Emitu v Uganda (Criminal Miscellaneous Application 15 of 2023) [2023] UGHC 481 (1 August 2023)

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Criminal Miscellaneous Application No. 15 of 2023

(Arising from Criminal Case No.: AA-018-2022) (*Arising from SOR-22-CR-AA-015/2022, CRB 694/2021*)

Emitu John Patrick ::::::::::::::::::::::::: <pre>....................................

### Versus

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

# Before: Hon. Justice Dr Henry Peter Adonyo

#### Ruling

## 1. Background:

Emitu John Patrick (hereinafter called "the applicant") was charged and later indicted with the offence of murder contrary to Sections 188 and 189 of the Penal

Code Act, Cap 120 as amended. The accused (now applicant), together with Eragu 20 Charles and Etochu Simon and others still at large, on 18<sup>th</sup> December 2021 at Oiera cell in Serere district with malice aforethought killed Okurut Gilbert.

2. Legal basis of the Application:

The applicant brought this application by a Notice of Motion under Articles 23(6)(a)

and 28(1)(3)(a) of the Constitution of the Republic of Uganda, 1995 (hereinafter 25 "The Constitution") and Sections 14 and 15 (1)(b)(c) of the Trial on Indictments Act, Cap 23 and Rules 2 and 4 of the Judicature (Criminal Procedure) (Applications) Rules. SI 13-8 for orders that the applicant be released on bail pending trial.

The application is premised on grounds briefly stated in the application and enhanced in the affidavit supporting the application deposed by the applicant. That; 30

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- a) The accused/applicant is presumed innocent until proven guilty. - b) The applicant was charged with the offence of murder contrary to sections 188 and 189 of the Penal Code Act, Cap 120 and was remanded by the Chief Magistrate's Court of Soroti at Serere on 9<sup>th</sup> August 2022. - c) The applicant has been committed for trial in this Court since April 2023 and has since been on remand at Soroti Government Prison, but the hearing of the case has not been able to take off (a copy of the indictment attached as annexure B). - d) The applicant is a holder of National Identification Card No. 012014918/NIN CM73097103QLEJ (a copy of the identity card is attached as $C$ ). - e) The applicant has a permanent place of abode at Ojeera village, Omolotok parish, Pingire sub-county, Kasilo county in Serere district, which is within the jurisdiction of this Court, and as such, the applicant will not abscond if released on bail. - f) The applicant undertakes to avail himself to this Court whenever summoned to attend the trial. - g) The offence of murder that the applicant is charged with is bailable by this Court. - h) The applicant has no past criminal record (antecedents) or any other charge(s) pending against him in any Court. - i) The applicant has three substantial sureties who understand their obligation towards this Court and undertake to present themselves to this Court for examination and approval.

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j) The applicant undertakes to abide by any bail term conditions set by the Court.

The respondent did not file an affidavit in reply to this application in spite of an affidavit of service dated 20<sup>th</sup> June 2023 which indicates that the instant application was received by the Directorate of Public Prosecutions - Regional Office -Soroti on

19<sup>th</sup> May 2023, but it has not been responded to. 10 Accordingly, I am constrained to consider only the merits of the application without the input from the respondent while determining this application.

# 3. Submissions:

- Since the respondent did not file any affidavit in reply, this application is apparently 15 unopposed, meaning that there is no objection to it and to the sureties presented in court or their documents or on any of the grounds relied upon by the applicant. In arguing this application, the applicant, through his counsel (M/s Amodoi Associated Advocates), filed written submissions. - The submissions along with the application, the affidavit in its support, the attached 20 documents, the relevant legal authorities and the laws applicable are considered and taken into account while determining this application. - 4. Decision:

The primary principle for which a court may release an accused person on bail pending trial is the presumption of innocence. This legal principle is enshrined under 25 Article 23 of the Constitution of the Republic of Uganda, 1995 which is under Chapter Four (Protection and promotion of fundamental and other human rights and freedoms) of the Constitution. Article 23 is about Protection of personal liberty. Article 23(6) of which provides of which provides that that:


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

Further, under Article 28 (3) (a) of the Constitution it is provided that,

Every person who is charged with a criminal offence shall be presumed to be innocent

