Waiswa and Another v Uganda (Criminal Miscellaneous Application 66 of 2022) [2023] UGHCCRD 126 (4 August 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT JINJA

## CRIMINAL MISC. APPLICATION NO. 066 OF 2022

#### 1. WAISWA SULAIMAN

**2. PALMER GERALD ::::::::::::::::::::::::::::::::::::** $\mathsf{S}$

### **VERSUS**

# UGANDA ::::::::::::::::::::::::::::::::::: **BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI**

#### **RULING**

The applicants filed this application for bail under Article 23(6)(a) of the Constitution of the Republic of Uganda, 1995 as amended, Section 14 of the Trial on Indictments Act Cap 23, Rules 2 & 4 of the Judicature (Criminal Procedure) (Applications) Rules SI 38-8 and Paragraph 6 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions 2022. The application was supported by the applicant's affidavit and raised several grounds which are summarized as follows: -

- 1) The applicants have a constitutional right, subject to the Court's discretion, to 20 be released on bail pending the hearing and determination of the charges of the offence of rape preferred against them. - 2) The applicants have permanent places of abode at Namaziba Cell, Mwiri Ward, Kakira Town Council in Jinja District within the jurisdiction of this Honorable Court.

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- 3) The applicants have substantial sureties and pledge to honor all the bail terms that this Honorable Court shall set. - 4) The applicants are care givers and sole bread winners of their respective families and since their confinement, their families have been left destitute. - 5) The applicants have no past criminal record, have never jumped bail and they are ready to strictly comply with the bail terms that this Honorable Court may impose.

### **Applicants' Submissions**

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Counsel Kevin Amujong appeared for the applicants and presented their sureties as 10 follows:

#### For Waiswa Sulaiman;

- 1) NANDHEGO MUKULUTHUM, aged 47, the applicant's mother, a tailor in Iganga Municipality and a resident of Kayaga Cell, Buligo Ward, Central Division in Iganga Municipality. - 2) WAIBI SAIDI, aged 45, a maternal uncle to the applicant, a businessman at Plot 60 Main Street Jinja as well as working with the Electoral Commission in Luuka District, and a resident of Allidina Village, Plot 60 Main Street East in Jinja Southern Division, Jinja City. - 3) NALUMANSI MARIAM KAFUKO, aged 48, the father of the applicant, a builder and a resident of Allidina Village, Plot 60 Main Street East in Jinja Southern Division, Jinja City.

#### For Palmer Gerald; 25

1) WALUJJO PETER, aged 64, the applicant's father, a builder and a resident of Namaziba Cell, Mwiri Ward, Kakira Town Council in Jinja District.

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- 2) WALUJJO RUTH, aged 54, the applicant's mother, a teacher by profession at Arise Foundation at Wanyange and a resident of Namaziba Cell, Mwiri Ward, Kakira Town Council in Jinja District. - 3) WALUJJO IVAN, aged 35, the applicant's elder brother, a builder and a resident of Namaziba Cell, Mwiri Ward, Kakira Town Council in Jinja District.

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Counsel Kevin briefly restated the contents of the application and the supporting affidavits and specifically emphasized the fact that the applicants have fixed places of abode at Namaziba Cell, Mwiri Ward, Kakira Town Council in Jinja District as reflected in their introduction letters from the Chairperson LC I. She argued that the said applicants are sole breadwinners of their families, have presented substantial sureties, have no criminal record and do not intend to jump bail. She cited Article $23(6)(a)$ of the Constitution and Section 14 of the TIA for the position that an accused person may be granted bail on taking from him a recognizance consisting of a bond with or without sureties, reasonable in the circumstances. In regard to the objection by the state in her affidavit in reply based on exceptional circumstances, Counsel Kevin argued that this is not mandatory and should be left to the discretion of Court as stated in Foundation for Human Rights Initiative vs Attorney General Appeal No. 03 of 2009 at page 8-10. She further cited Dr. Kizza Besigye vs Uganda MA. No. 228 of 2005 for the position that such discretion should be

exercised judiciously, keeping in mind that the accused should return to Court for trial. Counsel invited Court, while looking at the gravity of the offence, to consider the fact that the first applicant was kept in police custody for more than 48 hours while the second applicant was kept for more than 10 days, in violation of Article 25 23(4) of the Constitution which provides for the 48-hour time-limit within which an accused person should be kept in custody. She cited Uganda vs Robert Ssekabira

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**HCCC No. 005 of 2010** where the proceedings were declared a nullity on grounds that the accused had been kept in custody for more than 48 hours. She added that since September 2022, there had been no hearing. Therefore, she prayed that the accused persons be released on bail pending their trial.

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#### **Respondent's Submissions**

The State objected to the application and denied all the contents of the applicants' affidavits in support of their application except for paragraphs 1 and 3. Regarding Waiswa Suleiman, Counsel for the State indicated that he had not presented his National ID. She further argued that none of the applicants proved exceptional circumstances and that neither did any of them provide proof of marriage or children to support their alleged care-giving responsibilities. Finally, she prayed that while Court considers this application, it should also consider the gravity of the offence.

#### **Applicants' Submissions in Rejoinder** 15

Regarding the lack of the National ID by the 1st applicant, Counsel argued that the rationale of the applicant's National ID is to confirm that the person is a Ugandan and that he will report back to Court for the hearing and as such the Birth Notification Record from NIRA attached to the application showed that the 1st applicant applied for a National ID and awaits to receive the same.

