Kongo v Uganda (Criminal Miscellaneous Application 10 of 2024) [2024] UGHC 630 (10 July 2024)

Full Case Text

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Criminal Miscellaneous Application No. 10 of 2024

(Arising from Criminal Case No. SOR-CO-AA 03 of 2024)

(Arising from Soroti CRB No. 09/2024)

Kongo John :::::::::::::::::::::::::::::::::::: ::::::::::::::::::::::::::::::::::::::

Versus

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

Before: Hon. Justice Dr Henry Peter Adonyo

Ruling

1. Background:

Kongo John (the applicant) was charged with the offence of aggravated defilement contrary to sections 116(3)(4)(a) of the Penal Code Act (PCA), Cap 128. It is alleged that the applicant, on 6th January 2024 at Cell H Senior Quarters Ward in Soroti City, 20 performed a sexual act with Tumwesigye Blessing Ritah, aged 12 years old.

## 2. Legal basis of the Application:

The applicant brought this application by a Notice of Motion under Articles 23(6)(a) and 28(1) and (3)(a) of the Constitution of the Republic of Uganda, 1995, (the Constitution), and Sections 14 and 15 of the Trial on Indictments Act, Cap 25 (TIA), 25

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- for orders that the applicant be released on bail pending his committal to the High $\mathsf{S}$ Court, hearing and final determination of his case. - 3. Grounds:

The applicant deposed on the grounds in his affidavit in support to the applicationwhich briefly are that;

- The applicant is aged 42 with a constitutional right to apply for bail, 10 - He is presumed innocent until proven guilty or until he pleads guilty, - He has been in detention since 12th January 2024,

- He has a fixed place of abode at Soroti city within the jurisdiction of this court, He has no past criminal record (antecedents) and, - He has proposed two sureties who understand their obligation to this court and 15 will be presented for examination and approval. - 4. Grounds in objection Affidavits in reply:

Mr Okello Paul, a state attorney c/o ODPP - Soroti Office, deposed an affidavit in reply objecting to the instant application in which he briefly stated that;

- The applicant is most likely to abscond bail in fear of the severe sentence upon 20 conviction since aggravated defilement which the applicant is charged with attracts a maximum penalty of death, - The applicant will be committed since the prosecution is done with the inquiries in the matter, - The applicant is likely to interfere with the prosecution witnesses if released on 25 bail because the witnesses are in the locality of the accused's aread,

- No documentary proof such as land sale agreement, certificate of Title and/or $5$ tenancy agreement has been availed to prove that the applicant and his sureties have fixed places of abode within the jurisdiction of this Honorable Court, - The occupations of the proposed sureties is not stated hence a high likelihood that they will not be able to pay the recognizance pledged by the court. - 5. Submissions: 10

Through Counsel Solomon Orikot, the applicant filed written submissions arguing this application. The respondent also filed submissions.

In making my decision, I have carefully taken into account the submissions, application, affidavits, documents, legal authorities, and laws.

## 6. Decision of Court: 15

Bail is an agreement between the court and an applicant consisting of a bond with or without surety for a reasonable amount as the circumstances of the case permit, conditioned upon the applicant appearing before such a court on a date and time as named in the bond to start his trial. (see *Uganda Vs Lawrence Luzinda1986 (HCB) 33*,

per Okello J as he then was) 20

> Firstly, the presumption of innocence is the foundational basis upon which a must court exercise its discretion of whether to allow or reject an application for bail. This is because Article 28(3)(a) of the Constitution of the Republic of Uganda, 1995, 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. 25 See also Article 11 of the Universal Declaration of Human Rights and Article 14(2) of the International Covenant on Civil and Political Rights.

Secondly, where a person is arrested in respect of a Criminal Offence, he is entitled $\mathsf{S}$ to apply to the Court to be released on bail, and the Court may grant that person bail on such conditions as the Court considers reasonable (See: Article 23(6)(a) of the Constitution of the Republic of Uganda.

The constitutional declarations above point to a three-point rationale when an application for bail is presented in court and these are: 10

- The presumption of innocence of an accused, - The right of the accused to apply for bail, and

The discretion of this court to either grant or reject the instant application.

From his affidavit, the applicant concedes that this Honourable Court has the discretion to release him on bail pending trial or not. He also alludes to his right to 15 apply for bail.

Aggravated defilement is bailable; however, the court's discretion to grant or reject an application of this nature does take into account the circumstances of each case and the evidence adduced by an applicant which must guarantee that the applicant will return to the court to attend trial.

