Malole v Uganda (Criminal Miscellaneous Application 40 of 2022) [2023] UGHCCRD 124 (5 May 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA CRIMINAL MISC. APPLICATION NO. 40 OF 2022

**:::::::::::::::::::::::::::::::::::::** MALOLE ISMA:::::::::::::::::::::

#### **VERSUS**

UGANDA :::::::::::::::::::::::::::::::::::

## **BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI**

### **RULING**

This is an Application brought under Article 23(6) (a) of the Constitution of the Republic of Uganda, Section 14 (1) and 15 of the Trial on Indictment Act Cap 23, Rules 2 & 4 of the Judicature (Criminal Procedure) (Application) Rules S I 13-8.

The grounds upon which this Application are premised are contained in the Notice of Motion and affidavit in support of the Notice of Motion affirmed by the Applicant. Briefly they are that;

- 1. The Applicant was charged with two counts of murder contrary to Sections 188 and 189 of the Penal Code Act and Conspiracy to Murder contrary to Section 208 of the Penal Code Act. - 2. The offences are bailable by this Honourable Court. - 3. The Applicant's health status requires medical attention to wit surgery owing to blocked arteries in his right leg as a result of an accident that occurred while at work in the period preceding his arrest. - 4. The Applicant is the sole bread earner of his family with six children and two dependent relatives of advanced age whose welfare is affected by the Applicant's continued stay on remand.

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- 5. The Applicant has no criminal record and neither does he have any charges pending against him in any Court of law. - 6. The Applicant still enjoys the presumption of innocence under Article 23 (3) (a) of the Constitution. - 7. The Applicant is a resident of Kitintale Zone 7, Nakawa Division which is his permanent place of abode where he has lived for the last 20 years. - 8. The Applicant has substantial sureties within the jurisdiction of this Honourable Court.

At the hearing of the Application, the Applicant was represented by Counsel Henry Kyalimpa and Semaganda Sharif while the Respondent was represented by Mrs. Nyanzi Gladys Macrina.

Counsel for the Applicant, in his submissions, elaborated on the grounds stated in the Application and supporting affidavit. He submitted that the Applicant's health requires surgery owing to blocked arteries in the right leg which he sustained following an accident that occurred at work before his arrest. That if the surgery is not done as soon as possible, his leg might be amputated. Counsel further submitted that the Applicant had secured medical reports from Iganga Hospital and Afri -Egypt Health services in Jinja which facilities he had visited while on remand at Kirinya Prison. That according to these medical reports, the Applicant's condition requires surgery which cannot be undertaken in prison. Counsel further submitted that the Applicant's health condition falls within the category of grave illness envisaged under Section 15 of the Trial on Indictments Act which qualifies the Applicant for the grant of bail on terms deemed reasonable by this Honourable Court.

Counsel Sharif Semaganda submitted that in the alternative and without prejudice to the earlier prayers, exceptional circumstances are no longer required as a condition to grant bail. Counsel relied on the case of Ug. Vs Kanyamunyu Matthew Cr. Appeal No. 177/2017 to support his argument that Court can grant bail to an accused person charged with murder without considering exceptional circumstances. Counsel prayed that since it is uncertain as to when the Applicant will be committed to the High Court, that the Applicant has clocked the mandatory period on remand and additionally has a grave illness, the Court should be pleased to grant him bail. Counsel supplemented his argument by emphasizing the availability of five

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substantial sureties who would compel the Applicant to attend Court and that coupled with the Applicant's Constitutional right to be presumed innocence until proved guilty, Court should grant bail to the Applicant on favorable terms as it may deem fit.

Counsel also submitted that the Applicant is a sole bread earner for his family with six children, a wife and two dependent relatives of advanced age whose welfare is affected by the Applicant's continued stay on remand. That the Applicant has no criminal record and neither does he have any other charges pending before any Court save for these charges.

Counsel Sharif made clarification on the expiry of the mandatory period on remand of the Applicant as provided for under Article 23(6) (c) of the Constitution. He explained that the Applicant was remanded on 2nd June 2022 and that the mandatory remand period had expired on 2nd December 2022. Counsel relied on the case of Mumbere Bonifance Vs Uganda M. A 87/2012 where Court stated that in the circumstances where an accused person had spent 180 days on remand, Court should not deny him bail but would rather look at the conditions of bail.

