Byakika v Uganda (Criminal Miscellaneous Application 3 of 2023) [2023] UGHCCRD 120 (4 August 2023)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA CRIMINAL MISC. APPLICATION NO. 003 OF 2023 (ARISING FROM CRIMINAL CASE NO. AA-67 OF 2022) BYAKIKA ISAAC BAGALAMA :::::::::::::::::::::::::::::::::: $5$ **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 and Rules 2 & 4 of the Judicature (Criminal Procedure)** (Applications) Rules SI 38-8 and the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions 2022. The application was supported by the applicant's affidavit which raised several grounds that are summarized as follows: -

- 1) The applicant is presumed innocent and has no intention to plead guilty to the offence for which he is charged. - 2) The applicant 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. - 3) The applicant has a fixed place of abode at Buzidola 1 Village, Bukuutu Parish, Bulopa Sub-county, Kamuli District, within the jurisdiction of this Honorable Court.

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- 4) The applicant has substantial sureties within the jurisdiction of this Court who will ensure compliance to any bail conditions especially his attendance for his trial and he pledged to honor all bail conditions. - 5) The applicant is facing no other pending criminal charges and there is no likelihood of him interfering with investigations or prosecution witnesses. - 6) The applicant has at all times been a law abiding citizen and has never been charged and/ or convicted with any criminal offence. - 7) The applicant is a caregiver with four children of tender years, a dependent child and a wife, and he is the sole bread winner of his family. - 8) The applicant does not have any prior criminal record and he has never jumped bail before. - 9) The offence for which the applicant is charged is bailable by the High Court which has discretionary powers to release him on bail.

#### **Applicant's Submissions** 15

Counsel Kevin Amujong represented the applicant and presented three sureties as follows:

- 1) MAKONZI DANIEL, aged 30, a brother to the applicant, a businessman dealing in coffee, maize and other items and a resident of Buwoya Budiina Village, Buwoya Parish, Bugulumbya Sub-county in Kamuli District. - 2) BAGALAMA ISAAC MUKABYA, aged 32, a younger brother to the applicant, a trader in matoke and a resident of Kyamagwa Cell, Mafubira Ward, North Division in Jinja City. - 3) DHIZAALA JONATHAN aged 54, the father of the applicant and a resident at Mawoito Bukyebambe Village, Kaiira Parish, Buwenge Sub-county in Jinja District.

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Counsel Amujong contended that bail is a constitutional right subject to the discretion of Court and that under Section 14 of the TIA the conditions for the grant of bail are laid down. That although Section 15 of the TIA refers to the exceptional circumstances to which objections had been raised in the affidavit in reply, Counsel pointed out that

- the said provision was well explained in the case of Foundation for Human Rights $\mathsf{S}$ Initiative Vs Attorney General Constitutional Appeal No. 03 of 2009 which clearly points out that exceptional circumstances are not mandatory but discretionary for the grant of bail. That the major guiding principle for granting bail is that the accused person is presumed innocent until proved guilty, hence Court can exercise its discretion. Counsel cited the case of Col. (Rtd) Dr. Kizza Besigye Vs. Uganda 10 Criminal Application No. 83/2016 for the argument that this discretion should be exercised judiciously and not mechanically. Counsel then recounted the grounds in the applicant's affidavit. Specifically, on the issue of the applicant being a caregiver with children of tender years, Counsel cited Paragraph 18 of the Constitution (Bail - Guidelines for Courts of Judicature) (Practice) Directions, 2022 to the effect that bail 15 should be granted to vulnerable persons including caregivers as defined under Paragraph 4 thereof. Further, Counsel argued that in considering bail, Court looks at the gravity of the offence and the circumstances surrounding it. She invited Court to look at the circumstances of this case which she argued, could be an employment - matter as highlighted in Annexure B to the application. That in this case, the offence 20 of aggravated trafficking relates to child-victims yet the victims in this case are adults, as reflected under paragraph 6 of the affidavit in support and annexures B1, B2, B3 and B4 thereto. Counsel further contended that the applicant brought this information to the state attorney who has not responded, which means that the state is only - interested in keeping the applicant incarcerated. In relation to paragraph 2 of the 25 affidavit in support, Counsel for the applicant argued that the applicant had been kept in police custody for over ten days contrary to Article 23(4) of the Constitution.

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Therefore, the proceedings preferred against the applicant would be a nullity and are likely to be declared so. She prayed that bail be granted to the applicant.

#### **Respondent's Submissions**

objections to deny the applicant bail.

