Twesigomwe v Uganda (Miscellaneous Application 16 of 2025) [2025] UGHCACD 6 (17 March 2025)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA

### HOLDEN AT KAMPALA

#### **MISCELLENIOUS APPLICATIONS 16 OF 2025**

### (Arising from Criminal Session Case 13 of 2025)

#### **TWESIGOMWE PEDISON. ..................... APPLICANT**

#### **VRS**

#### UGANDA. .................... RESPONDENT

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### BEFORE GIDUDU, J

#### **RULING ON BAIL**

The applicant is an Assistant Commissioner Accounts in the Ministry of Finance Planning and Economic Development (MOFP&ED). He is jointly charged with others with **corruption C/S 2(g) & 26(1) of the ACA, Cap 116.** He is accused of participating as an accomplice in the commission of the offence of corruption by one Tony Yawe when they concealed the irregular payment of USD 6,134,137.75 to an unauthorized payee in the name of Roadway Co. Ltd.

He is also jointly charged with **money laundering C/S 3(b), 116, 136(a) of the AMLA, Cap 118.** He is accused intentionally concealing the true nature of USD 6,134,137.75 which was fraudulently paid to Roadway Co. Ltd of Tokyo Japan by manipulating the payment system to falsely indicate was made to International Development Association, whereas not.

He seeks to be released on bail pending trial. The application is brought under Articles 23(6)(a) and 28(3) of the Constitution and $\mathbb{R}^{\omega}$ Sections 15 and 16 of the TIA, Cap 25.

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## Representation.

The applicants were represented by several counsel as follows:

M/S Oine Ronald, Mackay Robert, Kaggwa Davi, Atukwasa Christine and Acen Novy Norin.

The respondent DPP was represented by $M/S$ Birivumbuka Richard (CSA) and Nam Terpista (SA)

The application is grounded as follows: -

He has a right to apply for bail;

He is presumed innocent until proven guilty;

He has a fixed place of abode; $10$

He has substantial sureties to ensure he turns up for trial;

He is ready to furnish securities for his bail;

The offences are bailable by this court;

He has no other pending charges.

The applicant is a 45-year-old resident of Bwebajja, Namulanda, kajiansi Town council in Wakiso district. He is a father of four children and has dependent parent. He stakes his condominium property vide plot 23122 on block 273, Kyadondo Wakiso land at Kigo Serena Heights unit 465

He presented the following sureties: - $20$

- 1. Hon. Ndyomugyenyi Roland, 48, MP for Rukiga County, Rukiga district. He is resident of Kyaliwajala in Kira MC in Wakiso district. He is a paternal uncle to the applicant. - 2. Hon. Kamuntu Moses, 44, MP Rubanda County West, Rubanda district. He is resident of Nakigalala, Kitende, kajjansi TC in Wakiso district. He is a brother in law to the applicant. - 3. Barugahare Davis, 47, Assistant Commissioner Accounts in the Ministry of Energy and Mineral Development. He is a resident of DFI Cell, Ntawo Ward, Mukono MC. He is a longtime friend of the applicant.

Mr. Birivumbuka for the respondent opposed bail on the following grounds: -

- 1. That the applicant had not demonstrated that he had a fixed place of abode. - 2. That his LC introduction letter did not state that the applicant is a permanent resident of the area. - 3. That the title's previous owner was not cancelled out which creates doubt if the title of the condominium is his or not. Besides, he stays in Bwebajja yet the security he is giving is in Kigo. - 4. That the two MPs are not substantial sureties because they could be in debt and may lose the next election and disappear from Kampala. It was submitted that their sources of income were not disclosed. - 5. The affidavits of Kyomuhendo Joseph, CSA and D/SP Etwop Ben is that the applicant avoided police summons to report to CID headquarters whilst his co accused reported, were detained and produced in court. The applicant only appeared in court in response to the criminal summons issued by court. He was described as person capable of going underground to avoid the trial.

## Consideration by court.

Two issues stand out for resolution.

# Does the applicant merit release on bail or not?

# Are the sureties presented substantial to stand surety for the accused/applicant or not?

Bail is a temporary release of a prisoner from detention to enable him/her attend trial from outside prison. It is a discretionary power of court which it exercises to balance the promotion of the accused's rights to the presumption of innocence and the need to protect

society by keeping persons that transgress the law from circulation. See Articles $23(6)(a)$ and $28(3)(a)$ of the Constitution.

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Before granting or refusing to grant bail, courts consider the gravity of the offence and the likelihood of the prisoner to flee rather than turn up for the trial. Courts also consider whether the accused has a fixed abode where he/she lives. **Sections 15 and 16 of the TIA, Cap** $25$

The accused's antecedents such as the commission of similar offences or the likelihood to commit another crime also have a bearing on the matter of bail. The presence or absence of substantial sureties who have influence upon the accused to attend court and have capacity to meet the terms of their bond is an important consideration. See **Uganda** $\mathbf{Vrs}$ $Col.(Rtd)$ **Kiiza** Besigye, Constitutional reference 20 of 2005.

