Bwambale v Uganda (Miscellaneous Application 113 of 2023) [2024] UGHC 270 (27 March 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MUKONO CRIMINAL MISCELLANEOUS APPLICATION NO.113. OF 2023 (ARISING FROM CRIMINAL CASE NO: MKN-CO-AA-180/2021) **BWAMBALE MODES ================== APPLICANT**

#### **VERSUS**

**UGANDA============================ RESPONDENT**

### BEFORE HON. LADY JUSTICE JACQUELINE MWONDHA

#### **RULING**

This application for bail was brought under Article $23(6)(a)$ , Article $(28(3)(a))$ of the 1995 Constitution of Uganda as amended. Section 14(1) and 15 of the Trial on Indictment Act, Rule 2 & 4 of the Judicature (Criminal Procedure Application) Rules SI 13-8.

The application was brought seeking orders that;

1. The applicant now on remand at Nakasongola Main Prison be released on bail pending his trial upon such conditions as this Honorable Court shall deem fit.

The grounds upon which the application is premised include;

1. That the applicant was arrested and charged with the offense of Rape contrary to section 123 and 124 of the penal code Act

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Cap 120 laws of Uganda and that it is bailable by this Honorable court

- 2. The applicant is entitled to Constitutional right of Presumption of innocence until proven guilty or pleads guilty. - 3. That the Applicant is entitled to Constitutional Right to apply for bail on grounds provided herein. - 4. The applicant has a fixed place of abode within the jurisdiction of the court and will not abscond if released on bail. - 5. The applicant has sound and substantial sureties within the jurisdiction of the court who will undertake that the accused shall comply with the conditions of his bail. - 6. The applicant will respect the conditions of bail application. - 7. The Applicant has no antecedents whatsoever. - 8. It is just and equitable that this application is granted.

The applicant stated that he had been in remand since 24th November, 2021 and even thought he was committed for trial to the High Court he does not know when the trial will take place. He further stated that he has a fixed place of abode which is Kauga village, Mukono Municipality in Mukono district and has substantial sureties that reside within the jurisdiction of the court and have the capacity to compel him to come to court. He attached copies of the sureties' national identification cards, identification cards from their work places and introduction letters from the Local Council One chairperson.

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The first surety, Wareeba Stanley is 60 years, a lecturer of the applicant at Uganda Christian University and resides within Mukono.

The second surety, Hanni Edwad Matte is 31 years, a brother of the applicant and a resident of Makerere II Zone B village.

The third surety, Kato Justus is 42 years, an uncle to the applicant and resident of Mukono.

The applicant submitted that he is a first time offender and has never been granted bail and failed to comply with the terms. Counsel for the applicant cited the case of **David Chandi Jamwa v Uganda Misc.** App of 2018 where it was held that the applicant being a first time offender was a consideration for being granted bail and indeed bail was granted.

The applicant also pointed out that although the offence of rape is serious and carries a maximum sentence of death, it still remains the law that an accused is presumed innocent until proven guilty. That he has been on remand for 2 years now yet he is student at Uganda Christian University who should have graduated in the year 2022 but was forced to apply for a dead year. More to this, he is willing to go through trial to prove his innocence but does not want to lose his dream of finishing his studies which cannot happen if he is in prison yet the trial is also not commencing for close to 2 years.

It was also submitted that the principal witness for the prosecution who is the complainant has since written to the Resident State

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Attorney twice on her willingness to withdraw her charges against the applicant and that she is not willing to cooperate with the prosecution on the same which discredits the whole case leaving them with no evidence thus the DPP is expected to enter a nolle prosequi and the same has been brought to the attention of the DPP to do the needful. That the applicant would like to sit the exams he missed once released on bail.

The application was opposed by an affidavit in reply sworn by Ayebazibwe Christine a state attorney from the office of the Director of Public Prosecutions. The application was opposed on grounds that the applicant was charged with the offence of rape which is a grave offence. That the applicant did not furnish proof that he has a permanent place of abode at Kauga village, Mukono District and may therefore abscond if granted bail. That the applicant has 3 sureties but has not attached any documentary proof that they will be in position to pay for the bond incase the applicant absconds and the sureties should therefore not be found substantial. That the DPP has not given her position in regards to the letter referred to by the applicant.

The respondent further opposed this application on ground that the applicant averred that he is a student at Uganda Christian University but did not furnish any proof that he is a student of Development Studies at Uganda Christian University and neither did he furnish court with his national identity card as required in Paragraph 12(a) $of$ the Constitutional (Bail Guidelines for

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Judicature)(Practice Directions, 2022, Legal Notice No.8 of 2022 and prayed that the applicant is denied bail and the criminal case is fixed for hearing at the nearest convenient date.

In rejoinder the applicant averred that he attached an introduction letter as proof that he has a place of abode within the jurisdiction of the court and that courts have found that proof of permanent residence can be made by availing a copy of introduction/ confirmation letter from the Local Council Chairperson of the said area.

In regard to the objection that the applicant did not furnish court with his National Identity Card and his student school identity card, the applicant submitted testimonials from National Identification Registration Authority confirming that he is a registered citizen of Uganda under NIN CM96003100ATNG and another from Uganda Christian University confirming that he is a student at the institution under Registration No. S17B08/102 and Access No. A76305.

In regard to the objection of the applicant's sureties having omitted to furnish proof that they have financial capabilities to meet their bond in the event that the applicant absconds, the applicant attached bank statements of his sureties as proof of their financial stability to meet the financial bond obligations.