- Ms. Pamela Orogot appeared for the State and objected to the application in $5$ accordance with the affidavit in reply. She denied all contents of the affidavit in support of the application except for paragraph 1 and 19 which were not contested. She pointed out that there are no exceptional circumstances to warrant the grant of bail. She cited Paragraph 14(2) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 which provides that exceptional circumstances 10 include grave illness certified by a medical officer of the prison or other institution or place where the applicant is detained as being incapable of providing adequate medical treatment while the applicant is in custody; a certificate of no objection signed by the Director of Public Prosecutions; and the infancy or advanced age of the applicant, - none of which exist in the instant case. In response to paragraph 16 of the affidavit in 15 support, she noted that the applicant deponed that he has four school going-children and he is married but no proof had been availed by the Applicant such as birth certificates or a marriage certificate, and as such, she argued that the applicant has no family responsibilities, which means he is not a caregiver within the meaning of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022. 20 Regarding paragraph 5 & 6 of the affidavit in support, the state attorney argued that these were delving into the merits of the case yet this is a bail application. She concluded by inviting Court to consider the gravity of the offence and the State's

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

On the issue of exceptional circumstances, Counsel Amujong maintained that these are not mandatory but are rather discretionary as held in Foundation for Human Rights Initiative Vs Attorney General (supra). She argued that there are other factors which Court can consider such as the fact that the applicant has a fixed place of abode, substantial sureties, the applicant has undertaken that he will not abscond etc. In respect of lack of a marriage certificate and birth certificates, she noted that the wife was in Court and Court had examined her. Regarding delving into the merits of the case, she argued that Court looks at the gravity of the offence and the circumstances thereof. She maintained that the charges are frivolous since the victims are not children and prayed that bail be granted to the applicant.

#### **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 Sections 14 and 15 15 of the Trial on Indictments Act. The main purpose of bail is to uphold one's right to personal liberty, 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 20 during the period of trial. See Col. (Rtd) Dr. Kizza Besigye Vs. Uganda Criminal Application No. 83/2016. It is important therefore 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.

As such, a bail applicant must not be deprived of his or her freedom unreasonably or 25 as a punishment where they have not been proved guilty by a competent court of law. The fact that the applicant is indicted with a serious offence of aggravated trafficking

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is not by itself a bar to his release on bail if he satisfies the necessary requirements. In all instances, the power to grant or refuse bail is at the discretion of the Court. In this respect, Article 23(6)(a) of the Constitution, Section 14(1) of the Trial on Indictments Act Cap 23 and Paragraph 5(d) & (e) of the Constitution (Bail 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.

Regarding the requirement for the applicant to return to Court to attend his trial, the Constitutional Court in Uganda vs. Col. (Rtd) Dr. Kizza Besigye Constitutional **Reference No. 5/2005** set the principle that Court must be satisfied that the applicant will appear for trial and will not abscond. As such, the primary concern of this Court is whether the applicant will return to court to answer the charge if released on bail. In the instant case, the applicant submitted an introduction letter from the Chairperson of LC I where he resides at Buzidoolo 1 Village, Bukuutu Parish, Bulopa Sub-county

in Kamuli District. In this regard, the applicant's fixed place of abode, should he be

- released on bail, is known and not disputed by the Respondent. Secondly and more 15 importantly for purposes of this application, is the suitability and substantiality of the sureties. At the hearing, the applicant presented three sureties including his father and two brothers to whom Counsel for the applicant confirmed that he had explained their responsibilities and they had understood the same. None of the sureties was disputed by the Respondent. The said sureties submitted copies of their national identity cards 20 and introduction letters from the LC I Chairpersons from their areas of residence - which are within the jurisdiction of this Honorable Court. In my opinion, these sureties being close relatives of the applicant, I find them substantial enough to compel the applicant to adhere to his bail conditions. Therefore, I am satisfied that the applicant will be able to attend his trial after his release on bail.

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On the issue of the gravity of the offence, this Court is required to strike a balance between considering the gravity of the offence and the presumption of innocence

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guaranteed under Article 28(3)(a) of the Constitution. In so doing, Court ought to avoid as much as possible the temptation to delve into the merits of the main case but rather concentrate on the conditions upon which a bail application should be determined. In the instant case, I did not find it necessary to consider whether the

charges against the applicant are frivolous as alleged by Counsel for the applicant, as $\mathsf{S}$ this had no bearing on the determination of this application.

Accordingly, I allow the application and release the applicant on bail on the following conditions:

- 1) Cash bail of Uganda Shillings 1,000,000 only. - 10 - 2) Non cash bail against each one of his sureties to the tune of Uganda Shillings $2,000,000$ only. - 3) The applicant shall report to the Deputy Registrar of this Court on the first Tuesday of each month with effect from 12<sup>th</sup> September 2023.

Any contravention of the above terms will result into automatic cancellation of the

bail granted. 15

I so order.

### **FARIDAH SHAMILAH BUKIRWA NTAMBI**

**JUDGE** 20

Ruling delivered in open Court on 4<sup>th</sup> August, 2023.