Ogwang v Uganda (Criminal Miscellaneous Application 116 of 2024) [2024] UGHC 1050 (4 November 2024)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA **HOLDEN AT SOROTI MISCELLANEOUS CRIMINAL APPLICATION NO. 116 OF 2024** (Arising from Kaberamaido Criminal Case No. KBD-AA-007-2024) OGWANG IVAN :::::::::::::::::::::::::::::::::::: VERSUS UGANDA :::::::::::::::::::::::::::::::::::

# BEFORE: HON. JUSTICE BONIFACE WAMALA **RULING ON BAIL**

#### **Introduction**

[1] Ogwang Ivan (the applicant) was charged with the offence of Aggravated Defilement contrary to section 129(1), (3) & (4)(a) & (b) [now section 116(1), (3), (4)(a) & (b)] of the Penal Code Act (PCA), Cap 128. It was alleged that the applicant during the month of January 2024 up to 29th April 2024 at Oculoi Village in Kaberamaido District, performed a sexual act with Aguyo Irene, a girl aged 09 years old while knowing that he was HIV positive.

[2] The applicant brought this application by Notice of Motion under Articles 20(2), 23(6)(a) and 28(1) & (3)(a) of the Constitution of the Republic of Uganda and Section 14(1) [now section 15(1)] of the Trial on Indictments Act, Cap 25 (TIA) seeking for an order that the applicant be released on bail pending his trial by the High Court.

[3] The grounds of the application are summarized in the Notice of Motion and also set out in the affidavit in support of the application deposed by the applicant. Briefly, the grounds are that the applicant, aged 18 years, was charged with the offence of Aggravated Defilement and remanded on 2nd May 2024 at Kaberamaido Government Prison. The applicant was committed to the High Court for trial on 27th August 2024 but a hearing date for his case has

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not been fixed. He states that he has never abused any bail terms and has no other charges pending against him. He will not interfere with any investigations or witnesses in the matter. He has presented two substantial sureties who are ready and willing to stand for him. He has a permanent places of abode as indicated in the affidavit in support. He concluded that it is in the interest of justice that the application is granted.

[4] The application was opposed through an affidavit in reply deposed by Mr. Okello Paul, a State Attorney C/O ODDP Soroti Office, who stated that although the applicant is presumed innocent until proven guilty and has a right to apply for bail, there are guidelines laid out by the law and it remains the discretion of the court to grant an accused person bail. He stated that the offence of aggravated defilement with which the applicant is charged attracts a maximum penalty of death and the applicant is most likely to abscond bail in fear of the severe sentence upon conviction. He further stated that the applicant is likely to interfere with witnesses given the seriousness and sensitivity of the offence with which he is charged. He also stated that the sureties presented are not substantial and there was no guarantee that they will comply with the conditions that might be imposed by the Court. The deponent averred that the applicant has not demonstrated that he has any exceptional circumstances justifying his release on bail. He further averred that the prosecution is ready with its witnesses to proceed if the case is scheduled by the Court for hearing. He concluded that it is in the interest of justice that the bail application is denied.

### Representation and Hearing

[5] The applicant was represented by Mr. George Engwau from M/s Engwau & Co. Advocates while the respondent (State) was represented by Mr. Okello Paul from the Office of the Director of Public Prosecutions (ODPP). The hearing

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proceeded by way of written submissions which were duly filed by both counsel and have been adopted and relied on by the Court.

[6] The issue for determination by the Court is whether the applicant has established sufficient grounds for his release on bail.

#### Resolution by the Court

[7] Let me start by pointing out that bail is an agreement between the court and an applicant consisting of a bond, with or without surety, for a reasonable amount as the circumstances of the case permit, conditioned upon the applicant appearing before such a court on a date and time as named in the bond to attend his/her trial. See: Section 15(1) of the Trial on Indictments Act, Cap 25 and Uganda v Lawrence Luzinda 1986 (HCB) 33.

[8] The foundational basis upon which the court is enjoined to exercise its discretion to allow or reject an application for bail is the presumption of innocence, based in law and particularly on Article 28(3)(a) of the Constitution. Article 28(3)(a) of the Constitution of the Republic of Uganda provides that "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". This legal position is also based on Article 11(1) of the Universal Declaration of Human Rights and Article 14(2) of the International Covenant on Civil and Political Rights.

[9] Under Article 23(6)(a) of the Constitution, it is provided that where a person is arrested in respect of a criminal offence, he/she is entitled to apply to the court to be released on bail, and the court may grant that person bail on such conditions as the court considers reasonable. As such, the core aspects to be taken into consideration by the court when dealing with an application for bail are the presumption of innocence of an accused person, the right of the

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accused person to apply for bail, and the discretion of the court to either grant or reject the bail application.

[10] When exercising discretion to grant or refuse bail, the court is given further guidance through The Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions 2022, which under paragraph 5 thereof sets out the following general principles to be taken into account by the court when considering a bail application, namely;

- 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 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.

[11] Under Section 16(1) of the Trial on Indictments Act, the High Court may refuse to grant bail to any person charged with any of offences stipulated under Section 16(2), aggravated defilement being one of them, unless such applicant proves, to the satisfaction of the court, that he or she will not abscond when released on bail and that exceptional circumstances exist justifying his or her release on bail. However, under the law, an applicant for bail is no longer required mandatorily to plead or prove exceptional circumstances following the decision of the Constitutional Court in Foundation for Human Rights Initiatives v Attorney General, Constitutional Petition No. 20 of 2006 wherein it was held that it is no longer mandatory to prove exceptional circumstances given the fact that the courts have the discretion to grant bail even when none is proved. In Uganda v Kizza Besigye, Constitutional Reference No. 20 of 2005 the Court 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 an application for bail.

