Otim v Uganda (Miscellaneous Criminal Application 83 of 2024) [2024] UGHC 1052 (28 October 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT SOROTI MISCELLANEOUS CRIMINAL APPLICATION NO. 083 OF 2024 (Arising from Criminal Case No. SOR-CO-343-2024) OTIM JULIUS EMMANUEL :::::::::::::::::::::::::::::::::::: **VERSUS** UGANDA :::::::::::::::::::::::::::::::::::

## **BEFORE: HON. JUSTICE BONIFACE WAMALA**

## **RULING ON BAIL**

#### Introduction

[1] Otim Julius Emmanuel (the applicant) was charged with the offence of Aggravated Defilement contrary to section 129(1), (3) & (4)(a) [now section 116(1), (3) 7 (4)(a)] of the Penal Code Act (PCA), Cap 128. It was alleged that the applicant, between 22nd and 27th December 2023 at Cell "A" Oderai Ward in Soroti City, performed a sexual act with Aalo Rebecca, a girl aged 13 years.

[2] The applicant brought this application by Notice of Motion under Articles 23(6) of the Constitution of the Republic of Uganda and Section 14 [now **section 15**] 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 is aged 36 years, married to one wife and has four children who depend on him. He was arrested on 9th April 2024 and charged with the offence of aggravated defilement. He was remanded to Soroti Government Prison on 12th April 2024. He has not yet been committed to the High Court for hearing of his case. The applicant stated that if released on bail, he will not interfere with police investigations or witnesses and will not abscond from bail. He further stated that he is presumed innocent until proven guilty. He had a permanent place of abode at the time of his arrest

and has presented four substantial sureties who are ready and willing to stand for him, whose particulars are set out in the affidavit.

[4] The application was opposed through an affidavit in reply deposed by Ms. Adero Doreen Olwo, a Senior 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 under the law and power to grant bail remains a preserve of the Court. She stated that the the offence of aggravated defilement with which the applicant is charged attracts a maximum penalty of death upon conviction which fact is within the knowledge of the applicant and may influence his abscondient of released on bail. The deponent averred that if released on bail, the applicant is likely to interfere with key prosecution witnesses who are well known to him and are currently under no protection. She further averred that the attached details of the sureties do not prove that they are substantial and able to comply with the conditions that may be set by the Court. She also stated that the applicant has not demonstrated that he has any exceptional circumstances justifying his release on bail. She finally stated that the respondent is taking all considerable measures to ensure that the applicant is committed to the High Court for trial and it is in the interest of justice that the application is denied.

#### **Representation and Hearing**

[5] The applicant was represented by **Mr. Samuel Moses Amodoi** from M/s Amodoi Associated 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 may 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 the 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] In the present case, 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 applicant is likely to interfere with key prosecution witnesses who are well known to him and are currently under no protection: - (iii) The State is taking all considerable measures to ensure that the applicant is committed to the High Court for trial; and - (iv) It is in the interest of justice that the bail application is denied.

[13] Regarding the possibility of absconding 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 Cell "A" Oderai Ward in Soroti City. The applicant adduced a copy of his National Identity Card and a copy of a letter from the area L. C 1 Chairperson; whose originals were viewed by the Court. 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; although in the application he had made reference to four sureties. The three sureties were duly identified and observed by the Court. The objection by the respondent to the sureties is based on the claim that in the L. C 1 letters produced by them, the L. C 1 Chairperson did not indicate that each of them has a fixed place of abode where they reside; secondly that the L. C letters were only signed by the L. C 1 Chairperson and not witnessed by any other member of the committee; and thirdly that the sureties had not adduced evidence of their financial capacity as to be able to forfeit the required bond should the applicant abscond.

[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; $\Box$ - *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.

[18] On the case before me, 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 aspects raised by Counsel for the respondent are alien to the essential factors to be considered by the Court. The documents produced by the sureties disclose their residential address. The claim that they do not indicate whether the same are fixed places of abode is without merit. There is no contrary evidence showing that the named addresses are, in fact, not fixed places of abode for the respective sureties.

[19] Regarding the argument that the letters were only signed by the Chairperson, there is no basis for a requirement that the introductory letters must be witnessed by other members of the committee. The third issue raised by Counsel for the respondent concerned evidence of the financial capacity of the sureties. In my view, once the Court is satisfied that the sureties are responsible persons, with influence or control over the accused, a requirement for proof of their financial capacity would be ulterior and misplaced. Taking all factors highlighted above, I am in position to make a finding that the sureties presented by the applicant have been found by the Court to be substantial. The applicant has therefore satisfied the Court that he is not likely to abscond when released on bail. This ground of objection to his bail application is overruled.

[20] On the second ground of objection, it was stated that the applicant is likely to interfere with key prosecution witnesses who are well known to him and are currently under no protection. For the court to arrive at a conclusion as to whether or not an applicant for bail is likely to interfere with witnesses, 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, despite the gravity of the offence and the severity of the sentence it would attract upon conviction, I have taken into consideration that the fact that the

applicant has stayed on remand for a period of over six months on remand having been first remanded on 12th April 2024. His mandatory remand period of six months has therefore elapsed. His continued stay on remand is therefore unconstitutional and the same cannot be reversed or mitigated by any alleged threat of interference with prosecution witnesses.

[21] The argument that the State is taking all considerable measures to ensure that the applicant is committed to the High Court for trial is overtaken by events. As I have indicated above, the mandatory remand period has already elapsed and it is in the interest of justice that the bail application is granted.

- [22] Accordingly, I have allowed the application for bail on the following terms; - (a) The applicant shall execute a bond of UGX $5,000,000/$ = not cash. - (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 police investigations or prosecution witnesses.

It is so ordered.

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

**Boniface Wamala JUDGE**