Atuhaire & Another v Uganda (Criminal Miscellaneous Application 240 of 2024) [2024] UGHCCRD 59 (14 October 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KAMPALA**

**CRIMINAL MISCELLANEOUS APPLICATION NUMBER 240 0F 2024**

**(**Arising from Criminal Case Number 002 Of 2024 at Kasangati**)**

**ATUHAIRE LUCKY**

**MUGISHA SIMON PETER ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS**

**VERSUS**

**UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

**RULING**

**BY JUSTICE GADENYA PAUL WOLIMBWA**

Atuhaire Lucky and Mugisha Simon Peter, hereinafter called the juveniles are charged with aggravated defilement contrary to section 116(3) of the Penal Code Act. The prosecution alleges that the juveniles on 29th January 2024 at Bumbu Cell in Kasangati Town Council performed a sexual act on X (name withheld), a girl aged seven years. On February 8th 2024, the juveniles were arrested and charged with aggravated defilement contrary to section 116(3) of the Penal Code Act. They were remanded in custody till today when they applied to be released on mandatory bail under article 23(6)(c)(c) of the Constitution.

M/s LDC Legal Aid Clinic represent the juveniles. Ms. Apolot Joy Christine, a senior state attorney represented the Respondent. The Respondent did not oppose the bail application simply because the juveniles have spent more than 180 days on remand and therefore qualify to be released on bail on such terms that the court deems reasonable.

Under article 23(6) (c) of the Constitution, the court cannot refuse to admit an accused person, who has spent more than 180 days on pretrial remand without their case being heard or being committed to the High Court for trial. The Constitution obliges the court to set such reasonable condition that will compel the accused person to continue attending court until ordered otherwise. The court must not set conditions that unreasonably frustrate the accused ‘s right to be granted bail because this provision was set as a safety clause to prevent the State from keeping accused person’s indefinitely in prison if they are not able to either try them or committee them to the High Court for trial. However, in setting the conditions, the court must not give the accused person a blank cheque to jump. The court must balance the accused’s right to be released on bail and be presumed innocent until proven guilty against the right of the public to enjoy a crime free environment, which requires that those charged with criminal offenses are tried before a competent court. In balancing, these rights, the court must come up with bail conditions that make it reasonably easy for law enforcement agencies to trace the accused person should they jump bail and for the accused to enjoy his right to mandatory bail.

In this case, the juveniles presented Mr. Mujungu Herbert Bakesiga, their father, who is a resident of Bbumbu – Kiteezi, as a surety. I have examined his particulars and I have found him as a suitable person to underwrite the juveniles bail. He is the father of the juveniles and therefore has interest is ensuring that his children report to court until ordered otherwise. Therefore, the two juveniles will be released on mandatory bail on condition that their father – Mr. Mujungu Herbert Bakesiga executes a none cash bail of five million shillings. The surety, will also present a letter from his area LCI Chairperson to confirm that he is a tenant in the premises of Mr. Kasozi. This latter condition will be fulfilled on October 16th 2024 but will not jeopardize the grant of bail to the juveniles. I direct the juveniles to continue reporting to the Chief Magistrates Court, Kasangati until they are committed to the High Court. It is so ordered.

Gadenya Paul Wolimbwa

**JUDGE.**

14th October 2024.

Ruling delivered in court in the presence of all the parties and Mr. Kagwa, Court Clerk.

Gadenya Paul Wolimbwa

**JUDGE.**

14th October 2024.