[2025] UGHC 22

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBALE CRIMINAL APPLICATION NO. 072 OF 2024 (ARISING FROM CRIMINAL CASE NO. 1448 OF 2024) MBA-00-CR-AA-061/2024 (CRB 296 OF 2024)

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ARYAMPA JACKSON ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

**UGANDA :::::::::::::::::::::::::::::::::::**

# **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

#### **RULING**

# 1. Introduction

- 2. This application was brought by way of Notice of Motion under Articles 2(1), 23 (6) (a) & 28 (1) (3) (a) and 44 (c) of the Constitution of Uganda, 1995, section 14 (1) now 15(1) of the Trial on Indictment Act Cap 25, Rules 2 & 4 of the Judicature (Criminal Procedure) (Applications) Rules SI 13-8), Section 15 of the Human Rights (Enforcement) Act, 2019, Rule 3 of the Judicature (Fundamental and other Human Rights and freedoms (Enforcement Procedure) Rule 2019 SI 31-2019 for the sole prayer that- - (a) The Applicant be released on bail pending his trial, and any other orders deemed necessary by court. - 3. The grounds on which this application was premised are contained in the supporting affidavit deponed by the Applicant, but briefly are that - a. The Applicant is charged with the offence of aggravated defilement contrary to section 116 (4) (a) (b) (c) of the Penal Code Act, Cap. 128; - b. The Applicant has a constitutional right to apply and be considered for the grant of bail pending the hearing and disposal of criminal charges preferred against him; - c. The Applicant is on remand and that his trial may not be commenced soon; - d. The Applicant has substantive sureties and shall not abscond if released on bail: - e. The Applicant has a fixed place of abode within the jurisdiction of this Honourable court;

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- f. That the Applicant shall abide by all the bail terms imposed on him by this Honourable court; - g. It is in the interest of justice that the Applicant be granted bail. - 4. Prosecution opposed this application through an affidavit in reply deponed by **SARAH FAITH**, the learned State Attorney attached to the Office of the Resident State Attorney, Mbale, on grounds that - a. The Applicant is indicted with a serious offence of Aggravated Defilement contrary to Section 116 (4) (b) (c) of the Penal Code Act which attracts death sentence on conviction; - b. The investigations in the matter are still on going, and that there is a high likelihood of the Applicant interfering with the investigations; - c. It is not true that the Applicant has a fixed place of abode; - d. It is not true that Applicant has substantial sureties; - e. The Applicant has not advanced any exceptional circumstances to warrant grant of bail; - f. It is in the interest of justice that the application be dismissed and case be fixed for hearing since this court has a record of disposing off cases. - 5. The Applicant also filed an affidavit in rejoinder on $20/01/2025$ which has been considered in determination of this application.

# 6. Legal representation

- 7. The Learned State Attorney Patrick Obbo appeared for the Respondent while Mr. Ntuyo Shafik appeared for the Applicant. - 8. At the hearing of this application, both counsel made oral submissions which have been considered by court in the determination of this application. - 9. Analysis of court - 10. Article 28 (3) (a) of the Constitution of the Republic of Uganda, 1995 provides that-

"Every person who is charged with a criminal offence shall be presumed to be innocent until proven guilty or until that person has pleaded guilty."

11. Also Article 23 (6) (a) of the Constitution of the Republic of Uganda provides that-

"Where a person is arrested in respect of a criminal offence-

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*A person is entitled to apply to court to be released on bail and the* court may grant that person bail on such conditions as the court considers reasonable."

12. Section 15 (1) of the Trial on Indictment Act, Cap. 25 provides that-

"The High Court may at any stage in the proceedings release the accused person on bail, that is to say, on taking from him or her a recognisance consisting of a bond, with or without sureties, for such an amount as is reasonable in the circumstances of the case, to appear before the court on such a date and at such a time as is named in the bond."

13. Section 16 (1) of the Trial on Indictment Act provides that-

"Notwithstanding section 15, the court may refuse to grant bail to a person accused of an offence specified in subsection (2) if he or she does not prove to the satisfaction of the court-

(a) that exceptional circumstances exist justifying his or her release on bail; and

(b) that he or she will not abscond when released on bail."

14. Section 16 $(2)$ (a) of the Trial on Indictment Act provides that-

"An offence referred to in subsection (1) is-

an offence triable only by the High Court."

