (3) (a) of the Constitution 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.'

Section 14(1) of the Trial on Indictments Act, Cap 23 articulates the stance outlined in Article 23(6)(a) of the Constitution. It empowers the High Court with discretion to release an accused person, at any stage of the proceedings, on taking from him or her a recognisance consisting of a bond, with or without sureties, for such an


$\mathsf{S}$ amount as is reasonable in the circumstances of the case, to appear before the Court on such a date and at such a time as is named in the bond.

The Constitution (Bail Guidelines for Courts of Judicature) Practice Directions, 2022, No. 5, reinforces the above legal positions by providing the general principles that this Court may take into account while considering a bail application. These principles are:

- 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 the 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 applicants and the interest of justice. - i. Personal liberty:

An accused person must not be deprived of his freedom unnecessarily or as a mere punishment if he has not been proved guilty by a competent court of law. (See 20 Tumwirukirire Grace v Uganda (Criminal Miscellaneous Application No. 94 of 2019) [2020] UGHC 26)

This principle of protection of personal liberty was also articulated in the case of Besigye v Uganda (Criminal Application No. 83 of 2016) [2016] UGHCCRD 7, wherein the late Hon. Justice Masalu Musene (as he then was) observed that;

"...court has to consider and balance the rights of the individual, particularly with regard to personal liberty... The active principle in granting bail is that of upholding the liberty of the individual while simultaneously protecting the


# administration of justice. (See Abindi & Another v Uganda; Miscellaneous Criminal Application 20 of 2016 [2017])".

Accordingly, an accused person should be granted bail if they fulfil the set conditions for their release, has a fixed place of abode, and has sound sureties capable of guaranteeing that he will comply with the conditions of his or her bail, and is willing to abide by all other conditions set by the court.

$\mathsf{S}$

Arising from all the above considerations, it is trite to conclude that while an accused person has the right to apply for bail under Articles 23(6)(a) and 28(3)) of the Constitution, this Court has the discretion to grant or refuse to grant the bail as was held in the case of Uganda v Kiiza Besigye (Constitutional Reference No. 20 of 2005)

[2006] UGCA 42 15

> Additionally, and under Section 15 of the Trial on Indictments Act, the Court may refuse to grant bail to a person accused of rape (Section 15 (2) (e) of the TIA) unless such accused/applicant proves to the satisfaction of the court that exceptional circumstances such as certified grave illness, infancy or advanced age of the accused

and a certificate of no objection signed by the Director of Public Prosecutions. Proof 20 of these circumstances, nonetheless, is not mandatory as the courts have the discretion to grant bail even when none is proved.

This position was considered in the case of *Foundation for Human Rights Initiatives v* Attorney General (Constitutional Petition No. 20 of 2006) [2008] UGCC 1, with the Constitutional Court, while making reference to *Uganda vs Kizza Besigye (supra)*, holding that;

> "Both High Court and subordinate courts are still free to exercise their discretion judicially and to impose reasonable conditions on the applicant." However, in considering the instant application where the applicant is charged with $\mathsf{S}$ the offence of rape, I must remain alive to the fact that the applicant is charged with a very serious offence relating to the dignity of a woman and so I am more amendable to consider whether exceptional circumstances do exist in this application so as to determine, amongst other conditions as to whether to grant or 10 refuse to grant bail to the applicant.

## $\dot{I}$ . Exceptional circumstances:

The applicant is charged with rape; upon conviction, an accused is liable to suffer death as the maximum sentence. This demonstrates how grave the accusation against the accused is and which necessitates that exceptional circumstances be proved for the court to consider whether to grant or not grant bail.

The applicant did not plead nor prove any exceptional circumstance to warrant his release on bail.

The other requirements for consideration are:

a) That the applicant has a fixed place of abode within the jurisdiction of this court,

- b) the soundness and substantiality of the sureties presented and their undertaking to have understood their roles and obligations in this position, - c) the applicant's undertaking to respect and abide by the terms of the grant of bail and whether he shall not intimidate or interfere with the investigations or witnesses thereof.

d) the antecedents of the applicant a

e) Possibility of interference with the witness(es).

$\mathsf{S}$ This court is equally mindful of the following;

> The right of the accused to apply for bail, $a)$

$b)$ This court's jurisdiction to hear and determine an application such as this one,

$c)$ and the court's discretion in such applications.

10 However, in all cases, the court must have in its mind the overarching consideration of the gravity of the accusation levelled against the applicant, which should never be ignored.

ii. Unknown date of trial:

The applicant states that he was charged with rape and remanded by the Chief Magistrate's Court of Katakwi at Katakwi on 9<sup>th</sup> August 2022.

Furthermore, he was committed for trial in this Court on 21<sup>st</sup> February 2023 and has since been on remand at Soroti Government Prison but the hearing date has not been fixed.

Upon perusal of the lower court file, it is clear to me that the applicant has been on remand since 9<sup>th</sup> August 2022, which is now over a year though he was committed 20 to the High Court on 21st February 2023.

Nevertheless, the date of his trial is still not known as criminal cases are fixed for hearing in sessions as is the practice and a session is dependent on many things, some of which are not in the control of this Court, even if done on a day today basis. Accordingly, it is presumptuous for an accused person to be kept on remand unnecessarily without a trial given the cardinal principle of the Constitution which

enamors that that an accused person is innocent until proven guilty or unless he or she pleads guilty as per Article 28(3) of the Constitution.