The Applicant presented five sureties to wit;

1. Muwanika Muhammed, aged 46, a resident of Kitintale Zone 7, Mutungo Parish, Nakawa Division, a business man dealing in agricultural products and furniture whose furniture shop is located in Kitintale trading under the name of Kitintale Furniture Mart Group. The land on which the furniture shop is located is owned by Zaitun Bint Hawa. Mr. Muwanika Muhammed is a Councillor of Mutungo 4 area, Nakawa Division and is a family friend to the Applicant. He presented his National Identity Card and his Identity Card as a Councillor as his identification documents.

The obligations of a surety were explained to him and he confirmed his obligations as a surety.

2. Lule Asumani, aged 49, a resident of Kitintale Zone7, Mutungo Parish, Nakawa Division, a carpenter by profession and has a workshop located on his family land. The workshop is called Asuman and brothers. He is a family friend to the Applicant and a neighbour too. With leave of Court, a copy of the surety's National Identity card was availed to Court at the hearing. The obligations required of a surety were explained to him and he confirmed to Court that he understood the same.

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- 3. **Magazi Lazaalo**, aged 50, a resident of Nabitende, Buyale Zone. He is a businessman dealing in agricultural produce and has a workshop dealing in furniture located at Nabitende, Iganga district trading as Magezi Furniture. He is the former L. C III Chairman of Nambale Sub-County, Iganga District. He is a maternal uncle to the Applicant. He presented his National Identity Card and L. C letter as his identification documents. The responsibilities of a surety explained to him and he understood them. - 4. Muwanika Fazira, aged 50, a resident of Zabef Cell, Walukuba West Ward, Jinja Southern Division, Jinja City. She is a cousin to the Applicant. She presented an L. C. Letter, her National Identity Card and Staff Identity Card to Court as her identification documents. She is employed by Iganga District Local Council and works in the Administration Department. She satisfactorily explained her obligations as a surety to Court. - 5. **Mawogole Alice**, aged 28 years, a resident of Buyale Village, Nabitende Parish, Kidaago Sub-County, Iganga District and is the Parish Chief of Kasambika Parish, Iganga District. She is a niece to the Applicant. She presented her National Identity Card and Staff Identity Card as her identification documents. Her surety obligations were explained to her.

In opposition of the application, State sought to reply on the affidavit in reply filed on 11th January 2023 and withdrew all the rest. State submitted that there was no National Identity Card for the Applicant attached on the Application.

In regard to the residency of the Applicant, it was the prosecution's submission that the Applicant had failed to prove that he has a fixed place of abode. That although the Applicant had on 17th August 2022 affirmed in his affidavit in support to the Application that he is a resident of Kitintale Zone 7, on further investigation by the investigating officer, Sergeant Wilson Azaley, it was disclosed to the State that the Applicant is no longer a resident of Kitintale Zone 7. This disclosure was by a letter written by Asuman Lule, the LC1 Chairman of the area who indicated in that letter on being arrested, the Applicant's properties were ferried to another location unknown to him.

On the issue of the health condition of the Applicant, it was the State's submission that no evidence had been provided by the Applicant to show that Uganda Prisons had failed provide adequate treatment to the Applicant. Neither had it been proved that the Prisons authorities had failed to refer him to a proper medical facility. It was

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further submitted that the radiology report from Afri-Egypt Health Services stated that there the Applicant was not suffering from acute deep nervous thrombosis as was initially feared by the referring doctor and that therefore the Applicant's health condition was not grave.

It was the State's submission that investigations had disclosed that the Applicant's 5th surety, Mawogole Alice, had relocated from Nabitende Parish and therefore did not have a fixed place of abode in that area and could not be traced. The State prayed to Court to reject this surety and that on the whole, the Applicant should not be granted bail.

In rejoinder, Counsel for the Applicant abandoned the 5th surety Mawogole Alice and maintained the other four.

In regard to the Applicant's fixed place of abode, Counsel for the Applicant submitted that at the time of his arrest, the Applicant was a resident of Kitintale Zone 7 Parish. That the concerns of the prosecution are catered for by the Applicant's sureties Mr. Asuman Lule and Mr. Muhammad Muwanika who are the leaders of that area who would aid Court in tracing the Applicant if the need arose.