In addition, counsel for the applicant contended that the courts have held that bail and bond are not aimed at getting money from the accused and their sureties to enrich the state but rather court should pay more attention to ensuring that the accused shall be able to

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attend court when required to do so. He made reference to Odokonyero v Uganda C. M. A No 19 of 2022. Counsel for the applicant prayed that the court finds that whereas financial ability of sureties is not a substantial ground for consideration, the applicant has still furnished proof of the financial ability of his sureties to meet their bond obligation and highlighted the need for the applicant to be presumed innocent.

# **ANALYSIS**

1. Whether the applicant should be granted bail.

In the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 bail is defined as the temporary release of an accused person after providing security for future appearance in court on such conditions as the court considers reasonable.

The law on bail is rooted in the presumption of innocence. Its purpose is to permit an accused person to temporarily gain his liberty, by leaving prison and attending his trial while coming from home or any other place of their choice, subject to conditions set by court. The purpose of bail is, therefore, to permit an accused person to temporarily gain his liberty, by leaving prison and attending his trial while coming from home or any other place of their choice, subject to conditions set by court. Obita Charles v Uganda Criminal Miscellaneous Application No. 68 of 2023.

90 Juandla. 27/03/2024

Article 28(3a) of the Constitution of the Republic of Uganda 1995 **as amended** provides that all person charged with a criminal offence shall be presumed innocent until proved guilty or pleads guilty.

Article 23(6)(a) of the Constitution stipulates that where a person is arrested in respect of a criminal offence the person is entitled to apply to court to be released on bail, and the court may grant that person bail on such conditions as the court considers reasonable.

It is trite law that a person whose liberty has been deprived by imprisonment before trial or when not serving a sentence is free to apply for bail. However, the discretions to grant or not grant bail lies with court, which has to take all interest of justice of parties. Kayongo Bashir v Uganda Miscellaneous Application No.158 of 2019.

The discretionary power of the court to grant bail is pronounced in Section 14(1) of the Trial on Indictments Act which provides that High court may at any stage in the proceedings release the accused on bail upon satisfaction of a recognizance.

The factors that court puts into consideration when deciding whether to grant bail are stipulated in **Section 15** of the aforementioned act to include the presence of exceptional circumstances such as: grave illness certified by medical officer of the prison or other institution or place where the applicant is detained as being incapable of adequate medical treatment while applicant is in custody, certificate of no objection signed by the director of public prosecutions and the infancy or advanced age of the applicant.

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The same grounds are reproduced in Guideline 14(1) of the **Constitution (Bail Guidelines for Courts of Judicature) (Practice)** Directions, 2022 provides that for bail to be granted in capital offences and other grave offences there must be exceptional circumstances.

Guideline 14(2) lists the exceptional circumstances to include;

- a) Grave illness certified by medical officer of the prison or other institution or place where the applicant is detained as being incapable of adequate medical treatment while applicant is in custody - b) I certificate of no objection signed by the director of public prosecutions - c) the infancy or advanced age of the applicant

Be that as it may, the requirement for exceptional circumstance to be proved before a person is granted bail have been set aside in Foundation for Human Rights Initiative V Attorney General Constitutional Petition 20/2006.

In Abacha v Uganda Misc. Criminal Application No.004 of 2016 $it$ was ruled "that in bail applications, court should lean in favor of and not against the liberty of the accused as long as the interests of justice will not be prejudiced. It is for that reason that this court is empowered to exercise its discretion to grant bail even when none of the exceptional circumstances have been proved, proof of exceptional circumstances is not mandatory".

10 Julionals 27/03/2024

I have addressed my mind to the submissions, attached evidence and relevant authorities of counsel the applicant and those of the respondent and accordingly make the following observations;

The respondent stated that since the applicant's three sureties did not attach any documentary proof that they will be in position to pay for the bond incase the applicant absconds and the sureties should therefore not be found substantial. I find that this is not an essential factor that should be considered when determining the suitability of a surety. Be that as if may, the bank statements of the sureties were attached in the affidavit in rejoinder as proof of their financial capacity to meet cash bond.

Guideline 15 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 stipulates the factors taken into account to determine suitability of a surety include:

(a) the age of the surety;

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

The sureties presented by the applicant are substantial given their places of work, residence, ages, the fact that they hold places of authority in his life and can exercise their authority over him to attend court.

Williamdle 2024 27/03/2024

In the instant case the applicant has been on remand for 2 years and has never been tried even though he was committed. No evidence of any other charges against him has been presented or evidence showing that he has been granted bail before and has absconded. This court understands that the applicant was charged with a grave offence however one is to be presumed innocent till proven guilty or till they plead guilty.

I find that the applicant has satisfied all the pertinent requirements for the grant of bail such as; proving that he has a fixed place of abode and providing substantial sureties, the application for bail is therefore allowed on the following terms;

- 1. The applicant is given cash bond of Five million Uganda Shillings. - 2. The applicant shall deposit his travel document(passport) in this court. - 3. Each of the sureties are bound in the sum of Ten million Uganda Shillings not cash. - 4. The applicant shall report to the Deputy Registrar of this court once every month with effect from 27th April, 2024 until the final disposal of the main criminal case.

## I SO ORDER

Demonde $27/03/2024$ **JACQUELINE MWONDHA**

JUDGE