Eragu v Uganda (Criminal Miscellaneous Application 18 of 2024) [2024] UGHC 822 (13 August 2024)

Full Case Text

The Republic of Uganda

In the High Court of Uganda at Soroti

Criminal Miscellaneous Application No. 0018 of 2024

(Arising from Criminal Case No. AA-018-2022, Police Case No. 694 of 2021)

Eragu Charles :::::::::::::::::::::::::::::::::::: 10

#### Versus

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

$25$

$5$

#### Before: Hon. Justice Henry Peter Adonyo

# Ruling on Bail

1. Introduction.

The applicant Eragu brought this application by way of notice of motion under Articles 20,21 (1), 23(6)(a), 28(1) & (3)(a) and Article 44(c) of the Constitution, 20 Sections 14(1), 15 (1)(b) & (4) of the Trial on Indictment Act and Rules 2 & 4 of the Judicature (Criminal Procedure) (Applications) Rules for orders that;

The applicant currently detained at Soroti Government Prison on alleged commission of the offence of Aggravated murder be released on bail pending committal/trial to high court on such terms and conditions that this honourable

court deems fit and just.

### 2. Grounds.

The grounds of this application as set out in the application and expounded in the supporting affidavit of the applicant are that;

- a) The applicant is charged with the offense of murder c/s 188 and 189 of the Penal Code Act and is presently remanded at Soroti Government Prison since the $18^{th}$ day of June 2021. - b) The applicant has a constitutional right to apply for bail pending trial and this honourable court has discretion to grant them bail. - c) That the applicant has a fixed place of aboard within the jurisdiction of this honourable court. - d) That the applicant has substantial and sound sureties who reside within the jurisdiction of this honourable court and will ensure that the applicant complies with all the bail conditions set by this honourable court and who will further ensure that they appear in court for trial on all days when the case is called for hearing. - e) That there are no other pending criminal charges against the applicant nor does the applicant have any previous criminal record. - f) The applicant shall not abscond when released on bail and it would be fair and just that the application be granted.

The respondent was served with this application and an affidavit of service sworn by Akello Angela dated 18th of April 2024 is on record. However, a copy of the $25$ received copy is not attached to the affidavit of service.

There is no reply by the respondents on record.

3. Representation.

The applicant was represented by M/s Atigo & Co. Advocates.

$\mathsf{S}$

- This application proceeded by way of written submissions which have been $5$ considered in its determination. - 4. Determination.

The presumption of innocence is the primary principle for which a court may, in the exercise of its discretion, release an accused person on bail pending trial as

stated Article 28(3)(a) of the Constitution of the Republic of Uganda, 1995 which 10 provides that;

Every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty or until that person has pleaded guilty.

Article 23(6)(a) of the Constitution of the Republic of Uganda provides that:

Where a person is arrested in respect of a Criminal Offence, he is entitled to apply 15 to the Court to be released on bail, and the Court may grant that person bail on such conditions as the Court considers reasonable.

In his affidavit the applicant conceded to this Honourable Court's discretion to release him on bail pending his committal and hearing of the case.

Capital offences such as murder in this instant application are bailable; however, 20 whether the court is inclined to exercise the discretion to grant or not is a matter dependent on the circumstances of each case.

Section 14(1) of the Trial on Indictments Act, Cap 23 enhances the stance outlined in Article 23(6)(a) of the Constitution. It underpins this court's discretion

to release an accused person, at any stage of the proceedings, on taking from 25 him or her a recognisance consisting of a bond, with or without sureties, for such an amount as is reasonable in the circumstances of the 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, $\overline{5}$ 2022 under paragraph 5 provide for the general principles applicable in the consideration of a bail application thus;

The court shall, in considering a bail application, be guided by the following principles as enshrined in the Constitution—

- (a) the right of an applicant to be presumed innocent as provided for in article 10 $(3)(a)$ 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 trial; - (d) the discretion of court to grant bail on such terms and conditions as the court

15 considers reasonable; and

(e) the need to balance the rights of the applicant and the interests of justice.

Paragraph 12 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions provides for contents of a bail application thus;

An application for bail shall contain the particulars of the applicant, accompanied $by-$

(a) a copy of the applicant's national identity card, or passport or aliens identification card, or employment card, or student identity card;

(b) an introduction letter from the Local Council 1 chairperson of the area where the applicant resides;

(d) expounded grounds for the application.

Section 15(1) of the Trial on Indictment Act provides hence; $\mathsf{S}$

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-

(a) that exceptional circumstances exist justifying his or her release on bail; and

(b) that he or she will not abscond when released on bail. 10

In this section, "exceptional circumstances" means any of the following—

(a) grave illness certified by a medical officer of the prison or other institution or place where the accused is detained as being incapable of adequate medical treatment while the accused is in custody;

- (b) a certificate of no objection signed by the Director of Public Prosecutions; or 15 - (c) the infancy or advanced age of the accused.

However, these special circumstances have been found non-mandatory.

Section $15(4)$ provides that;

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 or is ordinarily resident outside Uganda;

(b)whether the accused has sound sureties within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail;

(c) whether the accused has on a previous occasion when released on bail failed to 25 comply with the conditions of his or her bail; and

(d)whether there are other charges pending against the accused.

In deciding whether to grant or not to grant bail to an applicant, a court is $\mathsf{S}$ enjoined to consider an applicant's demonstration that they will not abscond trial by considering the above factors, which in respect of this application, I do examine and resolve upon one by one as below.

a) Fixed place of abode.