In respect of exceptional circumstances, Counsel reiterated Section 14 of the TIA and the position of the Supreme Court that bail can be granted even in the absence of exceptional circumstances such as antecedents of the applicant and that the guiding factor is that the applicant can come back to Court for trial. Counsel further cited Paragraph 13 of the Constitution (Bail Guidelines for Courts of Judicature) Practice Directions, 2022 which provides for other considerations such as the

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applicants having a fixed place of abode within the jurisdiction of Court and the substantiality of the sureties they present. On the issue of marriage and children, she argued that no evidence to the contrary had been adduced by the state. She finally prayed that the applicants be granted bail.

**Decision of Court**

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The right to apply for bail is a fundamental right guaranteed under Article 23(6) of the Constitution of the Republic of Uganda, 1995 as amended and Section 14 and 15 of the TIA. It is trite that a bail applicant must not be deprived of his or her freedom unreasonably or as a punishment where they have neither pleaded guilty nor been 10 proved guilty before a competent court of law. The main purpose of bail therefore, is to uphold one's right to personal liberty, premised on the presumption of innocence stipulated under Article 28 (3) of the Constitution. See Nalongo Nazziwa Josephine vs Uganda Supreme Court Criminal Appeal No. 035 of 2014. The purpose of bail is to ensure that the applicant appears to stand trial, without the necessity of being 15 detained in custody during the period of trial. See Col. (Rtd) Dr. Kizza Besigye Vs. Uganda Criminal Application No. 83/2016. It is important therefore that the applicant confirms his fixed place of abode and presents sound sureties who will ensure his attendance in court and who can be called upon in the event that he absconds.

In all instances, the power to grant or refuse bail is at the discretion of Court. In this respect, Article 23(6)(a) of the Constitution, Section 14(1) of the Trial on Indictments Act Cap 23 and Paragraph 5(d) & (e) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions 2022 enjoin this Court to exercise its discretion to grant bail on such terms and conditions as the court considers reasonable.

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The primary concern of Court is whether the applicant will return to court to answer the charge if released on bail. This is determined considering two main aspects. Specifically, Section 15(4) of the TIA provides the factors to be taken into account while considering whether or not the applicant will abscond once granted bail.

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First is whether the applicant himself has a fixed place of abode within the jurisdiction of Court.

This Court takes cognizance of the importance of the requirement for the accused to have a fixed place of abode within the jurisdiction of Court before bail can be 10 granted. This place of abode must be certain, for only then can the applicant be traced if he/ she absconds. This is normally proved through confirmation from the area Chairperson LC I. In this case, the applicants presented introduction letters from the Chairperson LC I indicating that they are both residents of Namaziba Cell, Mwiri Ward, Kakira Town Council in Jinja District. These introduction letters were never 15 contested by the Respondent.

On the issue of the 1st applicant lacking a National ID, in my opinion, whereas the national identity card contains an address which is assumed to have been the address of that person at the time of the national registration which took place way back in early 2015, Court cannot be certain that the same address is still maintained to ensure that the applicant resides within the jurisdiction of this Court or, in close proximity of the sureties so as to ensure his attendance to Court for his trial. In this respect, I am persuaded by the decision of the Honorable Lady Justice Eva K. Luswata in the case of Lumala David vs Uganda Misc. Application No. 037 of 2016 wherein she found more merit with ascertaining a fixed place of abode from the LC I introduction letter rather than the national identity card. Whereas the national identity card is

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suitable for identification purposes, in this case the $1st$ applicant's identity is not in issue but rather his fixed place of abode, which as I noted earlier, is confirmed by the area LC I Chairperson. For that reason, I find the introduction letters from the LC I Chairperson sufficient enough to prove the residential addresses of the applicants for purposes of enforcement of compliance to the stipulated conditions if released on bail.

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The second consideration is whether the applicants have sound sureties within the jurisdiction of Court to undertake that the accused shall comply with the conditions of their bail. In the instant case, the 1st applicant presented three sureties, his 10 biological mother Ms. Nandhego Mukuluthum, his maternal uncle Mr. Waibi Said and his aunt Ms. Nalumansi Mariam Kafuko. All the three sureties were examined by Court and found to understand their responsibilities and obligations to this Court and the repercussions if the applicant absconds from trial. The said sureties are close

- relatives of the 1st applicant and have furnished Court with their national identity 15 cards and introduction letters from the LC I Chairperson confirming their residence. This Court is of the opinion that the sureties are substantial enough and are in position to compel the 1st applicant to adhere to the bail conditions set for his release. - In regard to the $2nd$ applicant, he presented three sureties as well including his father 20 Mr. Peter Walujjo, his mother Ms. Ruth Walujjo and his elder brother Mr. Ivan Walujjo. All the three sureties are his close relatives. They were also examined and found to understand their responsibilities and obligations to this Court. The said sureties furnished Court with their national identity cards and introduction letters from the LC I Chairperson confirming their residence within the same district as the 25 $2nd$ applicant. This Court is of the opinion that the $2nd$ applicant's sureties are also

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substantial enough and wield the necessary authority to compel him to adhere to the bail conditions set for his release.

Having judiciously weighed all the factors in this application, I am inclined to release the applicants on bail under the following conditions:

- 1) Cash bail of Uganda Shillings 2,000.000 only for each applicant. - 2) Non cash bail against each one of their sureties to the tune of Uganda Shillings $4,000,000$ only. - 3) The applicants shall report to the Deputy Registrar of this Court on the second - 10

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Tuesday of each month with effect from 12th September 2023.

Any contravention of the above terms will result into automatic cancellation of the bail granted.

I so order.

**FARIDAH SHAMILAH BUKIRWA NTAMBI JUDGE** 04/08/2023