Bakaki v Uganda (Criminal Miscellaneous Application 68 of 2022) [2023] UGHCCRD 118 (4 August 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA CRIMINAL MISC. APPLICATION NO. 068 OF 2022 (ARISING FROM CRIMINAL CASE NO. 186 OF 2022) BAKAKI ASHIRAF :::::::::::::::::::::::::::::::::::: $\overline{5}$ **VERSUS**

## UGANDA ::::::::::::::::::::::::::::::::::: **BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI**

#### **RULING**

The applicant filed this application for bail under Article 23(6)(a) of the Constitution of the Republic of Uganda, 1995 as amended, Section 14 of the Trial on Indictments Act Cap 23, Rules 2 & 4 of the Judicature (Criminal Procedure) (Applications) Rules SI 38-8 and Paragraph 6 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions 2022. The application was supported by the applicant's affidavit and raised several grounds which are summarized as follows: -

1) The applicant is presumed innocent and has no intention to plead guilty to the offence of rape for which he is charged and he has a constitutional right, subject to Court's discretion, to be released on bail pending the hearing and determination of the charges preferred against him.

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- 2) The applicant has a fixed place of abode at Kadiba Zone, Kasalina Ward, Buwenge Town Council in Jinja District which is within the jurisdiction of this Honorable Court. - 3) The applicant has substantial sureties within the jurisdiction of this Court who will ensure his compliance with any bail conditions especially his attendance for his trial and he pledges to adhere to all the bail terms that this Honorable Court shall set. - 4) The applicant is facing no other criminal charges and there is no likelihood of him interfering with investigations or prosecution witnesses. - 5) The applicant has at all times been a law abiding citizen and has never been charged and or convicted with any criminal offence. - 6) The applicant has two children of tender years and a wife and he is the sole bread winner of his family. - 7) The applicant has never jumped bail and he is ready to strictly comply with the bail terms that this Honorable Court may impose. - 8) The offence for which the applicant is charged is bailable by the High Court which has wide discretionary powers to release him on bail.

#### **Applicant's Submissions**

- Counsel Kevin Amujong appeared for the applicant and presented the sureties as 20 follows: - 1) KAMEGA HABIBA, aged 41, the applicant's mother, a retail shop owner and a resident of Kadiba Zone, Kasalina Ward, Buwenge Town Council in Jinja District. - 2) BAKAKI YASIN, aged 29, an elder brother of the applicant, operates a cosmetics shop and is a resident of Kadiba Zone, Kasalina Ward, Buwenge Town Council in Jinja District.

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- 3) BAKAKI IBRAHIM KAGOLOLA, aged 60, a maternal uncle to the applicant, a sugarcane and maize dealer and a resident of Kadiba Zone, Kasalina Ward, Buwenge Town Council in Jinja District. - Counsel Kevin briefly reiterated the contents of the application and the supporting $\overline{5}$ affidavit. She cited the case of Dr. Kizza Besigye vs Uganda MA. No. 228 of 2005 where it was held that the applicant has a constitutional right to bail which has to be granted at the discretion of Court and the said discretion ought to be exercised judiciously. In regard to the objections of the Respondent under paragraphs 6 and 7 of the affidavit in reply, Counsel for the applicant argued that the Supreme Court in 10 Foundation for Human Rights Initiative vs Attorney General Appeal No. 03 of - **2009,** emphatically stated that Section $15(1)(a)$ of the TIA should be read in conformity with the 1995 Constitution, specifically the presumption of innocence enshrined in Article $23(6)(a)$ which ought to be considered by Court while granting - or refusing to grant bail. That the Supreme Court clearly stated that the Section 15 15 of the TIA is not mandatory and the discretion is totally left to Court to assess the accused and the sureties presented before Court and determine whether the accused will return back to Court when required to do so. Counsel contended that the accused has, in his application, clearly undertaken to report back to Court and substantial sureties who know their responsibility have also been presented to ensure that he 20 comes back to Court for trial if granted bail. Counsel further argued that the applicant was not identified at the identification parade by the alleged victims and that he was arrested and detained for over 12 days without being arraigned in Court contrary to Article 23(4) of the Constitution. She cited the case of **Uganda vs Robert Sekabila** - High Court Criminal Case No. 25 of 2010 where the trial of the accused who had 25 been kept in custody beyond 48 hours was declared a nullity. In conclusion, Counsel contended that the right to liberty is very crucial in light of the fact that there is a

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likelihood that the proceedings might be declared a nullity. She prayed that the application is granted.

### **Respondent's Submissions**

Ms. Pamela Orogot for the State objected to the application. Regarding the $\mathsf{S}$ identification parade and the allegation of prolonged detention of the accused beyond the 48 hours, she stated that the State denies the same. She referred to paragraph 5 of the affidavit in support and argued that the applicant was delving into the merits of the main case in order to bias Court in his favor. With regard to exceptional circumstances, Ms. Pamela cited paragraph 14(2) of the Constitution 10 (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 which prescribes down the exceptional circumstances as grave illness, infancy, advanced age and a certificate of no objection from the DPP, none of which had been proved by the applicant. That in response to paragraph 11 of the affidavit in support, no documentary evidence had been adduced to prove that the applicant owns customary 15 land and therefore Court should not rely on it. In addition, she argued, that neither did the applicant present any documentary evidence of a subsisting marriage nor did he adduce evidence as to the existence of children of tender years as alleged in paragraph 12 of the affidavit in support of the application. She therefore prayed that Court considers the gravity of the offence of rape to deny the applicant bail.

