Marere v Uganda (Criminal Application 4 of 2021) [2021] UGSC 35 (12 August 2021)

Full Case Text

### THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KOLOLO

## **Criminal Application No. 04 of 2021**

# (Arising out of Criminal Appeal No. 26 of 2019)

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Mellan Marere ..................................

#### Versus

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### **Ruling of Percy Night Tuhaise, JSC**

This application was brought under Rules 6 (2) (a), 42 & 43 of the Judicature (Supreme Court Rules) Directions SI 13-11, for orders that the Applicant be granted bail pending the hearing and determination of her Criminal Appeal No. 26 of 2019 pending before this Court.

The grounds of the application are contained in the Notice of Motion (NOM), the affidavit in support of the NOM sworn by the Applicant, and the supplementary affidavit in support of the NOM sworn by **Ms. Awelo Sarah Onapa** of Uganda Christian Lawyers' Fraternity, which are, briefly, that:-

- a) The Applicant is a first offender. - b) The appeal that has been filed by the Applicant is not frivolous and has a high probability of success.

c) There is a high possibility of substantial delay in the hearing and determination of the appeal in this matter.

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- d) The Applicant's state of health requires specialized medical attention and balanced nutritional diet which she is unable to access while serving her custodial sentence in prison. - e) The Applicant has complied with the bail terms and conditions granted by the High Court. - f) It is just and fair that the Applicant be granted bail pending her appeal.

The application was opposed by the Respondent who filed an affidavit in reply sworn by Ms. Faith Turumanya, Assistant Director of Public Prosecutions.

#### Representation

At the hearing of this application, the Applicant was represented by Ms. Awelo Sarah of Uganda Christian Lawyers Fraternity while the respondent was represented by Ms. Vicky Nabisenke, Assistant Director of Public Prosecutions. The applicant, who was at Luzira Women's Prison, attended Court via video link. $\sqrt{R}$

#### **Background**

The brief background to the application is that Mellan Merere (the Applicant) and 6 others were charged with the offence of murder contrary to section 188 and 189 of the Penal Code Act, Cap 120. The particulars of the offence are that on the 25th day of November 2015 at Burora cell, Katungu Parish, Rugyeyo Sub County in Kanungu District, the accused and others, with malice aforethought, caused the death of Rukandonda George (deceased). They were tried at the High Court in Kabale in Criminal Case No. 52 of 2015, before Moses Kazibwe Kawumi J, who found all of them guilty of murder. On 7th June 2017, the learned trial Judge sentenced the Applicant (A1) to a term of imprisonment for 29 years and 10 months. The Applicant appealed against the conviction and sentence to the Court of Appeal *vide Criminal Appeal No.* 220 of 2017. The appeal against sentence was allowed by the Court of Appeal, which reduced the sentence to 18 years' imprisonment. On 17th July 2019, the Applicant appealed against the Court of Appeal decision to this Court vide Supreme Court Criminal Appeal No. 26 of 2019.

The applicant then lodged an application in this Court for a certificate of urgency for this application to be heard during the COVID 19 lockdown. The same was granted on 23rd July 2021.

### **Applicant's Submissions**

Counsel for the Applicant cited the case of **Arvind Patel V Uganda**, **Supreme Court Criminal Application No. 1 of 2003** where this Court laid out considerations to an application for bail pending appeal. In that case court emphasized that it is not necessary that all the conditions stated should be present in every case; that a combination of two or more criteria may be sufficient; and that each case must be decided on its facts and circumstances. an

Counsel highlighted a number of factors which she contended strongly weighed in favour of the Applicant for the grant of bail pending appeal.

First, Counsel submitted that the Applicant is of advanced age of 77 years. She cited the Court of Appeal case of Mubbale Peter V Uganda, Miscellaneous Application No. 82 of 2017, where the court considered an applicant aged 60 years to be of advanced age.

Secondly, Counsel submitted that the Applicant is a mother of 8 and a grandmother who has been looking after orphans; a law abiding citizen who also contributes positively to her family and community; a former Local Council (LC) 5 Woman Councilor for Rugyeyo Sub County, Kanungu District; a recipient of the Golden Jubilee medal; and a District Counselor for people living with HIV/AIDS.