- 15. In the perspective of the above provisions of law, it is suggestive that grant of bail is at the discretion of court subject to court's satisfaction that the accused if granted bail will be able to attend court whenever the matter is called for hearing until its determination. - 16. I will now proceed to determine this application in the chronology of presentation of the grounds by the Applicant's counsel. - 17. Fixed place of abode - 18. This court was informed by the Applicant's counsel that the Applicant has a fixed place of abode at Bujoloto Cell, Bukoma ward, Northern Division, Mbale city. To that effect, the following documents were exhibited in court as proof of the Applicant's residence in the said area; - a) A copy of the Applicant's National Identity Card; - b) The Applicant's introduction letter from the Local council chairperson;

- c) Purchase Agreement dated $21/7/2007$ ; - d) A photo of the Applicant's home; and - $e$ ) Three other copies of land purchase Agreements. - 19. The Prosecution/ Respondent did not object or raise any concern about the facts relating to the Applicant having a fixed place of abode within the jurisdiction of this court. I, therefore find that the Applicant successfully established to the satisfaction of this court that he has a fixed place of abode within this court's jurisdiction.

#### 20. Sureties

21. The Applicant's counsel introduced three (3) sureties to support the Applicant's application, to wit; - Wetabire Patrick, Ongodia George and Mwebaze Kiconco Jane.

### 22. First surety: Wetabire Patrick

23. It was submitted that Wetabire Patrick is- Aged 44 years old, Resident of Kagwa Cell, Kireka ward, Nakoleke Town council, Northern Division, Mbale city, a teacher by profession, a former head teacher at St. Paul Secondary School in Nampanga, Mbale District, the surety's copies of the National Identity Card, appointment letter dated 5/2/2005, introduction letter of the surety and land purchase Agreement dated $13/12/2010$ were exhibited for consideration of court.

## 24. Second surety: Ongodia George

25. It was submitted that Ongodia George is- Aged 49 years old; Resident of Nansige Cell, Malare ward, Industrial Division, Mbale city; a teacher by profession, and the owner/Director of Joy Secondary School, a former head master of Mbale Secondary School and Mulatsi Secondary School where he was the supervisor of the Applicant; the surety's copies of the National Identity Card, appointment letter, introduction letter, and a certificate of title for the land comprised in FRV MBA15 Folio 25 Plot 541 Block 1 land at Bugema B, Mbale city were exhibited for consideration of court.

# 26. Third surety: Mwebaze Kiconco Jane

27. It was submitted that Mwebaze Kiconco Jane is- Aged 64 years old; Resident of Buyonjo Cell, Nkoma-North ward, Northern Division, Mbale city; She is the Applicant's cousin; A teacher by profession, a joint

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owner/Director of Mbale Tower Primary School; The surety's copies of the National Identity Card, introduction letter, and a certificate of title for the land comprised in LRV MBA27 Folio 22 Plot 3-4, Mutende close, Kisenyi Cell, Mbale Municipality were exhibited for consideration of court.

- 28. This court had an opportunity to inspect the original copies of all the sureties' said documents. - 29. On the issue regarding the Applicant's sureties, the learned State Attorney submitted that the first and second sureties are aged 44 and 49 years respectively which makes them younger than the Applicant who is 52 years. He further stressed that in absence of any other supportive facts, the age difference between the first two sureties and the Applicant raises suspicion about the capacity of the said sureties to compel the Applicant's attendance to court whenever he will be required to do so. - 30. It was also submitted that the first two sureties, to wit- Wetabire Patrick and Ongodia George are not biologically related to the Applicant. Counsel submitted that relationship is a very important factor to determine the substantiality of a surety. - 31. The attention of this court was drawn to the fact that the said sureties are only connected to the Applicant as workmates, but even in that capacity, it is not stressed who supervises the other in their line duty. - 32. On the third surety, the learned State Attorney submitted that at 64 years she is of advance age, making it hard for her to meet with the responsibilities of a surety. - 33. For the above propositions, the learned State Attorney cited Paragraph 15 (1) (a) & (b) of the Constitution (Bail Guidelines for the courts of judicature) (practice) Directions, 2022, and invited court to find that all the Applicant's sureties are not substantial. - 34. In rejoinder, counsel for the Applicant submitted that the third surety is older than the Applicant. He reiterated his prayers that court finds the presented sureties substantial. - 35. Paragraph 15 (1) (d) of the Constitution (Bail Guidelines for the courts of judicature) (practice) Directions, 2022 lays down the detailed factors for determining the suitability of a surety, It thus, provides that-

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"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 residence address of the surety;* - *c) character and antecedents of the surety;* - d) Relationship to the accused person; ......." - 36. The reflection from the supporting affidavit of the Applicant, and submissions of the parties is that the first two sureties presented by the Applicant for purposes of this bail application are younger than him in age. This court has guided in a number of previous bail application rulings that it is prudent and more appealing for a bail application Applicant to present sureties that are older than the Applicant in age. - 37. The rational behind this position is that, society lines have been set that people tend to have more respect to those that are older than them. In that perception, it would be easier for a surety that is older than the Applicant to compel the attendance of the accused person to attend court for trial, if released on bail. - 38. The other observable fact is that the first two sureties are not related to the Applicant. Instead they are presented as friends or workmates but the levels of their seniority to each other is not disclosed. - 39. The third surety who is described as the Applicants Cousin, is older than the accused in age and a resident of Mbale City as the Applicant, which in my view qualify her as a substantial surety, but being older, she needs someone else to do the supervisory work with her. - 40. It is pertinent to note that as required by the provisions of the law, before bail is granted, courts must be satisfied that the sureties presented are people whom the Applicant respects and can properly listen to. - 41. On the premise of the above two considerations, this court finds that the first two sureties presented by the Applicant do not pass the suitability test established under Paragraph 15 (1) (a) & (b) of the Constitution (Bail Guidelines for the courts of judicature) (practice) Directions, 2022.

