Atia v Uganda (Criminal Miscellaneous Application 73 of 2023) [2024] UGHC 632 (9 July 2024)

Full Case Text

The Republic of Uganda

In the High Court of Uganda at Soroti

Criminal Miscellaneous Application No. 0073 of 2023

(Arising from Court Case No. AA 09/2023, DPP Case No. SOR-CO-247-2023, Police Case CRB No. $97/2023)$

Atia Gideon :::::::::::::::::::::::::::::::::::: 10

Versus

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

# Before: Hon. Justice Dr Henry Peter Adonyo

## Ruling

## 1. Introduction.

This is an application by way of Notice of motion brought under Articles 2(1), 23 (6)(a) & 28 (1) & (3) of the Constitution of Uganda, Sections 14 and 15 (1)(b)(c) of the Trial on Indictment Act and Rules 2& 4 of the Judicature (Criminal Procedure) (Applications) Rules for orders that the applicant now on remand at Soroti Prison be released on bail pending his trial upon such conditions as this Honourable court shall deem fit.

2. Grounds.

The grounds of the application as set out in the application and supporting affidavit sworn by the applicant are that; 25

1. The applicant was charged with Aggravated Defilement C/s 129 (3) (4) (a) of the Penal Code Act.

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- 2. It is the applicant's constitutional right to be released on bail at the discretion of this Honourable court. - 3. The applicant has a permanent place of abode within the jurisdiction of this Honourable Court and will not abscond from attending Court if released on bail. - 4. The applicant has substantial sureties to stand for him and will abide by the conditions this court may set.

The respondent in an affidavit in reply sworn by State Attorney Okello Paul opposed the application for bail on the following grounds;

- 1. The applicant was charged with Aggravated Defilement C/s 129 (3) (4) (a) - of the Penal Code Act which attracts a maximum penalty of death upon conviction thus the applicant is most likely to abscond bail in fear of the severe sentence upon conviction. - 2. That the prosecution is ready with its witnesses to proceed any time if this case is scheduled for hearing. This application is intended to delay the hearing of the case. - 3. That although the applicant has a constitutional right to apply for bail the grant remains the preserve of this Honourable Court to which he prays that the bail be denied. - 4. That the applicant is likely to interfere with prosecution witnesses if released on bail. That the witnesses are in the locality of the accused's area and the released of the accused will not only intimidate the witnesses but will compromise the same which will gravely affect the prosecution's case. - 5. That both the $1^{st}$ and $2^{nd}$ sureties are not substantial since they have not presented their occupation in order for this court to determine their social

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- position hence they may not be able to pay the recognizance ordered by Court. - 6. That no documentary proof such as land titles or tenancy agreements has been adduced to prove fixed place of abode for both the applicant and the presented sureties and thus the applicant has failed to prove fixed place of abode. - 7. That the respondent verily believes that this honorable court is taking considerable measures to ensure that the committed accused person is cause listed for trial as soon as possible and there is no need for the applicant to dwell on uncertainties of when the case shall be heard. - 15

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8. That it is in the interest of justice that this bail application be denied and the case fixed for hearing.

3. Representation.

The applicant was represented by M/s Ewatu & Co. Advocates while the respondent was represented by the ODPP Soroti.

#### 4. Determination. 20

The presumption of innocence is the primary principle for which a court may, in the exercise of its discretion, release an accused person on bail pending trial as stated Article 28(3)(a) of the Constitution of the Republic of Uganda, 1995 which provides that;

Every person who is charged with a criminal offence shall be presumed to be 25 innocent until proved guilty or until that person has pleaded guilty.

Article 23(6)(a) of the Constitution of the Republic of Uganda provides that:

Where a person is arrested in respect of a Criminal Offence, he is entitled to apply $\mathsf{S}$ to the Court to be released on bail, and the Court may grant that person bail on such conditions as the Court considers reasonable.

Capital offences such as aggravated defilement in this instant application are bailable; however, whether the court is inclined to exercise the discretion to grant or not is a matter dependent on the circumstances of each case.