Section 14(1) of the Trial on Indictments Act, Cap 25 stipulates the position outlined in Article 23(6)(a) of the Constitution. It fortifies this court's discretion to release an accused person, at any stage of the proceedings, on taking from 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 25 a date and at such a time as is named in the bond.

- The Constitution (Bail Guidelines for Courts of Judicature) Practice Directions, 2022, $\mathsf{S}$ under paragraph 5, provides the general principles in consideration of a bail application thus: - 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 applicant and the interest of justice. - The above is legal provisions regarding bail and I will now turn to the merits of this 15 application.

Under Section 15(1) of the Trial on Indictments Act, the High Court may refuse to grant bail to persons charged with offences such as aggravated defilement unless such applicant proves, to the satisfaction of the court, that he or she will not abscond

when released on bail and that exceptional circumstances exist justifying his or her 20 release.

The applicant, in his affidavit in support of the application, did not plead nor is required to prove exceptional circumstances which according to the case of Foundation for Human Rights Initiatives v Attorney General (Constitutional Petition

No. 20 of 2006) [2008] is not mandatory any more given thw fact that the courts $25$ have the discretion to grant bail even when none is proved.

See also: Uganda vs Kizza Besigye Constitutional Reference No. 20 of 2005 where it was held that;

"Both High Court and subordinate courts are still free to exercise their discretion judicially and to impose reasonable conditions on the applicant." In addition to such reasonable conditions that may be imposed on an applicant by the court, Section 15(4) of the TIA provides that;

In considering whether or not the accused is likely to abscond, the court may take into account the following factors; 10

- (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 no previous occasion when released on bail failed to comply with the conditions of his or her bail; and

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

In deciding whether or not to grant bail to the applicant, therefore, the court is further enjoined to consider an aplicant's demonstration that he will not abscond trial and so the above factors must be considered individually as below.

a) Fixed place of abode:

In his affidavit supporting his application, the applicant stated that he has a fixed place of abode in Cell H, Senior Quarters ward, West division, Soroti city within the court's jurisdiction.

Contrariwise the respondent objected to the applicant's averment contending that 25 whereas the introductory letter imports the fact of the applicant being a resident of Cell H, Senior Quarters ward, West division, Soroti city within the court's jurisdiction, no documentary proof such as land sale agreement, certificate of title

$\mathsf{S}$ and/or tenancy agreement has been availed to prove that they he has a fixed place $\mathsf{S}$ of abode within the jurisdiction of this Honorable court.

The respondent also alluded to the allegation that the applicant's residency can change at will reiterating her objection to the residency without documentary proof.

While the law does not define the phrase 'fixed place of abode,' my interpretation is

that a fixed place of abode ordinarily must be within the jurisdiction of the court 10 considering the bail application. This means that one is traceable and is not likely to abscond, as one would easily attend court whenever required.

Section 15(4) (a) of the Trial on Indictments Act is the law in regard to an applicant presenting proof of a fixed place of abode as one of the determinants as to whether

the applicant is likely to abscond once granted bail but also the failure of proving the 15 same, bail can be denied.

The said above provision is further amplified by paragraph 13(k) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions.

In tandem with the averment in his application that the applicant has a fixed place

- of abode, the particulars on his annexed copy of his National Identity Card "A1", 20 which I have examined, are aligned with annexure "A", the LC1 letter that renders the view that the applicant is a resident of Cell H, Senior Quarters ward, West division, Soroti city within the court's jurisdiction where he has so far lived for over ten years as at 02.02.2024 when the chairperson Etiang Silver wrote the letter. - In the case of Orena John Mackay vs Uganda HCMA No. 022 of 2022, I was og the 25 view which I still maintain that ... the applicant has shown that he has a fixed place of abode within the jurisdiction of this court and he is more likely than not going to

- abscond his trial when released on bail. This he has done so by providing an $\mathsf{S}$ introductory letter from the Local Government authorities of Local Council I ....he has also presented his national identity card, which is a government document and is attached to his affidavit which document provided for his identification in tangible details. - Given the clear position of the law and the legal interpretation thereiof as above, I 10 am thus persuaded that the applicant proved his fixed place of abode, which aids in his traceability if granted bail and would disagree with the respondent's assertion that an applicant who has provided all those documents in proof of fixed place of abode must still provide other documentary proof such as land sale agreement, 15 - certificate of title and/or tenancy agreement for a court to believe that such an applicant indeed has a fixed place of abode within the jurisdiction of this Honorable court.