Thirdly, Counsel submitted that the Applicant is a first time offender; and that she had previously been released on bail by the High court, where she fulfilled all the conditions and attended court religiously until she was convicted.

Fourthly, regarding the health status of the Applicant, Counsel referred this Court to a medical report dated 19th May 2021 by Dr. Kakoraki Alex, the Acting Medical Superintendent of Murchison Bay Hospital. It described the health status of the Applicant, in part that, "the irritating cough is usually precipitated by exposure to cold weather, smoke, sharp smell of chemicals, perfumes, stuff environment, excessive heat associated with difficult breathing. Palpitations are experienced on exertion on after walking a short distance especially uphill. *Epigastric pain is worsened by delays in having meals."* $\sqrt{AT}$

Counsel submitted that the prison environment is stuffy with sharp smell of chemicals as other suspects and convicts treat their hair, smoke from the kitchen, or cook for themselves; and that meals in prison are delayed, which puts the Applicant's health in danger. Counsel further submitted that the Applicant suffers from chronic allergic bronchitis with asthmatic components, HIV/ AIDS, Peripheral Neuropathy and old age; and that according to

Dr. Kakoraki, frequent asthmatic attacks can lead to fatal consequences in prison conditions, leading to the conclusion that the Applicant is unable to withstand prison conditions.

Fifthly, Counsel submitted that administrative and structural constraints in the Supreme Court like the policy of first come first serve, issues of funding, and dynamics like the prevailing COVID 19 pandemic pose a risk of substantial delay in hearing the Applicant's appeal.

Sixth, Counsel submitted that the appeal is not frivolous and has a high possibility of success; that in this particular case, the record of proceedings has been forwarded to this Court; that the memorandum of appeal shows that the intended appeal raises a number of issues this Court will have to address and pronounce itself on, and, if properly argued and heard by Court, there is a possibility of success.

Counsel introduced two people to this Court to stand surety for the Applicant in the event the application is granted. She furnished copies of their respective National Identity Cards, office Identity Cards, LC introductory letters and phone contacts, all of which are on Court record. The details concerning the two sureties were:-

- 1. Aturinda Rosemary, a Nursing Officer at Kanungu District Local Government, a daughter of the Applicant. - 2. Akankwasa Judith, a Senior Medical Clinical Officer at Kanungu District Local Government, a daughter of the Applicant.

Counsel further submitted that the Applicant has a fixed place of abode as evidenced the letter from Ariko Frank, the LC 1 Chairperson Buroro, showing that the Applicant was arrested in Buroro Cell Southern Ward Nyakabungu Town Council, Kanungu District.

### **Respondent's submissions**

In reply, the Respondent's Counsel submitted that the Applicant's conviction of murder by High Court, and the subsequent upholding of the conviction by the Court of Appeal which reduced her sentence to 18 years' imprisonment, is evidence of the strength of the prosecution evidence. According to Counsel, the concurrent findings of the High Court and Court of Appeal shows that the Applicant's appeal has little or no chance of success.

Counsel also submitted that the serious nature of offence should be a reason not to grant bail to the Applicant; that the murder involved acts of personal violence; and that the Applicant's personal role of mobilizing the mob to burn the deceased to death $\sqrt{8}$ diminishes her chances of being granted bail.

Regarding the submission that the Applicant previously complied with bail terms, Counsel for the Respondent submitted that while at the High Court there was a presumption of innocence, the instant situation is different since the Applicant is a convict who has only served 4 years of the term of imprisonment. She argued that the remaining long jail term increases the Applicant's likelihood of absconding.

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Counsel also referred this Court to the record at page 24, where the learned trial Judge stated that, "... I have now considered the plea from the widow of the deceased who told Court that A1 (Mellan) who has been on bail had threatened to burn her too." Counsel contended that this was cruelty on the part of the Applicant who would be likely to offend while on bail.

On the issue of possible delay of resolving the appeal, Counsel submitted that the argument by the Applicant's Counsel regarding the likelihood of delay in hearing appeal is speculative. She argued that though the lockdown justified the grant of the certificate of urgency, the conditions have since changed because the Chief Justice has directed that court hearings should commence.