It is, therefore, given the long period within which the applicant has been on remand $\mathsf{S}$ then it is my finding that one year without trial is indeed a long time and is in direct conflict with the right to a fair hearing and constitutionally guaranteed speedy trial as the Constitution provides that justice should not be delayed in Article 126 (2) (b).

Fixed place of abode: iii.

The applicant states that he has a fixed place of abode at Opoc village, Alogook 10 parish, Katakwi sub-county, Ngariam county in Katakwi district within the jurisdiction of this court.

Section 15(4) of the Trial on Indictments Act underscores the importance of proof of a fixed place of abode as not only a determinant as to whether the applicant is likely to abscond once granted bail but also the failure of proving the same, bail can be denied.

Section 15(4) of the TIA provides that;

- 1) Notwithstanding section 14, the court may refuse to grant bail to a person accused of an offence specified in subsection (2) if he or she does not prove to the satisfaction of the court— - 4) 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 In the case of Foundation for Human Rights Initiative Vs Attorney General *Constitutional Petition No. 020 of 2006,* it was held that the nature of the offence, 25 antecedents of the applicants and whether the applicants have a fixed place of abode in the Court's jurisdiction should be strongly considered by Court in an application for bail.

A perusal of Annexure B1 attached to the application is a copy of the applicant's $\mathsf{S}$ National Identity Card, which lists his village as Okokoma, Dadas parish, Katakwi subcounty, Usuk county in Katakwi district. Annexure B2 is an LC1 Introductory Letter dated 12-05-2023 from Alupo Grace – the LC1 Chairperson, who indicates that the applicant is a true resident of Opoc village, Alogook parish, Katakwi sub-county, Ngariam county in Katakwi district.

Based on Annexure B2, the applicant has proved that he is a resident in the jurisdiction of this court.

iv. Substantial Sureties:

The applicant avers that he has two sureties (Imamut Gaude and Ekelot John Robert) who the applicant believes to be substantial and fully understand their duties and 15 responsibilities and are willing to undertake the conditions set by this Court. The applicant also states that they reside within the jurisdiction of this Court.

Upon perusal of Annexures A1-A4, I note the following;

The first surety, Imamut Gaude, holder of National Identity Card Number CF530431019LCD, a resident of Obele Village, Okokoma Parish, Akoboi Sub-County, 20 in Katakwi District.

The second surety, Ekellot John Robert, holder of National Identity card number CM74043101KDXF and a resident of Obele Village, Okokoma Parish, Akoboi Sub-County, in Katakwi District.

According to the submissions of the applicant's counsel, the first surety is an aunt to 25 the applicant, whereas the second surety is an elder brother.

Counsel for the applicant also submits that he has laboured to explain to the sureties their obligations and consequences of failure to ensure that the accused person attends court and they all have understood.

$\mathsf{S}$ Having looked at Annexures A1 $-$ A4, and because the prosecution does not object to any of the sureties, I find that the applicant has presented substantial sureties to ensure that the accused does not abscond.

The accused person states that he is the breadwinner of his family (a wife and six children), suffering immensely from his absence; however, he has not adduced any evidence of his marriage or the six children for the court to consider his averment. However, in the case of *Livingstone Mukasa & Ors vs. Uganda [1976] HCB 117*, Saied CJ (as he then was) held that; $\frac{1}{2}$

"The fact that accused persons may be married or have permanent abodes within the jurisdiction of Uganda courts are not by themselves sufficient enough for granting bail. I take the view that where the considerations concerning the liberty of a person are involved, courts must equally bear in mind the interests of justice and neither ought to be sacrificed at the expense of the other."

I also note that the accused is committed to the conditions that this court will set. He also undertakes not to interfere with any investigations and his undertaking that he will not abscond.

In Uganda vs. Col. Rtd Dr. Kiiza Besigye Constitutional Reference No. 20 of 2005, it was held that the court ought to balance the applicants' constitutional rights with the need to protect society from lawlessness.

Invariably, it is clear to me that the applicant has proved that he has a fixed place of 25 abode within the court's jurisdiction, he has substantial sureties whom counsel has submitted that they understand their role and obligations, he has undertaken to abide by this court's terms and conditions, and he has also indicated that he shall not abscond.

- Consequently, after considering the above and because the prosecution has not $\mathsf{S}$ objected to or countered any of the averments in the instant application, I am inclined to look at this application with mercy and allow it in spite of the applicant's failure to prove any exceptional circumstances. Accordingly, this application is allowed based on conditions set below. - 5. <u>Bail Conditions:</u> 10

The Applicant to deposit a Cash bond of Shs. 2,000,000/-.

2) Each of the sureties of the applicant is bound to the State of Uganda in the sum of Shs. 5,000,000/- not cash.

3) The Applicant, together with his sureties, are directed to submit a copy of their national IDs and a recent passport photograph to the Registrar of this court and to 15 the Chief State Attorney Soroti for the record.

4) The Applicants to report to the Registrar of the Court once a month on the first Monday of each month with effect from 04/09/2023 until otherwise directed by court.

20 I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge 29th August 2023