Ogaaga v Uganda (Criminal Miscellaneous Application 48 of 2023) [2024] UGHC 794 (28 February 2024)

Full Case Text

## The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Criminal Miscellaneous Application No. 48 of 2023

(Arising from Criminal Session Case No. 217 of 2021)

Ogaaga Naputal :::::::::::::::::::::::::::::::::::: 10

### Versus

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

# Before: Hon. Justice Dr Henry Peter Adonyo

### Ruling

#### 1. Background: 15

The applicant was indicted with the offence of aggravated defilement, contrary to Section 129(3)(4)(a) of the Penal Code Act, Cap. 120 as amended. It is alleged that the applicant, on 31st March 2022 at Kaderin village, Kadami sub-county in Kumi district, performed a sexual act with Asio Ketula, a girl aged 7 years.

#### 20 2. Legal basis of the Application:

The application is by notice of motion under Articles 23(6)(a) and 28(1)(3) of the Constitution of the Republic of Uganda, 1995, (the Constitution), and Sections 14 and 15(1)(b)(c) of the Trial on Indictments Act, Cap 23 (TIA), for orders that the applicant has special circumstances, bail be granted.

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### 3. Grounds:

The application is anchored on grounds briefly stated in the application and enhanced in the supporting affidavit sworn by the applicant. That;

- a) The applicant was charged with the offence of Aggravated Defilement contrary to Section 129(3) and (4) of the Penal Code Act, Cap. 120. - b) The applicant is 83 years old and is prone to sickness, and his continued detention in prison endangers his life. - c) The applicant's constitutional right to a speedy trial has been violated, while he is presumed innocent until proven guilty. - d) The applicant has been in custody since 4th April 2022, when he was arrested and detained in Mukongoro police custody and later in Kumi police custody on 7th April 2022, where on the same day, he appeared in Kumi Magistrates court and was remanded. - e) On 22nd April 2022, the applicant was arraigned in the Chief Magistrates Court of Kumi at Kumi, where he was committed to the High Court and remanded to Soroti Government Prison. - f) The applicant's stay in custody is uncertain since there is no sign of a High Court session, which will soon take place in the Soroti High Court circuit. - g) The applicant will not interfere with state witnesses he doesn't know. - h) The applicant has a fixed place of abode at Nyaguo village/parish, formerly Kaderin village/parish, currently Kadami sub-county, formerly Mukongoro sub-county, Kumi district, within the Jurisdiction of this Honorable Court. (Copy of National Identity Card annexure "B") - i) The applicant has two substantial sureties.

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- j) The applicant is a law-abiding citizen, ready and willing to abide by the bail conditions set by the Court. - k) The applicant will attend his trial as and when the Court commands him to do so. - 4. Affidavit in reply: - The respondent objected to the instant application through an affidavit in reply 10 sworn by Okello Paul – a State Attorney in the ODPP's Office – Soroti, who, but for brevity, stated that. - a) The applicant is charged with the offence of aggravated defilement contrary to sections 129(3), (4), (a) of the Penal Code Act, whose penalty is a liability to suffer death; thus, the applicant is most likely to abscond bail in fear of the severe sentence upon conviction. - b) The prosecution is ready with its witnesses since the accused has been committed for trial before this honourable court; hence, this application is intended to delay the hearing of the case. - c) Although the applicant has a constitutional right to apply for bail, the Court maintains the discretion to grant or not. - d) The Applicant is likely to interfere with the prosecution witnesses, considering the fact that the offence was committed with a lot of violence and attracts a death sentence. - e) The respondent has noted that all the introductory letters purporting that the applicant and his sureties are residents of those areas; however, no documentary proof, such as land sale agreement, certificate of Title and/or tenancy agreement, has been availed to prove that they have fixed places of abode within the jurisdiction of this Honorable court.

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- f) The applicant's affidavit in support states that he has presented two sureties, respectively; however, both sureties' occupations have not been stated; hence, there is a high likelihood that they will not be able to answer to the recognisance pledged by the court. Further, the sureties have not presented their telephone numbers, which will enable the court to trace them in case the applicant absconds bail. The sureties are also much younger than the applicant, so they cannot guarantee that he will attend the trial. - g) The respondent believes that this court is taking considerable measures to ensure that the committed applicant is cause-listed for trial as soon as possible, and there is no need to dwell on uncertainties of when the case shall be heard.