Regarding the submissions on the Applicant's health condition, Counsel submitted that the medical report on the Applicant's health condition falls short of indicating or proving that the medical facility is incapable of providing adequate medical treatment for the Applicant's ailments while in prison.

Regarding the persons presented to this Court to stand as sureties for the Applicant in case bail is granted, Counsel submitted that there are inconsistencies in the name of surety No. 1, in that her names appear as Aturinda on her National ID and work ID, yet on her introductory LC letter it appears as Naturinda. **NAV**

Counsel also submitted that both sureties were not substantial given that they are daughters to the Applicant; that given the long jail sentence and grave nature of offence, the Applicant should have brought persons able to prevail upon her. Counsel argued

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that the balance of power as a parent over her children is in her favour.

Counsel prayed that the application be dismissed and the appeal be fixed for hearing.

# **Applicant's Submissions in Rejoinder**

Counsel for the Applicant submitted in rejoinder that the Applicant is well aware that if she absconds, her children will be arrested.

Regarding the medical report, she submitted that according to Dr. Kakoraki, frequent asthma attacks can be fatal.

Regarding the issue of delay in hearing the appeal, she submitted that the Applicant's appeal has never been cause listed to date, implying it will delay because it is on first come first serve basis.

Regarding the learned trial Judge's observations about the Applicant's conduct while on bail in the High Court, she submitted that during the four years the Applicant has been in prison, she has undergone counselling and cannot therefore repeat what the learned trial Judge observed. VRA

Regarding the disparity in the names Naturinda and Aturinda in reference to Surety No. 1, Counsel submitted that the telephone contacts and photographs on the LC letter introducing Surety No. 1, as well as the photographs on ID documents indicate that she is one and the same person.

Counsel concluded by praying that the Applicant be granted bail with stringent conditions.

#### **Consideration of the application**

Rule 6 (2) (a) of the rules of the Judicature (Supreme Court Rules) Directions, hereafter referred to as the "Rules of this Court", which applies to applications for bail pending hearing and determination of an appeal, states:-

"(2) Subject to sub rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but *the court may-*

$(a)$ *in any criminal proceedings, where a notice of appeal has been* given in accordance with rules 56 and 57 of these Rules, order that the appellant be released on bail or that the execution of any warrant of distress be suspended pending the *determination of the appeal;"*

The Applicant is an appellant in *Criminal Appeal No.* 26 of 2019 pending before this Court. She thus complied with the above rule, as shown by a copy of the Notice of Appeal annexed as 'C" to her affidavit in support of the application. . RAN

The grant of bail, whether pending trial or pending appeal, is at the discretion of court, which discretion must be exercised judiciously, with each case being determined on its own merits. See John Muhanguzi Kashaka V Uganda, Supreme Court Miscellaneous Application No. 18 of 2019; Arvind Patel V Uganda (supra); and Ochepa Godfrey V Uganda, Supreme Court Miscellaneous Application No. 07 of 2020.

The consideration for release of an Applicant on bail pending appeal hinges on whether there are exceptional and unusual circumstances warranting such release. This is because the Applicant is no longer wholly shielded by the presumption of innocence espoused in Article 28 (3) of the Constitution of Uganda. Secondly, the position is that whenever an application for bail pending appeal is considered, the presumption is that when the Applicant was convicted, he or she was properly convicted.

In the instant application, the presumption of innocence is rebutted by the fact that the High Court and the Court of Appeal have already convicted the Applicant. This infers that there are factual findings by both courts, based on the adduced evidence, that she committed the offence she was charged with, thus placing her outside the ambit of persons envisaged in Article 28 (3) (a) which refers to persons in respect of whom a court of law is yet to make a verdict on allegations against them.

Thus, a person applying for bail pending appeal must be subjected to a more stringent test than one who is not yet convicted.

However, the fact that the law, as implicit in Article 132 (2) of the Constitution, Section 5 of the Judicature Act Cap 13, and the Rule 6 (2) of the Rules of this Court, makes provisions for appeal, and for bail pending appeal, infers that the law appreciates the possibility of a conviction being erroneous or the punishment VAN being excessive.