Section 14(1) of the Trial on Indictments Act, Cap 23 provides the position outlined in Article 23(6)(a) of the Constitution. It underpins this Court's 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 amount as is reasonable in the circumstances of the case, to appear before 15 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 under paragraph 5 provide for the general principles applicable in the consideration of a bail application thus;

The court shall, in considering a bail application, be guided by the following 20 principles as enshrined in the Constitution—

(a) the right of an applicant to be presumed innocent as provided for in article 28(3)(a) 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; 25

(d) the discretion of 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 interests of justice.

Paragraph 12 of the Constitution (Bail Guidelines for Courts of Judicature) $\mathsf{S}$ (Practice) Directions provides for contents of a bail application thus;

An application for bail shall contain the particulars of the applicant, accompanied $by-$

(a) a copy of the applicant's national identity card, or passport or aliens identification card, or employment card, or student identity card; 10

(b) an introduction letter from the Local Council 1 chairperson of the area where the applicant resides;

(d) expounded grounds for the application. 15

Section 15(1) of the Trial on Indictment Act provides thus;

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-

(a) that exceptional circumstances exist justifying his or her release on bail; and 20

(b) that he or she will not abscond when released on bail.

In this section, "exceptional circumstances" means any of the following—

(a) grave illness certified by a medical officer of the prison or other institution or place where the accused is detained as being incapable of adequate medical treatment while the accused is in custody;

- 25 - (b) a certificate of no objection signed by the Director of Public Prosecutions; or - (c) the infancy or advanced age of the accused.

However, these special circumstances have been found non-mandatory. $\mathsf{S}$

## Section 15(4) provides

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 the 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 conditions of his or her bail; and

### (d)whether there are other charges pending against the accused. 15

In deciding to grant or not to grant bail to the applicant, the court is enjoined to consider the accused's demonstration that they will not abscond trial by considering the above factors, which are examined one by one.

# a. Fixed place of abode.

The applicant under paragraph 11 of his affidavit in support stated that he has a 20 permanent fixed place of abode at Orapada village, Gweri Parish, Gweri Subcounty in Soroti District within the jurisdiction of this court.

Annexure 'B1' to his application is an introductory letter from the LC1 Chairperson of Orapada village, Gweri Parish, Gweri Sub-county, Soroti District

dated 1st December 2023. Herein the LC1 chairperson states that Atia Gideon is 25 a true resident of his area of jurisdiction with a permanent place of abode.

Annexure 'B2' to his application is a copy of his national ID CM88038103UGNF indicates that he is 36 years old and a resident of Orapada village. The essence of a fixed place of abode is traceability of an accused in the event of $\mathsf{S}$ abscondment or whenever necessary.

Section 15(4) (a) of the Trial on Indictment Act provides that in considering whether an accused is likely to abscond court may take into consideration whether the applicant has a fixed place of abode within the jurisdiction of the court.

This is amplified by paragraph 13(k) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions.

While the Law does not define the phrase 'fixed place of abode' what is important is that the fixed place of abode must be within the jurisdiction of the court

considering the bail application. Where the applicant fails to prove this under 15 section 15(1) of the TIA the court may deny him bail.

The respondent in their submissions stated that residence can change at will and one can only show proof of fixed place of abode through documents such as land titles, a copy of rent agreement which the applicant has not availed to this honourable court.

The law as stated above specifically Paragraph 12 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions requires that the applicant present an introduction letter from the Local Council 1 chairperson of the area where the applicant resides when applying for bail.

- There is no requirement for documentary proof beyond the LC1 introduction 25 letter where the applicant is resident and while I appreciate that certain - circumstances may arise that require an applicant to prove fixed place beyond presentation of an LC1 introduction letter, this is not one of those instances. Furthermore, should the respondent in a bail application find it necessary to

object to the fixed place of abode presented by the applicant they should present $\mathsf{S}$ evidence to that effect and not rely on mere speculation.