[12] On the case before me, the applicant's bail application has been opposed by the respondent on the following grounds;

- (i) That the applicant is likely to abscond given the gravity of the offence and the fact that the sureties presented by the applicant are not substantial: - (ii) The State is ready with its witnesses to proceed with the hearing of the criminal case; - (iii) The applicant is likely to interfere with key prosecution witnesses considering the fact that the offence was committed with a lot of violence and the severity of the sentence attracted by the offence upon conviction: - (iv) The applicant has not justified any exceptional circumstances justifying his release on bail; and - (v) It is in the interest of justice that the bail application is denied.

[13] Regarding the possibility of abscondment by the applicant if released on bail, it is provided under Section 16(4) of the TIA that in considering whether or not the accused is likely to abscond, the court may take into account the following factors:

- *a) whether the accused has a fixed abode within the jurisdiction of the court* or is ordinarily resident outside Uganda; - b) whether the accused has sound sureties within the jurisdiction to undertake that accused shall comply with the conditions of his or her bail; - c) whether the accused has on a previous occasion when released on bail failed to comply with the condition of his or her bail; and - *d) whether there are other charges pending against the accused.*

[14] On the evidence before me, it was shown by the applicant that he has a fixed place of abode at Oculoi Village, Apalatau Parish, Alwa Sub-county in Kaberamaido District. The applicant produced a copy of a police report indicating loss of his National Identity Card and a copy of a letter from the area L. C 1 Chairperson. I find the above sufficient to prove that the applicant has a fixed place of abode in the area where he resided before his arrest.

[15] Concerning the sureties, the applicant produced two sureties before the Court who were identified and observed by the Court, namely, Aeso Betty, an Aunt to the applicant and Eruwo Denis, an Uncle to the applicant. In Paragraph 15 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, the determinants on the suitability of a surety are provided for as follows;

# "Determining suitability of surety

- 1) When considering the suitability of a surety, the court shall take into *account the following factors;* - *a) the age of the surety;* - *b) work and residential address of the surety;* - *c) character and antecedents of the surety;* - *d) relationship to the accused person; and* - *e)* any other factor as the court may deem fit".

[16] In sub-paragraph (2) of paragraph 15 of the Bail Guidelines, it is provided that the proposed surety shall provide documentary proof, which may include a copy of his or her National Identity Card, passport or alien's Identification Card; an introduction letter from the local council 1 chairperson of the area where the surety is ordinarily resident, among others.

[17] On the case before me, the two sureties were well identified, they produced the necessary documents and their relationship with the applicant was well established. However, the Court was not told as to whether the applicant has parents and/or siblings, and if so, why none of them appeared to stand for him as surety. As shown in the bail guidelines in paragraph 15(1) cited above, the relationship of the surety to the accused person is a key determinant of the substantiality of a surety. I am therefore not satisfied that sureties presented are substantial enough as to ensure compliance with the conditions that could be set by the Court if bail was granted. I am also not satisfied that the applicant will not abscond when released on bail given the gravity of the offence and the severity of the likely punishment in the event of the applicant being convicted; particularly on account of fear of the consequences if he were to be convicted upon trial.

[18] On the second ground of objection, it was claimed by the State that on their part, they are ready with their witnesses to proceed with the hearing of the criminal case. However, this cannot be a parameter upon which the Court could base to refuse a bail application. This is because it is a known fact that the question as to whether or not an accused person in a capital offence will stand trial and when, is a function of the capacity and readiness by the court to organize a criminal session. The court's capacity and readiness are dictated by a number of factors which include availability of funds, availability of a Judge, among other factors. As such, the singular readiness of the State and its witnesses is incapable of offering a prediction as to when the applicant is likely to stand trial. This ground of objection is devoid of merit and is overruled.

[19] The third ground of objection by the respondent was that the applicant is likely to interfere with key prosecution witnesses considering the fact that the offence was committed with a lot of violence and the severity of the sentence attracted by the offence upon conviction. For the court to arrive at a conclusion as to whether or not an applicant for bail is likely to interfere with witnesses or not, the court has to look at a number of circumstances including the nature of

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the offence, the age of the applicant, how long the applicant has been on remand, how influential the applicant is in the community, among others. In this case, given the gravity of the offence and the age of the applicant, I find nothing to satisfy me that the applicant will not interfere with the witnesses in the matter. A potential threat to that effect exists and this ground of objection by the respondent is thus made out.

[20] The other objection by the respondent was that the applicant has not demonstrated any exceptional circumstances justifying his release on bail. As indicated herein above, it is a settled position of the law that this requirement is no longer mandatory. However, the court still retains discretion to take into account whether the applicant has any special circumstances that warrants the court to exercise discretion in his favour. In this case, no such circumstances were adduced. Although such is not reason enough to itself occasion a denial of the applicant's application, the absence of any such peculiar circumstances leaves the Court unpersuaded as to whether the application for bail should be granted.

[21] It was, lastly, argued by the respondent that it is in the interest of justice that the bail application is denied. Given the above findings, I find that the applicant has failed to satisfy the Court that he is entitled to be released on bail given the circumstances before the Court. The interest of justice therefore dictates that the bail application by the applicant be denied. Accordingly, the application for bail is dismissed. The applicant shall await placing of his case on session for hearing. It is so ordered.

Dated and signed this 4th day of November, 2024.

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**Boniface Wamala JUDGE**