### **Applicant's Submissions in Rejoinder**

In rejoinder, Counsel Kevin argued that under Paragraph 13 of the Bail Guidelines, in considering bail, Court has to consider the gravity and nature of the offence, not by merely looking at it but also considering the details of the offence. According to Counsel, the applicant having not been identified and the state's failure to controvert this clearly guides Court to grant bail. In respect of the evidence to prove marriage

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and children of the applicant, Counsel Kevin argued that the applicant had clearly informed Court that he has two children and his wife had confirmed to Court that she got married to him in 2019 and had children in 2020 and 2021. Counsel for the applicant cited Paragraph 18 of the Constitution (Bail Guidelines for Courts of Judicature) Practice Directions, 2022 for the proposition that a person looking after children of tender years falls under vulnerable persons as defined under Paragraph 4 of the same Guidelines. She emphasized that the accused person has children of tender years and keeping him in custody shall affect his children and should therefore be granted bail in order to look after his children while reporting to Court as required. She prayed that the application for bail be granted.

#### **Decision of Court**

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The right to apply for bail is a fundamental right guaranteed under Article 23 (6) of the Constitution of the Republic of Uganda, 1995 as amended and Section 14 and 15 of the TIA. The main purpose of bail is to uphold one's right to personal liberty, 15 premised on the presumption of innocence stipulated under Article 28(3) of the Constitution. See Nalongo Nazziwa Josephine vs Uganda Supreme Court Criminal Appeal No. 035 of 2014. The purpose of bail is to ensure that the applicant appears to stand trial, without the necessity of being detained in custody during the period of trial. See Col. (Rtd) Dr. Kizza Besigye Vs. Uganda Criminal 20 Application No. 83/2016. Therefore, it is important that the applicant confirms his fixed place of abode and presents sound sureties who will ensure his attendance in court and who can be called upon in the event that he absconds.

In all instances, the power to grant or refuse bail is at the discretion of Court. In this 25 respect, Article 23(6)(a) of the Constitution, Section 14(1) of the Trial on Indictments Act Cap 23 (TIA) and Paragraph 5(d) & (e) of the Constitution (Bail

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Guidelines for Courts of Judicature) (Practice) Directions 2022 enjoin this Court to exercise its discretion to grant bail on such terms and conditions as the court considers reasonable.

The primary concern of Court is whether the applicant will return to court to answer $\mathsf{S}$ the charge if released on bail. Specifically, Section 15(4) of the TIA provides the factors to be taken into account while considering whether or not the accused is likely to abscond. This is determined considering two main aspects. First is whether the applicant himself has a fixed place of abode within the jurisdiction of Court. The second consideration is whether the applicant has sound securities within the 10 jurisdiction of Court to undertake that the accused shall comply with the conditions of his or her bail.

First and more importantly, this Court takes cognizance of the importance of the requirement for the accused to have a fixed place of abode within the jurisdiction of 15 Court before bail can be granted. This place of abode must be certain, for only then can the applicant be traced if he/ she absconds. This is usually proved through confirmation from the area Chairperson LC I. In this case, the applicant presented an introduction letter from the Chairperson LC I indicating that he is a resident of Kyerinda Zone Cell, Kasalina Ward, Buwenge Town Council in Jinja District. 20 However, under paragraph 2 of his application and paragraph 8 of his affidavit in support of the application, the applicant states that he is a resident of Kadiba Zone, Kasalina Ward, Buwenge Town Council in Jinja District. Despite this discrepancy and in the interests of justice, I shall base my decision on the fixed place of abode indicated in the introduction letter of the LC1 Chairperson of Kyerinda Zone Cell, 25 Kasalina Ward, Buwenge Town Council, Jinja district. Having presented three substantial sureties who understood their obligations as sureties and are closely

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related to the applicant, I am inclined to allow this application on the following terms;

- 1) Cash bail of Uganda Shillings 1,000,000 only. - 2) Non cash bail against each one of the sureties to the tune of Uganda Shillings 2,000,000 only.

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3) The applicant shall report to the LC 1 Chairperson of Kyerinda Zone Cell, Kasalina Ward, Buwenge Town Council in Jinja District on a weekly basis and also to the Deputy Registrar of this Court on the second Tuesday of each month with evidence of reporting to the LC1 Chairperson of his area with effect from 12<sup>th</sup> September 2023.

Any contravention of the above terms will result into automatic cancellation of the bail granted.

I so order.

FARIDAH SHAMILAH BUKIRWA NTAMBI **JUDGE** 04/08/2023