Mutembuli & 2 Others v Uganda (Miscellaneous Application 41 of 2024; Miscellaneous Application 42 of 2024; Miscellaneous Application 47 of 2024) [2024] UGHCACD 6 (5 August 2024)
Full Case Text
## THE REPUBLIC OF UGANDA
# IN THE HIGH COURT OF UGANDA
### ANTI CORRUPTION DIVISION
## HOLDEN AT NAKASERO
# MISC APPLICATIONS 41, 42 AND 47 OF 2024
(Arising from criminal case no. 4 of 2024)
1. Hon. Yusuf Mutembuli
2. Hon. Paul Kamba
3. Hon. Cissy Namujju Dionizia ...................... APPLICANTS
#### **VRS** 10
UGANDA ...................................
### BEFORE GIDUDU, J
### **RULING**
### Introduction
The three applicants are members of Parliament of Uganda. Hon. Yusuf Mutembuli, herein referred to as A1, is a member of Parliament for Bunyole East Constituency in Butaleja district. Hon. Paul Akamba, herein referred to as A2 is a member of Parliament for Busiki Constituency in Namutumba district. Hon. Cissy Namujju Dionizia, herein referred to as A3 is a woman member of Parliament for Lwengo district.
A1 was the vice chairperson of the Legal and parliamentary Committee. A2 was a member of the Budget Committee. A3 was a member of the Budget committee.
They are jointly charged with Corruption C/S 2(e) and 26 of the Anti-Corruption Act, 2009. They are accused of soliciting from the Chairperson of the Uganda Human Rights Commission (UHRC) an undue advantage of 20% of the anticipated enhanced budget of the
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UHRC in FY 2024/25 by asserting that they were to exert improper influence over the budget Committee and Ministry of Finance officials to approve and release funds.
They each pleaded not guilty. The trial started with the testimony of the first witness.
They each applied for bail by motions supported by affidavits which $?'.$ I consolidated for convenience and brevity. The applications are based on similar grounds such as the right to apply for bail, the presumption of innocence, the fact of having a fixed place of abode, being representatives of their constituents and possession of $-10$ substantial sureties. They all undertake to turn up for their trial.
## Representation
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A1 was represented by M/S Caleb Alaka, Kidiya Herbert and Wakibi Nasuru. A2 was represented by M/S Rugambwa Richard, Ochieng Wakabala Susan and Atukwase Christine. A3 was Evans. represented by M/S Mwesigwa Rukutana, Kandeebe Ntabirweki, Rubihayo Brian and Edgar Ayebazibwe.
The State was represented by M/S Muwaganya Jonathan (CSA), Tusingwire Viola(SSA), Joy Khayiyi (SA) and Topista Nam (SA)
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For A1, it was stated in his affidavit that he has fixed places of abode in Naweyo, Kachonga in Butaleja district and Bukasa LC1 in Bweyogerere, Wakiso district.
He is the bread winner of his family whose support is vital when he is on bail. That he has substantial sureties which he presented as follows:
- 1. Hon Mutiwa Geoffrey Eric, aged 42, Member of Parliament for Bunyole West, workmate and friend of A1, a resident of Namataba LC1, Bweyogerere, Wakiso district. - 2. Hon Nebanda Florence Andiru, 39 years, woman member of Parliament for Butaleja district and resident of Naalya, kira
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Municipality, Wakiso district. She is a workmate and friend of $A1.$
- 3. Hon Baka Mugabi, 49 years, member of Parliament for Bukooli County North in Bugiri district. He is a resident of Namayemba $T/C$ in Bugiri. He is a friend and workmate of A1. - 4. Namukose Minsa, 40 years, Principal community development officer Mukono. She is a sister of A1 and resident Kachonga in Bunyole East. - Their identity documents were presented to court. I was asked to find them substantial with capacity to meet the terms of the bond and $\sim$ also had the necessary influence to cause A1 to attend court whenever he is required.
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For A2, his place of abode is said to be in Kyanja, Nakawa Division. He states that he first obtained bail which was later cancelled by the Chief magistrate. He presented the following sureties
- 1. Hon Naigaga Mariam, 45 years, woman member of Parliament for Namutumba district. She is a resident of Bunga kawuku Ggaba ward in Makindye Division. She is a colleague in the House. - 2. Hon kibalya Henry Maurice, 47 years, member of Parliament for Bugabula South. He is a colleague in the House.
For A3, it was submitted that she had a fixed place of abode at Ziranumbu cell, Busabala, Makindye-Ssabagabo, Wakiso district. She presented the following sureties.