- 10 until proved guilty or until that person has pleaded guilty. In addition, under Section 14(1) of the Trial on Indictments Act. Cap 23 the provisions outlined in Article 23(6)(a) of the Constitution are articulated and empowering the High Court with the discretion to release an accused person on bail at any stage of the proceedings, on taking from him or her a recognizance consisting of a bond, with - or without sureties, for such an amount as is reasonable in the circumstances of the 15 case, to appear before 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, No. 5, reinforce the above legal positions by providing the general principles which

a court may take into account while considering a bail application while being guided 20 by the relevant constitutional principles.

The Guidelines are that the Court while considering bail should take into account the following;

a) The right of an applicant to be presumed innocent as provided for in article 28(3) 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 the trial; - d) The discretion of the court to grant bail on such terms and conditions as the court considers reasonable; and


e) The need to balance the rights of the applicants and the interest of justice. In relations to personal liberty, the position of the law which has been judicially noticed is that an accused person must not be deprived of his freedom unnecessarily or as a mere punishment if he has not been proved guilty by a competent court of law. (See Tumwirukirire Grace v. Uganda; Miscellaneous Criminal Application 94 of 2019 [2020]).

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This principle of protection of personal liberty was similarly articulated in the case of Col (Rtd) Dr Kizza Besigye v Uganda Criminal Application No.83 of 2016, wherein the late Hon. Justice Masalu Musene (as he then was) observed that;

"...court has to consider and balance the rights of the individual, particularly with regard to personal liberty..." The active principle in granting bail is that of upholding the liberty of the individual while simultaneously protecting the administration of justice. (See: Abindi & Another v Uganda; Miscellaneous Criminal Application 20 of 2016 [2017]).

Arising from all the above, an accused person may be granted bail if he /she fulfils the set conditions for his or her release, has a fixed place of abode, and has sound 20 sureties capable of guaranteeing that he will comply with the conditions of his or her bail, and is willing to abide by all other conditions set by the court.

Additionally, although Sections 14 and 15 of the Trial on Indictments Act provides that a person indicted of a serious offence is stated to only be able to be released

on bail if he or she proves to the satisfaction of the court that special circumstances 25 exist to warrant his or her being released on bail with the circumstances being regarded as "special" including grave sickness, infancy or old age, the fact that the applicant has been on remand for over 12 months before committal for trial as per Article 23(6)(c) of the Constitution, and that the state does not oppose the applicant

- being released on bail, the proof of these circumstances, nonetheless, is not $\overline{5}$ mandatory as the courts have the discretion to grant bail even when none is proved. This position of court in the case of Foundation for Human Rights Initiative Vs Attorney General, Constitutional Petition 20 of 2006 where it was held that exceptional circumstances are no longer a requirement for release on bail as the - court found section15 (1) (a) of the Trial on Indictment Act (TIA) contravened the 10 Constitution.

In relation to the instant application where the applicant is charged with the offence of murder which is of a capital nature, I am of the view that, though exceptional circumstances are no longer a legal requirement for the release of the applicant,

they can guide the general final consideration of whether to grant or refuse to grant 15 bail to the applicant.

The applicant herein stands charged with the offence of murder an offence of which murder, upon conviction, an accused person is liable to suffer death as a maximum sentence. The fact of one being liable to suffer death upon conviction demonstrates

graveness of the accusation against the accused person which necessitates careful 20 consideration to be taken into account before the court can consider whether to grant or not grant bail to the instant accused person.

The applicant herein has not pleaded nor proved any exceptional circumstance to warrant his release on bail. I am cognizant of the fact that in a case such as murder

the court cannot simply ignore the gravity of the charged and take lightly an 25 application of this nature. Therefore, considering that the offence with which the applicant is charged is of a grave nature for which the punishment is to suffer death upon conviction, proof of exceptional circumstances in addition to other requirements is, in my view, required for consideration of the instant application.

From the facts of this matter, and the argument presented for this application, I do $\mathsf{S}$ find that the applicant has failed to prove any exceptional circumstance for his release on bail pending the hearing of his case.