#### 42. Exceptional circumstances

43. It was submitted for the Applicant that he is suffering from a grave illness of hypertension and diabetes, and that the same cannot be handled in

prison. A medical report dated $25/7/2024$ certified by a senior medical clinical officer of Mbale (male) prison Health III was exhibited in court in support of that view. Other medical documents were also exhibited in court showing the medical history of the Applicant.

- 44. Prosecution rebutted the allegation of the Applicant's sickness, and submitted that there was no proof of Applicant's alleged sickness since the medical document produced was not certified by a qualified medical officer under the law. Counsel cited S.15 of the Trial on indictment Act & Paragraph 14 (2) (a) of the Constitution (Bail Guidelines for the courts of judicature) (practice) Directions, 2022 to fortify his submissions. - 45. Section 16 (1) (a) read pari materia with Paragraph 14 (1) (a) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions provides that-

"The High Court may, in exceptional circumstances, grant bail to a person accused of committing any of the following offences*an offence triable only by the High Court.*"

46. Exceptional circumstance are also defined under Section 16 $(3)$ (a) of the Trial on Indictment Act read *pari materia* with Paragraph 14 (2) (a) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions that -

"Exceptional circumstances" means any of the following-

grave illness certified by a medical officer of the prison or other institution or place where the accused is detained <u>as</u> being incapable of adequate medical treatment while the *accused is in custody.*"

47. On perusal of the Trial on indictment Act, it is silent about the definition of a medical officer of the prison that is supposed to certify medical documents for that purpose of proving a grave illness. However, the definition of a medical officer in the context can be obtained from the Prisons Act Cap. 325 which under Section 2 provides that-

> "A medical officer means either the district director of health or a medical officer in the district or area in which the prison is situated, or in his or her absence, any registered or licensed Government

medical Practitioner or the medical officer appointed to a prison if a *medical officer* has not been appointed"

- 48. I would therefore disagree with the submissions of the learned State Attorney that a senior medical clinical officer is not a person qualified under the law to sign on the medical report of the accused. The law under the provisions highlighted in the foregoing state that grave illness shall be certified by a medical officer of the prison. The law doesn't provide for the title of that medical officer in medical terms. This therefore means that any medical officer appointed to work with prison where the accused/Applicant is detained can certify a medical document for purposes of proving grave illness, and a senior medical clinical officer can be one of them. - 49. It is however of concern, that the other medical documents which were produced by the Applicant contradict the recommendations of the senior medical clinical officer. I note that from the said medical forms exhibited in court marked "JI" – "J5", the Applicant's blood pressure was high before he was arrested, and kept going down during his stay in prison. - 50. This unexplained paradox in the medical documents of the Applicant leaves a lot to be desired. In the absence of the explanation on the inconsistencies in the Applicant's medical forms, I cannot be persuaded to take the line that the Applicant's illness is grave, and that it cannot be managed in prison. - 51. Secondly, hypertension and diabetes ordinarily considering the standard of prison hospitals in Uganda today, are conditions which can properly be managed therein, and for that reason, the two said conditions do not fall under grave illnesses defined by the law. - 52. Gravity of the offence - 53. The Respondent averred in the affidavit in reply that the Applicant is indicted with a serious offence of Aggravated Defilement contrary to Section 116 (4) (b) (c) of the Penal Code Act which attracts death sentence on conviction; - 54. I have had the opportunity to peruse through the summary of the offence and as properly submitted by the learned state attorney the accused was a headmaster of the school where the victim was studying from. This

makes him a person who was in authority over the victim which further aggravates the offence.

55. I am aware of the presumption of innocence enshrined under the Constitution, however, considering the circumstances of this case, I am inclined to side with the submission of the Respondent having the circumstances under which the offence was committed at the back of my mind.

# 56. Interference with the investigations

- 57. The learned State Attorney submitted that the Applicant is a person of influence in society and a politician who will most likely interfere with the investigations if granted bail. The attention of court was drawn to the Applicant's conduct before his arrest. That he intended to subvert justice by forcing mediation between him and the victim's parents. This is enough proof that the accused will interfere with the investigation when granted bail. - 58. In light of the above, I decline to grant this application and it is hereby dismissed.

I so order

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LUBEGA ROUO Ag. Judge

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