- The applicant under paragraph 5 of his affidavit in support states that he has a 10 fixed place of abode at Ojeera Cell, Omolotok Ward, Kidetok Town Council in Serere District. He attached a copy of Lc1 introductory letter marked 'EE' dated 4th of March 2024, herein the Lc1 Chairperson states that Eragu Charles is a true resident of Ojeera cell his area of jurisdiction. - A copy of his national ID attached as EE indicates that he is 39 years old and a 15 resident of Omolotok village, Kidetok parish, Pingire Sub-county, Kasilo County in Serere District

Section 15(4) (a) of the Trial on Indictment Act provides that in considering whether an accused is likely to abscond court may take into consideration whether the applicant has a fixed place of abode within the jurisdiction of the court.

This position of the law is amplified in nearly similar wordings by paragraph $13(k)$ of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions.

The essence of a fixed place of abode is the traceability of an accused person in the event of abscondment or whenever necessary.

While the Law does not define the phrase 'fixed place of abode' what is important is that the fixed place of abode must be within the jurisdiction of the court considering the bail application. Where the applicant fails to prove this under section 15(1) of the TIA, a court may deny him bail. $\frac{1}{2}$

On the basis of the evidence put forward by the applicant in terms of his National $5$ Identity card and the recommendation letter from his LC1 chairperson, I find these documents sufficient in proving that the applicant has proved his fixed place of abode. Accordingly, this requirement is answered in the positive.

b) Sureties.

10 The applicant presented three proposed sureties as is seen from paragraph 11 of his affidavit in support of this application and these are;

Mr. Omoding Francis, Mr. Emod Joseph and Ms. Ikojo Hellen. All are stated to be farmers and residents of Omolotok Ward, Kidetok Town Council in Serere District. Omoding and Emod are the applicant's brothers while Ikojo is his sister.

These proposed sureties presented also their LC1 introductory letters and copies 15 of their national IDs which are attached on record as AAA2, AAA3 and BB2. The letters dated 4th March 2024 indicate that the sureties are true residents of Ojeera Cell, Omolotok Ward.

Omoding's national ID CM83097101ZJJF indicates that he is 41 years old and a

resident of Omolotok village, Kidetok parish, Pingire Sub-county, Kasilo County in 20 Serere District.

Emod's national ID CM760971030CTH indicates that he is 47 years old and a resident of Kidetok Central, Kidetok parish, Pingire sub-county, Kasilo County in Serere District.

Ikoju's national ID CF509710342DK indicates that she is 48 years old and a 25 resident of Omolotok village, Kidetok parish, Pingire Sub-county, Kasilo County in Serere District.

$5$ The applicant under paragraph 10 of his affidavit in support states that the sureties will comply with the conditions set by this Honorable court and also ensure his appearance in court.

Counsel for the applicant submitted that she labored to explain to the sureties their obligations and consequences of failure to ensure that the accused person

attend court and they understood the same, she prayed this court finds them 10 substantial.

A "surety" is defined under Paragraph 4 of the Constitution (Bail Guidelines for Courts of Judicature) Practice Directions to mean a person who undertakes to ensure that the applicant will appear in court and abide by the bail conditions and

who furnishes security which may be forfeited to State if the applicant fails to 15 appear in court.

Furthermore, Section 15 (4)(b) of the Trial on Indictment Act and paragraph 13(1) (I) of the Constitution (Bail Guidelines for Courts of Judicature) Practice Directions provides that in considering whether an accused is likely to abscond the court

shall consider whether the accused has sound sureties within the jurisdiction to 20 undertake that the accused shall comply with the conditions of his or her bail.

Paragraph 15 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions provides for determinants on the suitability of a surety thus;

(1) When considering the suitability of a surety, the court shall take into account the following factors—

- (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; and $\overline{5}$

(e) any other factor as the court may deem fit.

(2) Subject to sub-paragraph (1) the proposed surety shall provide documentary proof including—

(a) a copy of his or her national identity card, passport or aliens' identification card; 10

(b) an introduction letter from the Local Council 1 Chairperson of the area where the surety is ordinarily resident; or

The sureties have proved their identities, their places of origin and their 15 connections to the applicant.

I have also considered the age of these sureties and find that the sureties being older in age to the applicant which invariably means that they have the possibility of command over the applicant using cultural and familial acquired authority over

the applicant especially with regard to ensuring that the applicant obeys court 20 orders.

The above facts being so, I am inclined to find that the sureties presented by the applicant are substantial and are able to ensure the attendance of the accused person before court whenever required, given their clear relationships to and

25 authority to the applicant. This requirement is thus substantiated and is answered in the positive.

# 5. Conclusion.

$\mathsf{S}$

On the basis of the evidence put forward and considering that in *Uganda vs. Col.* Rtd Dr Kiiza Besigye Constitutional Reference No. 20 of 2005, it was held that the court ought to balance the constitutional right of the applicant with the need to protect society from lawlessness, I am inclined, as I now do, to exercise the discretion of this Honourable Court and grant bail to the applicant pending his trial on the following stringent conditions;

- 1) The applicant is to deposit a Cash Bond of Shs. 2,000,000/-. - 2) Each of the Sureties presented is bound to this Honourable Court in the sum of Shs. 5,000,000/- not cash. They must ensure that the applicant attend his trial till its completion without fails otherwise any single failure shall render the sureties liable to pay the amount each is bound with. - 3) The applicant and each of his sureties are also ordered to provide a recent photograph, telephone numbers and copies national IDs to the Registrar of this court and to the Chief Resident State Attorney Soroti for filing and record purposes and enable traceability. - 4) The Applicant is to report to the Registrar of the Court once a month on the first Monday of each month beginning with 02/09/2024 until otherwise directed by this Honourable Court.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

13th August 2024