In Arvind Patel V Uganda (supra), this Court laid down guidelines to be considered to justify the grant of bail pending appeal, that is:

- *the character of the applicant;* $i)$ - *whether he/she is a first offender or not;* ii)

- whether the offence of which the applicant was convicted involved iii) personal violence; - the appeal is not frivolous and has a reasonable possibility of $iv)$ success; - the possibility of substantial delay in the determination of the $v)$ appeal; - whether the applicant has complied with bail conditions granted $v_i$ after the applicant's conviction and during the pendency of the appeal (if any).

It was held in the same case of Arvind Patel and, later, in Ocepa **Geoffrey V Uganda (supra)** that not all conditions for bail have to exist, that two or three can suffice since each case is decided on its own facts and circumstances.

The Applicant contends that the appeal is not frivolous and has a reasonable possibility of success. This was mainly brought out in her affidavit and that of her Counsel, in support of the Notice of Motion, as well as in her submissions. The Respondent's Counsel however maintains that the fact that the Applicant's conviction of murder by High Court, and the upholding of the conviction by Court of Appeal, shows that the Applicant's appeal has little or no chance of success. RA

The likelihood of success of an appeal, would on the face of it, presuppose that court appreciates the merits of the appeal on which the application for bail hinges. However, as a matter of fact, court does not at this particular point in time delve deeply into the merits of the appeal.

It was held in the case of **Arvind Patel (supra)** that:-

"the only means by which court can assess the possibility of success of the appeal is by perusing the relevant record of proceedings, the judgment of the court from which the appeal has emanated and the *Memorandum of Appeal in question."*

In Kyeyune Mitala Julius V Uganda, Supreme Court Criminal Application No. 09 of 2016, it was held that it is impossible to gauge the success of the appeal in the absence of the record of proceedings.

I have perused the record of this application. It contains the Notice of Appeal, the Memorandum of Appeal, the affidavits and the annexures, the Applicant's written submissions and copies of the authorities sought to be relied on by the Applicant. Annexure "d" to the Applicant's supporting affidavit which is the judgment of the Court of Appeal contains only pages 1, 36 and 37 of that judgment, which cover mainly the aspect of the sentence. Annexure "e" to the same affidavit which is the judgment of the High Court contains only pages 1, 7, 8 and 9 of that judgment which also cover mainly the sentencing of the Applicant. 、瓜

Thus, in my considered opinion, and based on the foregoing authorities on this matter, lack of the relevant record of proceedings and the scanty information on the judgments of the lower courts from which the appeal to this Court arises would not place me in a position to access the possibility or otherwise of the success of the appeal, or to determine whether the appeal is frivolous or not.

Regarding the Applicant's character, her Counsel presented her to this Court, based on her affidavit evidence, as a first time offender,

a mother with 8 children and 11 grandchildren and a home to fend for as well as multiple orphans; also that she has a place of abode as indicated in her LC introductory letter. The Respondent's Counsel did not challenge the said attributes, but she maintains that the learned trial Judge observed that the Applicant threatened to burn the deceased's widow while she was on bail during the trial, that this was cruel on the Applicant's part.

The position of this Court, as held in **Kashaka V Uganda** (supra), is that good character alone can never be enough because there is nothing exceptional or unusual in having good character. Thus factors which go to the applicant's credit, like being a first time offender, or of good character, or a breadwinner of his family, and although he/she may have offered sureties of sound character, would all such recede to the background when weighed with the seriousness of the offence and whether or not there is likelihood that the appeal would succeed.

Be that as it may, one of the grounds relied on by the Applicant is that she has complied with bail conditions granted to her by the High Court until the time she was sentenced. Counsel for the Respondent did not challenge it, but she argued that the bail was prior to her conviction and now the Applicant is a convict.

The Respondent's Counsel's contentions, based on the learned trial Judge's observations on record that the Applicant threatened to burn the deceased's widow, were not rebutted by the Applicant. The Applicant's Counsel however submitted for the Applicant that the Applicant has been undergoing counselling during the four years she has been in prison. This however is not supported by evidence, and learned Counsel's submissions tantamount to giving evidence from the Bar, which this Court cannot allow. This would put the Applicant's character or conduct in question.