- 1. Hon Kintu Alex Brandon, 41 years, member of Parliament for Kagoma County, Jinja. He is resident in Lweza cell, Ndejje Division Makindye Ssabagabo, Wakiso district. He is a friend and colleague in the House. - 2. Hon Kamugo Pamela Nasiyo, aged 41, resident of Kito, Kirinya Bweyogerere, Wakiso district. She is the woman member of Parliament, Budaka district. She is a colleague in the House. - 3. Hon Semwanga Gyaviira, 38 years, resident of Munyonyo Salama, Makindye Division. He is member of Parliament for Buvamba County Rakai. $\ll_{\mathcal{H}\mathcal{W}\mathcal{W}}$
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4. Hon Ssentayi Muhamad, 38 years, member of Parliament for Bukoto West Lwengo district. He is a friend and colleague in the House.
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M/S Alaka for A1, Ochieng for A2 and Rubihayo for A3 submitted that the applicants have a right to apply for bail and are presumed innocent until proved otherwise. Further, that the offences are bailable and asked court to find the sureties, who are fellow members of Parliament, to be substantial and with sufficient influence to compel the applicants to attend court.
#### Respondent's Reply. 10
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Mr. Muwaganya, CSA, opposed bail for the three applicants contending they have not justified their release on bail. He argued that the trial had started in earnest and it should proceed since there is no possibility of delay.
He relied on the affidavit of D/SP Nakaboke Jacqueline to contend that the applicants had not shown that they have fixed places of abode because they did not indicate ownership of title or tenancy.
Further, that no exceptional circumstances had been proved in terms of section 16 of the TIA, Cap 25. He dismissed the medical condition documents of A1 and A3 as falling short of the requirement to have them obtained from a Prison Medical Officer.
Regarding sureties, he submitted that though they are members of Parliament, they had not produced their bank statements to demonstrate capacity to meet the terms of the bond. He argued that being an MP does not mean capacity to pay the bond.
He asked court to consider guideline 13 in Legal Notice 8 of 2022 which lists considerations to be taken into account before granting
He concluded that the greater interests of Justice favour the $\frac{10}{30}$ continuation of the trial than the grant of bail
Rejoinder by applicants.
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Mr. Alaka contested the submissions of the state by stating that the Right to apply for bail and the discretion of the court to consider the same are not fettered by any guidelines in place.
He submitted that section 16 of the TIA is directory and not mandatory. He argued that the presumption of innocence is a constitutional matter. That MPs have fixed places of abode and dismissed the insinuation that they have no places of residence. He stated that the accused had been on remand for 52 days and that the fact that the trial has started does not deprive them of the right to apply for bail. He pointed out that the accused are members of Parliament who are required to attend Parliament until the court finds them guilty.
M/S. Ochieng and Rubihayo concurred.
## Consideration by court.
I have perused the applications and their attachments and addressed my mind to the objections raised by the respondents.
Bail is a temporary release of a prisoner from detention to enable him/her attend trial from outside prison. It is a discretionary power of court which it exercises to balance the promotion of the accused's rights to the presumption of innocence and the need to protect society by keeping persons that transgress the law from circulation until their trial is concluded.
Before granting or refusing bail, courts consider the gravity of the offence and the likelihood of the prisoner to flee rather than turn up for the trial. Courts also consider whether the accused has a fixed place of abode where he/she lives.
The accused's antecedents such as the commission of similar offences or the likelihood to commit another crime also have a bearing on the matter of bail. The presence or absence of substantial sureties who have influence upon the accused to attend court and have capacity to meet the terms of their bond is an important consideration. < $\Delta$
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The likelihood of the accused to interfere with witnesses or exhibits or investigations generally are matters that weigh in on the decision to grant or to refuse bail.
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Bail should not be denied just because the State wishes to keep a prisoner in jail when it has not proved the case against him/her. The fate of a prisoner should be determined expeditiously through trial rather than by indefinite detention and bail is one of the matters to be considered even when the trial is on provided factors for the release on bail exist.
- The issues for resolution are: -10 - 1. Whether the applicants need to furnish exceptional circumstances - 2. Whether or not the sureties are substantial. - 3. Whether the applicants merit to be released on bail or not
## Issue One.
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The issue of exceptional circumstances is contained in **section 16 of** the TIA. It reads
# 16. Refusal to grant bail.
(1) Notwithstanding section 15, 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.
(3) 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:
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(b) a certificate of no objection signed by the Director of Public Prosecutions; or
(c) the infancy or advanced age of the accused.
This provision mandates courts to require an applicant to furnish exceptional circumstances if it is inclined to refuse the grant of bail. There should be evidence adduced to move court to refuse bail unless exceptional circumstances are proved. Often times courts are asked to apply the provision when no compelling evidence has been availed for such a decision to be made.
To put the matter into context, a court would consider to invoke the provisions of section 16 of the TIA if for example, it was shown that the crime committed by the applicant involved the use of violence, causing death or destruction of property or endangered lives of children or vulnerable persons. Such acts that create fear in society would compel the court to frown upon a bail application unless exceptional circumstances are furnished as defined in **section 16(3)** $(a)(b)(c)$ of the TIA. The purpose would be to protect society from such offenders.