# 5. Submissions:

In arguing this application, the applicant and respondent mutually filed their written submissions. The court considered the submissions, application, affidavits, attached documents, relevant legal authorities, and applicable laws while determining this application.

### 6. Decision:

The presumption of innocence is the primary principle for which a court may, in the exercise of its discretion, release an accused person on bail pending trial as Article

28(3)(a) of the Constitution of the Republic of Uganda, 1995) provides that. 25

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.

Article 23(6)(a) of the Constitution of the Republic of Uganda provides that:

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Where a person is arrested in respect of a Criminal Offence, he is entitled to apply to $\mathsf{S}$ the Court to be released on bail, and the Court may grant that person bail on such conditions as the Court considers reasonable.

In his affidavit, the applicant referred to his constitutional right to apply for bail as opposed to the respondent's contention that the court still reserves the right to grant or not grant bail in which the respondent prayed that the instant application be rejected but the constitutional right to apply for bail alluded to by the applicant is correct in terms of Article $23(6)(a)$ of the Constitution.

Capital offences such as aggravated defilement in this instant application are bailable; however, whether the court is inclined to exercise the discretion to grant

or not is a matter dependent on the circumstances of each case. 15

on such a date and at such a time as is named in the bond.

Section 14(1) of the Trial on Indictments Act, Cap 23 provides the stance outlined in Article 23(6)(a) of the Constitution. It enjoins the High Court with 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

- The Constitution (Bail Guidelines for Courts of Judicature) Practice Directions, 2022, 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.

Having exhausted the legal provisions regarding bail, I will now turn to the merits of this application.

- Under Section 15(1) of the Trial on Indictments Act, the Court may refuse to grant 10 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 exceptional circumstances exist justifying his or her release. - The applicant stated in his affidavit that he is a law-abiding citizen, ready and willing 15 to abide by the bail conditions set by the court, and he undertook to attend his trial as and when the Court directs him to do so, which meant that he will not abscond when released on bail. The applicant, in his affidavit in support of the application, pleaded exceptional circumstances that he is 83 years old and is prone to sickness, - and his continued detention in prison endangers his life. 20

In Mubbale Peter V. Uganda Court of Appeal Criminal Miscellaneous Application No. 82/2017, Justice Stephen Musota JA as he then was stated that:

> "Whereas the case of John Kaye V. Attorney General, Constitutional Petition No. 52 of 2012, having cited Francis Ogwang V. Uganda, Criminal Misc. Application No. 25 of 2003 considered the average age of 50 as advanced age was good law, it is my considered view that the life expectancy today in Uganda has increased and 50 years would no longer, in my view, be advanced age. According to the latest World Health

$\mathsf{S}$ Organization data published in 2015, life expectancy in Uganda is 60.3 male, 64.3 Female and total life expectancy 62.3. In this case, the applicant being 55 years of age would not qualify him to be of advanced age. It is my considered view therefore that an applicant should be regarded to be of advanced age at 60 years."

In this case, the applicant stated that he is 83 years old but did not provide any proof 10 of the same. Ordinarily 83 years is 23 years more than 60 years, which Justice Stephen Musota considered advanced age.

Therefore, were I to believe that the applicant 83 years old then that age would be considered as advanced age and that would be proof of an exceptional circumstance.

However, according to the case of Foundation for Human Rights Initiatives V Attorney General (Constitutional Petition No. 20 of 2006) [2008], proof of these exceptional circumstances is not mandatory as the courts have the discretion to grant bail even when none is proved as was the case in 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 the reasonable conditions imposed on the 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 25 account the following factors; - (a) Whether the accused has a fixed abode within the jurisdiction of the court or is ordinarily resident outside Uganda.

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- (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 to grant or not to grant bail to the applicant, the court is enjoined to 10 consider the accused's demonstration that he will not abscond trial by considering the above factors, which are looked at one by one. - a) Fixed place of abode:

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The applicant stated that he has a fixed place of abode at Nyaguo village/parish, formerly Kaderin village/parish, currently Kadami sub-county, formerly Mukongoro 15 sub-county, Kumi district, within the Jurisdiction of this Honorable Court to which he annexed a copy of his National Identity Card as "B".