Counsel for the Applicant did not submit on the nature of the offence the Applicant was convicted of, but the record shows that she was convicted of murder. Without prejudice to the pending appeal, it is deducible from the available court record (pages 36 and 37 of the judgment of the Court of Appeal) that the murder was through mob justice, but "instigated by the Applicant who spread wrong information that the deceased had killed Charles." Thus, as the record stands currently, the Applicant played a personal role of mobilizing the mob to burn the deceased to death.

It has to be noted that, even before conviction, courts in Uganda have to exercise a high degree of caution while considering grant of bail to a person awaiting trial on a charge of murder. Although Section 14 of the Trial on Indictment Act, Cap 23, provides that the High Court may at any stage in its proceedings release an accused person on bail, Section 15 (1) & (2) (a) of the same Act sets a higher standard for bail pending trial on a charge triable only by the High Court, which includes the offence of murder. In such a situation, the Applicant must prove to the satisfaction of the court that exceptional circumstances exist to justify his or her release on bail.

It follows therefore that, where the application is for bail pending appeal, where the Applicant is already a convict, extra caution is RA required.

Regarding the Applicant's medical or health condition, the medical report attached to the Applicant's affidavit reveals that she suffers

from Chronic Allergic Bronchitis with asthmatic components, Peripheral Neuropathy and old age (elderly). Dr. Kakoraki Alex who examined the Applicant noted that "Frequent asthmatic attacks can lead to fatal consequences in Prison conditions." The nature of ailments afflicting the Applicant were not challenged by the Respondent.

The Applicant has, however, not availed this Court any evidence showing that Murchison Bay Hospital, the medical facility in charge of Luzira Women's Prison, lacks capacity to provide adequate medical treatment for the Applicant's ailments while in prison. Section 15 (3) of the Trial on Indictments Act requires that, to justify grant of bail under exceptional circumstances like grave illness, there should be, among other things, be a certification 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.

Regarding the issue of delay in resolving the appeal, it is true that this Court issued a certificate of urgency to the applicant to have this application heard. However, as correctly argued by Counsel for the Respondent, that was during the period of lockdown due to COVID 19. The said lockdown has since been lifted, or at least relaxed, and courts have resumed hearing of cases under strict observance of Standard Operation Procedures (SOPs). NAN

In the given circumstances, the "delay" in disposing of the appeal should be assessed in light of whether there is a real risk that the sentence, or a considerable portion of it, will have been served before the appeal is heard.

In paragraph 8 of her affidavit, the Applicant states, "that if I am not granted bail and my Appeal succeeds, the time I will have served will not only render this Appeal academic but also occasion a travesty of justice.

The record shows that the Applicant is serving the 18 years imprisonment sentence imposed against her by the Court of Appeal. It runs from the date of conviction by the High Court on 7th June 2017, meaning she has served about four years of the term of imprisonment. The sentence will certainly not have expired by the time the appeal is heard. As stated in Kashaka V Uganda (supra), delay can only alone be an unusual or exceptional circumstance if it is unusual itself. There is no basis in the circumstances of this application therefore, for speculating, as the Applicant and her Counsel did, that the Applicant's appeal will be subjected to an unusual delay.

It was submitted for the Applicant that the record of proceedings has been forwarded to this Court. The memorandum of appeal states that the intended appeal raises a number of issues this Court will have to address and pronounce itself on, and that if properly argued and heard by Court, there is a possibility of success. This shows the Applicant's preparedness to go for trial. **KRA**

In any case, the Applicant's stated advanced age of 77 years would, for purposes of accessing justice to the elderly people, call for this Court to fast track the appeal with a view to disposing of it quickly regardless of the first come first serve practice of courts. In my considered opinion, a speedy disposal of the appeal would be a more relevant and meaningful form of accessing the elderly Applicant to justice than grant of bail.

Thus, for reasons given above, I would dismiss this application. However, on account of the Applicant's advanced age, in the interests of justice, the Registrar of this Court is directed to fast track and cause list the Applicant's appeal for hearing at the next criminal session this year.

Dated at Kampala this .................................... $\ldots 2021.$

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**Percy Night Tuhaise Justice of the Supreme Court**