The applicant having presented an introduction letter from the LC1 chairperson of Orapada village where he is resident, which letter indicates that he has a permanent place of abode has proved fixed place of abode. This requirement is thus proved.

b. Sureties.

The applicant under paragraph 12 of his affidavit in support presented two sureties that is;

Adeke Pelina his sister and Esabu Michael his uncle, both peasants and residents of Orapada village, Gweri Parish, Gweri Sub-county in Soroti District.

Annexures 'D' and 'F' are introduction letters from the LC1 Chairperson Orapada village, Gweri Parish, Gweri Sub-county in Soroti District dated 1st of December 2023 and they indicate that they are true residents of his area with permanent fixed places of abode.

Annexure 'C' is a copy of Adeke Pelina's national ID CF86108102TRCE and it 20 indicates that she is 38 years old and a resident of Angopet village in in Gweri Soroti.

Annexure E' is copy of Esabu Michael's national ID CM600381029ZYD and it indicates that he is 64 years old and a resident of Angopet village in Gweri Soroti.

Counsel for applicant submitted that he explained to the sureties their roles and 25 duties which they understood. That the sureties are the sister and uncle to the applicant who are directly linked to him and have control over him to ensure his compliance with bail terms and conditions set by court.

- A "surety" is defined under Paragraph 4 of the Constitution (Bail Guidelines for $\mathsf{S}$ Courts of Judicature) Practice Directions to mean a person who undertakes to ensure that the applicant will appear in court and abide by the bail conditions and who furnishes security which may be forfeited to State if the applicant fails to appear in court. - Furthermore, Section 15 (4)(b) of the Trial on Indictment Act and paragraph 13(1) 10 (I) of the Constitution (Bail Guidelines for Courts of Judicature) Practice Directions provides that in considering whether an accused is likely to abscond the court shall consider whether the accused has sound sureties within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail. - Paragraph 15 of the Constitution (Bail Guidelines for Courts of Judicature) 15 (Practice) Directions provides for determinants on the suitability of a surety thus;

(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 residence address of the surety; 20

- (c) character and antecedents of the surety; - (d) relationship to the accused person; and - (e) any other factor as the court may deem fit.

(2) Subject to sub-paragraph (1) the proposed surety shall provide documentary proof including— 25

(a) a copy of his or her national identity card, passport or aliens identification card;

(b) an introduction letter from the Local Council 1 Chairperson of the area where the surety is ordinarily resident; or

In this application, the sureties have all sufficiently proved fixed place of abode, their relationship to the applicant, occupation as peasants and their age. Having considered all these factors, I thus find that they are substantial.

- I have noted that the introduction letters for the sureties and their national IDs 10 indicate varying residencies, however, the difference within the two documents does not negate the fact that they come from Orapada village as proven by the letters of introduction. Having presented an introduction letter from the local council 1 chairperson of the area where they are ordinarily resident, the deviation - in the details is not fatal to this application. 15

The sureties herein are to ensure the attendance of the accused person before court whenever required, have a duty to sign the bail bond form. They are also duty bound to inform court where the accused person is not able to attend and are liable to pay the bail bond sum should they fail to ensure the attendance of the accused person before court.

5. Conclusion.

On the basis of the evidence put forward, the severity of the offence having been considered, court is satisfied that this is a case where it should exercise its discretion and grant bail to the applicant pending his trial. Bail is accordingly granted on the following conditions;

- 1) Cash bond of Shs. 2,000,000/-. - 2) Each of the Sureties is bound in the sum of Shs. 10,000,000/- not cash. - 3) The applicant and his sureties are to provide a recent photograph, telephone numbers and copies national IDs to the Registrar of this court

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- and to the Chief Resident State Attorney Soroti for filing and record purposes. - 4) The Applicants are to report to the Registrar of the Court once a month on the first Monday of each month with effect from 05/08/2024 until otherwise directed by court. - I so order. 10

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Hon. Justice Dr Henry Peter Adonyo

Judge

9th July 2024

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