Okiring v Uganda (Miscellaneous Criminal Application 90 of 2024) [2024] UGHC 1053 (28 October 2024)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT SOROTI

# MISCELLANEOUS CRIMINAL APPLICATION NO. 090 OF 2024 (Arising from Criminal Case No. KUMI-CO-410-2024)

OKIRING JULIUS ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

UGANDA :::::::::::::::::::::::::::::::::::

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

### Introduction

[1] Okiring Julius (the applicant) was charged with the offence of Aggravated Trafficking in children contrary to sections 3(1)(a) & 5(a) of the Prevention of Trafficking in Persons Act 2009, now Cap 131. It was alleged that the applicant (who is A2 in the charge), with another Ejuma Johnson (A1 on the charge) and others still at large, on 9th June 2024 at Eleicho Village in Kumi District recruited or transported or harboured Ikilai Jennifer Mary a girl child of 14 years by means of deception or abuse of power or position of vulnerability for purpose of sexual exploitation and early child marriage.

[2] The applicant brought this application by Notice of Motion under Articles 23(6)(a) and 28(3) 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 was arrested, charged

with the offence of aggravated trafficking and remanded at Kumi Government Prison. He was later committed to the High Court for trial and remained on remand in Kumi Government Prison. He is yet to stand trial and is unsure as to when his case shall be heard. The applicant stated that he will not abscond on bail if released. He further stated that he is presumed innocent until proved guilty or until he pleads guilty to the alleged charges. He also stated that the offence he is charged with is bailable by the Court and he has a constitutional right to apply for his release on bail. He has presented three sureties who are ready and willing to stand for him. He and the sureties have 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 the offence of aggravated trafficking with which the applicant is charged attracts a maximum penalty of death upon conviction, which fact is within the knowledge of the applicant and is likely to influence him to abscond if released on bail. The deponent stated that although the applicant has a constitutional right to apply for bail, the discretion to grant bail remains a preserve of the Court. He stated that if released on bail, the applicant is likely to interfere with key prosecution witnesses who are known to him and are not under any protection. He further stated that the claim by the applicant that he suffers from a grave illness is a mere speculation since the applicant has not produced any medical report showing that the prison's medical facilities have failed to treat the applicant's condition. The deponent also stated that the sureties presented are not substantial as their documents of identification are not complete. He stated that the prosecution is ready with its witnesses to proceed if the case is scheduled by the Court for hearing. He concluded that the applicant has not demonstrated that he has any exceptional circumstances justifying his release on bail and it is in the interest of justice that the bail application is denied.

### **Representation and Hearing**

[5] The applicant was represented by **Ms. Hellen Amulen** from M/s Asire & Co. Advocates while the respondent (State) was represented by Mr. Okello Paul from the Office of the Director of Public Prosecutions (ODPP). The hearing 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] I will 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 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 trafficking 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

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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 who are known to him and are not under any protection; - (iv) The applicant has not demonstrated 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;

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- 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 Maaga Village, Oleico Parish, Mukongoro Sub-county in Kumi District. The applicant adduced a copy of a letter from the area L. C 1 Chairperson and a copy of his work identity card. These facts were not controverted by the respondent. I am convinced that the applicant has proved to the Court that he has a fixed place of abode.

[15] Concerning the sureties, the applicant produced three sureties before the Court that were identified and observed by the Court. The objections by the respondent to the sureties were; first that Okello Martin had not produced his work identity card although it was claimed that he worked with the UPDF. When the sureties appeared before the Court for identification, the said surety produced his work ID and informed the Court where he was stationed. The objection against him is therefore overruled. The other objection was that the sureties had not produced their telephone numbers which would make it difficult to trace them. The sureties presented their telephone contacts when they appeared before the Court. This objection is also without merit.

[16] 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; $\frac{1}{2}$ - *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".*

[17] 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. In this case, I find that the sureties were well identified, they produced the necessary documents, their relationship with the applicant was established, they are responsible enough in as far as the applicant is concerned and are capable of ensuring or enforcing his return to court if released on bail. The sureties presented have therefore been found by the Court to be substantial.

[18] There is no allegation before the Court that the applicant had on any previous occasion been released on bail and failed to comply with the condition of his bail. Neither was it alleged that there are any other charges pending against the applicant. In all, therefore, the applicant has satisfied the Court that he is not likely to abscond when released on bail. This ground of objection to his bail is overruled.

[19] In 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 can 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.

[20] The third ground of objection by the respondent was that the applicant is likely to interfere with key prosecution witnesses who are known to him and are not under any protection. 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 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, apart from the aspect of the gravity of the offence, I find that the other factors are in favour of the applicant. Given his age and status in the community, and in absence of any evidence adduced by the respondent to the contrary, I do not foresee a serious threat on the part of the applicant to interfere with the witnesses in the matter. This ground of objection by the respondent is also not made out.

[21] The contention that the applicant has not demonstrated any exceptional circumstances justifying his release on bail has been hinted on 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, it was shown that the applicant is a sick person suffering from TB and was due for review. He produced medical documents. However, I have not seen any evidence to satisfy me that the medical condition suffered by the applicant cannot be managed while in prison. Nevertheless, since this is not a mandatory requirement, it is not reason by itself to occasion a denial of the applicant's application for bail.

[22] Lastly, it was argued by the respondent that it is in the interest of justice that the bail application is denied. Given the above findings, however, I find that the applicant has satisfied the Court on the several grounds as analyzed above, that he qualifies to be released on bail. It is therefore in the interest of justice that the bail application by the applicant be granted.

[23] Accordingly, this application for bail is granted on the following terms;

- (a) The applicant shall make a cash deposit of UGX $2,000,000/$ =. - (b) Each of the three sureties presented shall execute a bond in the sum of UGX 10,000,000/ $=$ not cash. - (c) The applicant shall report to the Registrar of this Court once a month on every 28th day of the month or the next working day if the 28th day falls on a weekend; until otherwise directed by the Court. - (d) The applicant and his sureties shall desist from any acts that may be construed as a threat or interference with the prosecution witnesses.

It is so ordered.

Dated and signed this 28th day of October, 2024.

zmannale **Boniface Wamala**

**JUDGE**