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The accused/applicant was criticized for dodging police summons which led to his absence in court when his co accused were produced in court for plea. This was said to a sign that he is unreliable if released on bail.

In reply, the applicant stated that he was summoned to the police and complied. He recorded a statement and left to go. He was not charged or given police bond. He denies receiving subsequent invitations to the police. He denies jumping police bond because he was never bonded to report to the police after the first invitation. It was his case that once the court issued criminal summons, he voluntarily appeared and was remanded to date.

It would appear to me that the police would have preferred to first detain the accused before producing him in court. I don't know what this practice achieves in legal terms. It has not been alleged that the accused jumped police bond. It has not been denied that he made a police statement and was not charged so as to be given bond. The failure to meet the police practice of being detained before being produced in court is not a ground to deny an accused who has

$30$ responded to court summons form getting bail. The objection on this ground is not legally defendable.

Does the accused/applicant have a fixed place of abode? He gave his address as Bwebajja, Namulanda, kajjansi Town council in Wakiso

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district. I was asked to consider that the LC letter from Bwebajja did not state that he is a permanent resident. The LC letter dated 19th February 2025 stated the applicant is "resident". It did not contain the word "permanent". This was said to be insufficient.

The law does not talk of a "permanent resident". Section 15(4) of **the TIA** provides that the court may take into account the following factors (a) whether the accused has a fixed abode within the jurisdiction of the court... The law speaks to a "**fixed abode**" and not "permanent resident" the objection is not supported by law. A person said to be ordinarily resident in a given place is a person with a fixed abode in that place.

Further objection was that the accused stays in Bwebajja but staked his property at Kigo instead of his house. With respect, I did not find value in this argument. A security does not have to be the accused's residence. It can be anywhere within the jurisdiction of court. As to the failure to cancel a previous owner, that is not material. The instrument creating a new owner and date of a new owner distinguish the previous owner. This is a common sense position. Drawing a line is not a legal requirement. It is a clerical function. The ownership of Muculezi Daisey and Innocent was created on 13th December, 2019 whilst that of the accused was created on 31st March 2021.

The result is that the accused/applicant qualifies to be released on bail if he can furnish substantial sureties.

## Are the sureties substantial or not?

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The state submitted that they were insufficient to meet the terms of the bond. It was contended for the respondent that Members of Parliament could be in debt and could also lose the next election of 2026 and disappear from Kampala making them unable to ensure the accused turns up for trial.

In consolidated criminal applications 5, 6, 7, 10, 12, 13, & 14 OF 30 **2025,** I stated thus on substantiality of sureties.

"What is important about sureties is that they must have influence over the accused/applicant to compel him/her to come to court or to report

about his/her where about at any given time. The surety should also be able to inform court in case the accused is planning to flee so that steps are taken to cancel bail before the accused flees.

The monitoring process need not be what the respondent asked for. That the surety must live a short distance from the accused. With respect, an accused on bail is not a prisoner of the surety. All that is required is for the surety to have the means to monitor the accused on bail and influence his/her court attendance or even report any default.

*Technology has grown and improved communication to the extent that* a surety does not have to see the accused with naked eyes in order to $10$ monitor his/her movements. The migration from analogue to digital platforms has rendered physical policing of a person irrelevant and outdated. Technology has collapsed distances. The world is a global *village*"

Members of Parliament are some of the highest paid public servants and highly privileged in this country. The court takes judicial notice of this. It would be unreasonable and speculative to suggest that MPs are broke and cannot raise money to meet the terms of the bond. Money to meet the bond need not be idle in the bank account. A surety must have the potential to marshal resources to meet the terms of the bond. MPs are politically exposed persons who can find creditors to service their financial obligations.

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Further, the charges attract ten and fifteen years respectively on counts four and eleven respectively. These are serious charges. But they are bailable provided sufficient safeguards are put in place. Otherwise prisons would be full of remand prisoners just because the state wishes them there.

Equity dictates that where some persons on the same charges have already been granted bail, then it follows that the accused should not be discriminated when he applies unless he does not have sufficient securities and sureties or if exceptional factors suggest otherwise.

Kusiima Deborah, Paul Nkalubo and Nayebare Bettina with whom the accused is jointly charged and are on bail and have not jumped

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it yet. Consequently, I am inclined to release the accused/applicant on bail on the following terms: -

- He will deposit a land title for plot 23122 Busiro block $(i)$ 273 Unit 465 land at Kyadondo Wakiso. - He will pay a cash bail of 25 million $(ii)$ - (iii) He will deposit his passport in court. - He is prevented from going to office except with $(i)$ permission of PS/ST - (iv) Each of his three sureties will execute a bond of 300 million not cash. - He will report to the Registrar of this court once every $(\mathbf{v})$ month starting 3rd April 2025. - If he fails he will stay on remand and report to the Chief $(vi)$ Magistrate on dates set by the lower court.

Gidudu Lawrence

**JUDGE**

$17TH$ MARCH 2025.

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