On the other hand, the respondent contended that in all the introductory letters purporting that the applicant and his sureties are residents of those areas, there is no documentary proof, such as a land sale agreement, certificate of Title and/or tenancy agreement, has been availed to prove that they have fixed places of abode within the jurisdiction of this Honorable court.

Section 15(4) (a) of the Trial on Indictments Act underlines the importance of 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 same, bail can 25 be denied.

The above provision is augmented by paragraph 13(k) of the constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions.

- While the law does not define the phrase 'fixed place of abode', my interpretation is $\mathsf{S}$ that a fixed place of abode ordinarily must be one which is within the jurisdiction of the court considering the bail application. It means that one is traceable and is not likely to abscond as one would easily attend court whenever required. - In proof of his fixed place of abode, the applicant presented annexures "B" and "C", which are his copy of the National Identity Card and the LC1 introductory, 10 respectively. I have perused Annexure "B", which lists the particulars of the place he stated to have his fixed place of abode. Also, annexure "C", dated 26/07/2023, written by Oyiba Yakobo, states that the applicant is a true resident of the stated area, which suffices as proof of his fixed place of abode within the jurisdiction of this Honourable Court. 15 - b) Substantial sureties:

The applicant states that he has two substantial sureties whose particulars are;

a. Oyiba Jacob, 59 years of age, the Chairperson L. C1 of the applicant, has a permanent place of abode at Nyaguo Village/Parish, formerly Kaderin Village/Parish, currently Kadami Sub-County, formerly Mukongoro Sub-County, Kumi District. He holds a voter's card of personal ID No. CM64021100PHRJ and a letter from the area LC1 (Photocopies of which are hereto attached as annexures "E" & "F")

b. Oboi Joseph, 53 years of age, the Chairperson Ikomolo-Kakile clan, where the applicant hails from and has a permanent place of abode at Nyaguo Village/Parish, formerly Kaderin Village/Parish, Currently Kadami Sub-County, formerly Mukongoro Sub-County, Kumi District. He holds voter card personal ID No. CM670021100PQEK and a letter

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from the area LCI. (Photocopies of which are hereto attached as annexures "G" & "H")

The applicant's counsel submitted that they explained to the sureties their roles and duties as sureties, which the proposed sureties understood.

On the other hand, the respondent averred that the proposed sureties' occupations have not been stated; hence, there is a high likelihood that they will not be able to answer to the recognisance pledged by the court.

Further, that the sureties have not presented their telephone numbers, which will enable the court to trace them in case the applicant absconds bail. The sureties are also much younger than the applicant, so they cannot guarantee that he will attend

the trial. 15

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 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 determinants on the suitability of a surety, thus

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

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

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The applicant has disclosed the ages of the sureties, their responsibilities in society as both are chairpersons, and their fixed places of abode, which are associated with

the LC1 introductory letters with respect to the sureties. While it is true that the 15 sureties are indeed younger than the applicant, it is clear that they occupy responsible positions within in society as chairperson of the LC1, where the applicant is a resident and the other chairperson of the clan of the applicant; that responsibility gives the authority to superintends over applicant and thus they can exercise control over the applicant and encourage his attendance to trial. I do thus 20 find the proposed sureties substantial enough to meet the considerations.

## 7. Conclusion:

From my findings above, I am satisfied that this is a case where this court can exercise its discretion and grant of bail with the doing so not subverting the cause of justice given the substantiality of the sureties and the clear proof that the applicant is a permanent resident within the jurisdiction of the High Court.

- Accordingly, bail is granted to the applicant pending the trial of the case against him $\mathsf{S}$ upon the conditions set below, which takes into account the serious nature of the offence he is charged with. - 8. Orders:

The applicant is granted bail under the following conditions:

- a) The applicant is to deposit a Cash bond of Shs. 1, 000,000/= - b) The applicant and each of his sureties are each to provide their 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 record purposes. - c) Each of the sureties presented is bound in the sum of Shs 5,000,000/= not cash. - d) The Applicant to report to the Registrar of this Court once a month on the last Monday of each month with effect from 25th March, 2024 until otherwise directed by court.

I so order. 20

Hon. Dr. Justice Henry Peter Adonyo Judge 28th February 2024