I shall, however, for completeness sake consider the other requirements for which are;

- a. The applicant's fixed place of abode within the jurisdiction of this court, - b. The soundness and substantiality of the sureties presented and their undertaking to have understood their roles and obligations in this position, - c. The applicant's undertaking to respect and abide by the terms of the grant of bail and whether he shall not intimidate or interfere with the investigations or witnesses thereof. - d. The antecedents of the applicant as are known. - e. Possibility of interference with the witness(es).

I am equally cognizant of the fact that the accused/applicant has the right of the accused to apply for bail, that this court has jurisdiction to hear and determine an application such as this one, and the court's discretion in such applications. However, I have borne in my mind the overarching consideration that the accusation levelled against the applicant is grave and that should never be ignored.

The applicant states that he was charged with the offence of murder and remanded by the Chief Magistrate's Court of Soroti at Serere on 9<sup>th</sup> August 2022 and that he

was committed for trial in this court in April 2023 and has since been on remand at 25 Soroti Government Prison with no hearing of the case set (A copy of the indictment is attached as annexure B).

- The perusal of annexure B shows that, indeed, the applicant has been on remand $\mathsf{S}$ since 9<sup>th</sup> August 2022, which is almost a year without trial and since no Cause List is attached to this application, it is clear to me that the date of his trial is not known as criminal cases are fixed for hearing before the High court by way of sessions as is the practice and a session is dependent on many things, some of which, like availability - of funds for the commencement of the trial et al, this Honourable Court is control 10 of.

Ordinarily an accused person should not be kept on remand unnecessarily without a trial because of the presumption of innocence of such an accused as is enshrined under Article 28(3) of the Constitution.

- It is, therefore the finding of the court that the period of one year without trial is a 15 long time, yet the right to a fair hearing guarantees a speedy trial and under Article 126 (2) (b) of the Constitution of Uganda justice should not be delayed. The applicant states that he is a holder of National Identification Card No. 012014918/NIN CM73097103QLEJ which he has attached as annexure 'C'. - He also states that he has a permanent place of abode at Ojeera village, Omolotok 20 parish, Pingire sub-county, Kasilo county in Serere district, which is within the jurisdiction of this Court, and as such, he will not abscond if released on bail. Section 15(4) of the Trial on Indictments Act underscores the importance of proof of a fixed place of abode as not only a determinant as to whether an applicant for - bail is likely to abscond once granted bail but also the failure of proving the same, 25 may lead to bail being denied.

Section 15(4) of the TIA provides that;

- 1) 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— - 4) 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 In the case of Foundation for Human Rights Initiative Vs Attorney General Constitutional Petition No. 020 of 2006, it was held that the nature of the offence, antecedents of the applicants and whether the applicants have a fixed place of abode in the Court's jurisdiction should be strongly considered by Court in an application for bail.

In this application, the perusal of Annexure 'C' indicates that the location of Omolotok village, Kidetok parish, Pingire sub-county, Kasilo country, Serere district, is at variance with that of Ojeera village, Omolotok parish, Pingire sub-county, Kasilo

- county in Serere district where the applicant avers that he has a fixed place of abode 20 and no explanation has been offered for this variance as the applicant has not bothered to attach an LC1 letter or any other document that would have attested to his having a fixed place of abode. Therefore, the applicant has failed to prove that he indeed has a fixed place of abode. - As this critical condition has not been fulfilled, I find that there is no need to proceed 25 to consider other requirements for in the case of *Uganda vs Col. Rtd Dr Kiiza Besigye* Constitutional Reference No. 20 of 2005 it was pointed out that a court while considering an application for bail ought to balance the constitutional right of the applicants with the need to protect society from lawlessness and so considering the

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fact that the applicant herein has not satisfactorily proved to me that he has a fixed $\mathsf{S}$ place of abode, I am inclined to reject his application for bail for failure to prove that he has the fixed place of abode for I am not sure of the fact that upon his release on bail he will not be tempted to abscond from his trial. That being the case, this application is disallowed.

Hon. Dr. Justice Henry Peter Adonyo

Judge 1<sup>st</sup> August, 2023

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