These extra requirements of other documentary proof such as land sale agreement, certificate of title and/or tenancy agreement as pointed by the respondent are not grounded in law but are mere wishful thinking of the respondent. They can only be taken as submissions from the bar.

## b) Proposed sureties:

The applicant proposed two sureties whose particulars he disclosed as;

a. Mwaura John, the applicant's elder biological brother, a reknown businessman, resident of Cell H, Senior quarters ward, Western division, Soroti City, holder of national identity card CM690381010LAL and with an introductory letter. Annexures B and C.

b. Wanyama Bernard, the applicant's family friend, a former flying school staff resident of Cell H, Senior quarters ward, Western division, Soroti City, holder of national identity card CM68042102K441 and with an introductory letter. Annexures D and E.

The respondent contended that the proposed sureties did not attach documentary proof of their residences, which were mentioned in the introductory letters, and 10 that they did not state and prove their occupations, thus indicating a high likelihood that they will not be able to answer to the recognisance pledged by the court.

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 15 furnishes security which may be forfeited to State if the applicant fails to 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

provide that in considering whether an accused is likely to abscond the court shall 20 consider whether the accused has sound sureties within the jurisdiction to 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 the determinants on the suitability of a surety, thus;

- (1) When considering the suitability of a surety, the court shall take into 25 - (a) The age of the surety; - (b) Work and residence address of the surety; - (c) Character and antecedents of the surety;

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- (d) Relationship to the accused person; and - (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 alien's identification card; - 10

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(b) An introduction letter from the local council 1 Chairperson of the area where the surety is ordinarily resident or

The applicant disclosed his relationship to the proposed sureties and provided

copies of their National Identification documents and their respective local council 15 one chairpersons' introductory letters (annexures "B, C, D, E"), which I have thoroughly examined.

For Wanyama Bernard, the resident information in the introductory letter aligns with information in the national identity card unlike for Mwaura John Ngoru whose

duplicate copy of the national identity card only captured the front part and I was 20 constrained to fully peruse it, although he must provide an original national identity card for verification before the deputy registrar of this court.

The applicant through an affidavit in rejoinder disclosed the occupations of the suretiesas follows that the 1st surety-Mwaura is a businessman and 2nd surety

Wanyama Bernardis a former flying school staff. $25$

In my view, I would be speculating in forming the opinion that the proposed sureties cannot afford the recognisance of this court.

I am further satisfied that the disclosed relationships of the sureties as to the $\mathsf{S}$ applicant of an elder brother and a friend manifest the suretie's overarching authority over the applicant, given the assurance that they have undertatken to ensure that the applicant abides by any of the terms and conditions of the release on bail and to attend his trial to the conclusion and their understading their obligation to the court and to the applicant. 10

I ,therefore, on the basis of the above do find the proposed sureties sound and substantial to guarantee the applicant's return to attend his trial except that the 1st surety, Mwaura John, furnishes the registrar of this court with his original national identity card for perusal.

## 7. Conclusion: 15

From the above conclusions, I am of the singular view and convinced that the grant of bail in this application is merited and that doing so will not in any way subvert the cause of justice, given the substantiality of the sureties and the clear proof that the applicant has a permanent resident within the jurisdiction of the High Court.

## 8. Bail Conditions and Terms: 20

Accordingly, bail is thus granted to the applicant pending his trial upon the conditions set below, which have been set taking into account the nature of the offences he is charged with.

The following bail terms are set;

- a. The applicant is to deposit a **Cash Bond** of Shs. 2,000,000/= 25 - b. Each of the sureties presented is bound in the sum of Shs. 10,000,000/=not cash.

- c. The $1^{\ensuremath{\text{st}}}$ surety, Mwaura John is ordered to furnish the Registrar of this court his original national identity card for perusal and a copy for record purposes. - d. The applicant and each of his sureties are ordered to provide a recent photograph, telephone numbers and copies of national IDs to the Registrar of this court and the Chief Resident State Attorney, Soroti, for filing and for record purposes. - e. The Applicant is to report to the Registrar of this Court once a month on the last Monday of each month with effect from 5th August 2024 until otherwise directed by the court.

I so order.

Hon. Dr. Justice Henry Peter Adonyo

Judge 10th July 2024

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