In economic crimes such as the current case, if colossal sums of money are stolen or lost or received and the state is making efforts to trace, identify and seize the same or the proceeds in form of laundered assets or property, it would compel a court to keep the accused on remand to reduce the risk of disposing of the proceed of crime. This would ensure that the offender does not destroy evidence or frustrate asset recovery.
In short, court does not automatically invoke the requirement for exceptional circumstances just because the crime is listed in sub section 2 of section 16 of the TIA. There must be a basis for its application so as to refuse bail unless exceptional circumstances are furnished. If Parliament wanted to make it an automatic requirement, it would have stated so in mandatory terms at the risk of contravening Articles 23(6)(a) and 28(3)(a) of the Constitution which guarantee Rights to apply for bail and the presumption of innocence, respectively.
The applicants are accused of soliciting a 20% cut of an anticipated increase in the budget of UHRC promising to exert improper influence on the Budget committee and Ministry of finance officials $\overline{\mathcal{A}}$
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to approve the money. UHRC did not concede to the scheme. The budget of UHRC was not increased. The 20% was, therefore, not paid. The scheme failed. There is no property to recover since none was stolen. Issue one is resolved in the negative.
Even when I have decided that section 16 of the TIA may not be applicable, this is not to say that allegations of plotting to steal money from the National Budget is not a serious crime. Evidence yet to be verified from PW1 is that she was told it was standard practice to get a kick back of 5% from MDAs that want their budgets enhanced.
In other words, UHRC was not the first or even the last to be recruited into the scheme of stealing money from the population through pilferage of institutional budgets. The court takes a serious view of the allegations and treats this case as grave.
### Issue Two.
Whilst the applicants state that their sureties who are essentially members of Parliament of Uganda are substantial, the respondent submitted that they are not because they have not demonstrated that they have homes or money in the bank to meet the terms of their bond and that no presumption should be made about that
In response Mr. Alaka asked court to believe that members of Parliament do not lack accommodation or homes or means of income.
Without much Ado, court takes Judicial Notice of the fact that members of Parliament are the highest paid public officials in Uganda beating by far any professional groups or technocrats in any MDA. That makes them, to be highly paid persons in our economy. They are the only institution which can increase their pay to match an increased cost of living in the country! That puts them in a privileged position financially.
It is also a requirement under Electoral Laws to have a residence in the constituency before standing as an MP. On the basis of the LC
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letters attached to the applications I find that each of the MPs has a home or residence.
Do they have the capacity to meet the terms of the bond? I believe so considering that MPs earn very high salaries and allowances. Since they are paid public officials, their salaries can be attached at source to recover the bond. I answer issue two in the positive.
### Issue Three.
I was asked to keep the applicants on remand and focus on expediting the trial. I have not found that justification in the law. On the contrary Section 15 of the TIA Cap 25 provides that the High Court may at any stage in the proceedings release the accused on bail. It means that during the trial as it is in this case, the court is mandated to entertain an application for bail. The Court cannot dismiss an application for bail simply because the trial has started. Judicial reasons must be advanced to grant or deny bail.
The state submitted that the public good would require that the trial proceeds whilst the accused are on remand. I am aware that currently, the country is in combative mood against corruption. There is awareness among the population about institutions that are suffering under the weight of grand corruption. Going by press and social media reports, the public is now fed up with corruption in public offices.
I have given scenarios where bail can be refused in absence of exceptional circumstances. That is where violence is involved or colossal sums of money or even trans-border crimes such as terrorism, arms trafficking, human trafficking and trans-border money laundering are involved. The need to keep such offenders out of society is compelling.
But these are members of Parliament who have already been on remand for about 55 days to-date. They are alleged to have plotted 30 to execute a scheme which backfired. They did not succeed. Their trial has started. They denied the charges. They have credible, traceable and known sureties who are public figures.
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Whilst this court treats any allegation of corruption as a serious matter, but before such allegations are proved, I would temporarily, consider granting them bail on conditions that reflect the gravity of the case and require the urgent disposal of the matter by setting timelines to fast track the trial. This would ensure that bail, which is a temporary release from remand, is not abused to frustrate the progress of the trial. Bail would be reviewed if it is used to frustrate the trial. The case will move systematically to completion within a
Consequently, I grant bail on the following conditions. 10
- 1. Each applicant with execute a **cash bail of 50,000,000=** 2. Each applicant shall deposit his/her passport in court - 3. Each surety will execute a bond of 100,000,000= NOT CASH 4. Each applicant shall commit to be available and their counsel to proceed with the trial as required by Rules 5 and 12(4) of Legal Notice 11 of 2021.
**5.** If they fail, then they are remanded to $8<sup>th</sup>$ August, 2024 for further hearing,
Gidudu Lawrence
## **JUDGE**
5<sup>th</sup> August 4, 2024
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