Namubiru v Uganda (Miscellaneous Application 99 of 2023) [2024] UGHCCRD 30 (30 March 2024)

### THE REPUBLIC OF UGANDA

### IN THE HIGHCOURT OF UGANDA AT KAMPALA

### (CRIMINAL DIVISION)

#### CRIMINAL MISCELLANEOUS APPLICATION No. 099 OF 2023

(Arising from Criminal Session Case No. 0118 of 2022)

**NAMIRIMU RUTH**

**APPLICANT** . . . . . . . . . . . . . . . . . . .

**Versus**

...................

**UGANDA**

RESPONDENT

# **BEFORE: THE HON MR. JUSTICE MICHAEL ELUBU RULING**

This Application was brought under Articles 23 (6) (a), 28 (1), (3) (a) and 44 (c) of the Constitution of the Republic of Uganda; Sections 14 (1) and 15 of the Trial on Indictment Act; and Rule 2 of the Judicature (Criminal Procedure) (Applications) Rules.

The Applicant, **Namirimu Ruth**, seeks Orders that she be released on bail pending the hearing of Criminal Case No. 253 of 2021.

The Application is premised on the grounds set out in the Notice of Motion and further particularized in the supporting affidavit deposed by the Applicant.

It is stated that the Applicant is alleged to have committed the offence of Murder contrary to Section 188 and 189 of the Penal Code Act. That on the 8<sup>th</sup> October 2021, she was arrested and charged with Murder.

She was arraigned before the Chief Magistrate Court at Kira, Wakiso District and remanded. On the 27<sup>th</sup> January 2022, she was committed to the High Court for trial.

That the Applicant's continued incarceration has deprived her of the constitutional right to a fair, speedy and public hearing as required by Article 28 (1) of the **Constitution of the Republic of Uganda.** That the Applicant is advised by her fellow inmates and the Pro-bono Legal office at Luzira Women Prison which advise she believes to be correct that she has a right to apply for bail pending trial.

That the Applicant has spent one year and six months in detention at the Luzira Women prison without trial and no reason has been advanced for such a delay hence the instant application. That this Honourable Court that can competently consider her application for bail pending trial.

That in view of the current congested Court Schedules and Case backlog, the commencement of the Applicant's trial is uncertain and likely to take long. The Applicant believes that her trial will further be delayed by the fact that there are other inmates who were indicted and committed for trial before the Applicant. That the Applicant is advised that Court's schedule for hearing cases is on a first-in-first-out basis. That in view of the Applicant's presumption of innocence, it is fair and just that she is released on bail pending her trial as it is unjust to keep her in continued detention before proving any wrong doing on her part.

That the Applicant has a fixed place of abode at Mutungo Parish, Nakawa Division, Kampala District within the jurisdiction of this Honourable Court. That she has two substantial sureties who undertake to ensure the applicant reports to Court whenever

required. That these Sureties have fixed places of abode within the jurisdiction of this Honourable Court. That the Applicant undertakes not to interfere with any prosecution evidence and witnesses regarding the pending charges against her. That the Applicant will suffer irreparable harm if the Application is not granted.

The State (the respondent) opposes this Application. In an affidavit in reply deposed by Adong Harriet, a Senior State Attorney in the Office of the Director of Public Prosecutions.

It is stated that the Applicant is charged with a serious offence, Murder contrary to Sections 188 and 189 of the Penal Code Act which carries a maximum sentence of death upon conviction.

That the Applicant has been committed for trial but failed to prove that her case will delay in view of the daily hearing Sessions. That the Applicant has not proved that she has a fixed place of abode. That the sureties presented are not substantial as they failed to prove their fixed places of abode. That the Applicant will abscond. That the Applicant has failed to prove the existence of exceptional circumstances warranting her release on bail. That it is therefore fair and in the interest of justice that the Application is denied.

### **Submissions**

The Parties filed written submissions, which are on Court record. Although they are not reproduced here, the submissions were studied carefully and utilized in the determination of this Application.

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### Determination.

Bail is a recognizance between the accused and court; a conditional release on the understanding that the accused person will be in Court whenever required. It allows the accused to avoid pre-trial detention and enables him or her to attend court from home.

The right to apply for bail stems from the presumption of innocence that is enshrined in Article 28 (3) (a) of the Constitution of the Republic of Uganda, 1995.

The Applicant has a right to apply for bail. The decision whether to grant bail is an exercise of judicial discretion.

According to the 8<sup>th</sup> Edition of the **Black's Law Dictionary**, judicial discretion is the exercise of judgment based on what is fair under the circumstances and guided by the rules and principles of law; a court's power to act or not act when a litigant is entitled to demand the act as a matter of right.

In exercising that judicial discretion, the Court considers all that is before it and reaches its decision without taking into account any reason that is not a legal one. The Court acts within the rules of reason, justice and law, within the limits and the objects intended by a particular legislation. (See: R v Board of Education [1990] 2 KB 165).

Further, the Court balances the rights of the Applicant and the best interests of justice as well as the needs of society.

Sections 14 and 15 of the **Trial on Indictments Act** operationalize Article 23(6) of the **Constitution**. Those provisions of law govern the release on bail by the High Court.

## Section 14 $(1)$ of the **TIA**, provides:

The High Court may at any stage in the proceedings release the accused person 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 is named in the bond.

Section 15 $(1)$ of the **TIA** states:

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.

The Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions 2022) which are meant to give effect to the different provisions relating to bail, also make provision for circumstances or parameters within which the Court will exercise its jurisdiction.

The Applicant in instant case is charged with the offence of Murder contrary to Sections 188 and 189 of the **Penal Code Act** which is only triable by the High Court. This Court is therefore seized with the jurisdiction to consider the application for bail.

The primary consideration in an application for bail is whether, if granted, the Applicant will report for trial. It is inevitable that the possibility of a looming death

sentence is a factor here. The court must remind itself that such a sentence may tempt one to abscond.

For the above reasons, sureties and the place of abode are significant. They partly give or enable assurances of the applicant's attendance of court. This court has also examined the indictment and summary of evidence in the main case. While the applicant enjoys a presumption of innocence, the circumstances of her case are unique. The gravity and nature of the offence coupled with the alleged confession in the main case are factors this court has taken into account.

After an evaluation of the above, this Court finds that the Applicant does not merit a release on bail at this stage.

Accordingly, the application fails and is dismissed.

**Michael Elubu** Judge 30.3.2024