With regard to proof that the Applicant suffers from a grave illness, Counsel argued that although the fears of the referring doctor were that the Applicant might be suffering from acute deep venomous thrombosis, the results of the medical reports indicated that the Applicant suffers from chronic venous thrombosis insufficiency which might be life threatening.

Concerning the failure to present his National Identity Card, Applicant's Counsel submitted that the Applicant had reported the loss of his National Identity Card to the Police. Counsel furnished Court with the Police report which indicated the Applicant's National Identification Number (NIN.)

Counsel concluded his submissions by emphasizing to Court that since the Applicant had clocked the mandatory period on remand, Court should release the Applicant on lenient terms as the High court may deem fit.

### **Analysis**

Article 23 $(6)$ (a) of the Constitution provides as follows:

Where a person is arrested in respect of a criminal offence-

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(a) the person is entitled to apply to the Court to be released on bail, and the Court may grant that person bail on such conditions as Court considers reasonable.

Court's discretionary power to grant bail is enshrined under Section $14(1)$ of the Trial on Indictments Act which provides for release on bail as follows:

"The High Court may at any stage in the proceedings release the accused on bail, that is to say, 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 case, to appear before the court on such a date and at such a time as named in the bond."

The accused is entitled to apply to the Court to be released on bail, and the Court has the discretion to grant or refuse bail. See Tumwekwase Owen versus Uganda, Mbarara HCT-05-CR-MA 57 of 2019.

However, the Court's discretion is taken away by the Constitution **under Article** $23(6)(c)$ which provides that;

"Where a person is arrested in respect of a criminal offence in the case of an offence triable only by the High Court, if that person has been remanded in custody for *one hundred and eighty days* before the case is committed to the High Court, that person shall be released on bail on such conditions as the Court considers reasonable."

The import of the above clause was exhaustively discussed in **Uganda Vs Rtd. Col.** Dr. Kiiza Besigye Constitutional Ref No. 20 of 2005 and the same confirmed in **Foundation for Human Rights Initiatives Vs Attorney General Constitutional Petition No. 20 of 2006** where in it was stated that:

"Under Article 23(6) (c) of the Constitution, where the accused has been in custody for 180 days before the case is committed for trial for an offence triable by the High Court as well as a subordinate court, that person shall be released on bail on such conditions as the Court considers reasonable. Here the Court has no discretion. It has to grant bail because of the use of the term "shall" be released on bail, appearing therein. This is the opposite of the phrase "may" be released on bail as it appears in 23(6) (a). The term "shall" is imperative or mandatory. It denotes obligation."

From the foregoing, after the expiry of the 180 days on remand, the right to bail becomes automatic under Article $23(6)(c)$ . At that point, Court's discretion is limited to determining the conditions of bail.

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Counsel for the Applicant submitted that the Applicant was remanded on 20th June 2022 which fact was conceded to by the State. The 180 days lapsed on 20th December 2022 and to date, the Applicant has never been committed. This means that the accused has been on remand for over 180 days without committal. He is thus protected by the Constitution.

I have already found that the applicant has stayed on remand without committal for over 180 days, contrary to the Constitutional requirements. This supersedes the need to prove exceptional circumstances.

On the issue of the Applicant's place of abode, I concur with Counsel for the Applicant that since two of the sureties Mr. Asuman Lule and Mr. Muhammad Muwanika are the leaders of Kitintale Zone7, Mutungo Parish, Nakawa Division, they will aid Court in tracing the Applicant as and when the need arises.

I accordingly allow the Application on the following conditions.

- 1. The Applicant shall execute a cash bail deposit of $1,500,000/$ = (One Million Five Hundred Thousand Shillings only) - 2. Each of the four (4) sureties shall execute a noncash bail of 5,000,000/= (Five Million Shillings) - 3. The Applicant shall report to the local area (L. C. I) Chairman of Kitintale Zone 7, Mutungo Parish, Nakawa Division, on a weekly basis and shall appear before the Deputy Registrar of the High Court at the end of every month for bail extension with evidence of reporting to the L. C.1 Chairman of Kitintale Zone 7, Mutungo Parish Nakawa Division.

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I so order.

JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI Delivered on 5th May, 2023.