[2016] UGHCCRD 497

## THE REPUBLIC OF UGANDA

### IN THE HIGH CPOURT OF UGANDA AT KAMPALA

#### (CRIMINAL DIVISION)

# $HCT - 00 - CR - CM - 0015 - 20.16$ (ARISING OUT OF MISC. APPLICATION NO.38 OF 2016 (ARISING FROM MISC. CAUSE NO. 176 OF 2015)

#### AND

# IN THE MATTER OF GENERAL COURT MARTIAL CASES NOS. 002,003,004,005 &006 OF 2016

GEN DAVID SEJUSA::::::::::::::::::::::::::::::::::::

#### **VERSUS**

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

## **BEFORE: THE HON MR. JUSTICE MASALU MUSENE**

### **RULING**

**CERTIFIED TRUE** COPY OF THE ORIGINAL

DEPUTY REGISTRAR HIGH COURT

DATE

The applicant, General David Sejusa applied for bail under articles 2 (1), 23 (6) (a), article 28 (3) and S. 14 (1) of the Trial on Indictment Act.

The applicant was represented by Mr. Ladislous Rwakafuzi, David Mushabe, Keneth Munungu Mr. Kasirifu and Mr. Baale Musa. The state was not represented. The D. P. P wrote a letter to this court that they could not appear in view of article 120 (3) (b) of the constitution which provides;

"120 (3) The functions of the Director of Public Prosecutions are the following;

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(b) To institute criminal proceedings against any person or authority in any court with competent jurisdiction other than a court martial."

On the other hand, the registrar of the general court martial, major John Bizimana also wrote to court that following the ruling and orders of the high court civil division in Misc. Application No. 38 of 2016 (Justice Oguli Oumo), whereby she suspended hearing of criminal cases Nos, 002, 003, 004, 005 and 006 pending in the General Court Martial, then they would also wait. This court in the circumstances heard the application for bail ex parte. Secondly, the state had not filed any affidavit in reply.

Mr. Rwakafuzi for the applicant submitted basing on the notice of motion and the affidavit in support of the application by the applicant as follows:

- 1. That the applicant filed Misc. Cause No. 176 of 2015 pending before High Court (Civil Division) seeking to determine his status in UPDF. - 2. That the filing of Misc. Cause No. 176 of 2015 notwithstanding, the applicant charged with criminal UPDF/GCM/002, was cases UPDF/GCM/003, UPDF/GCM/004, UPDF/GCM/005 and UPDF/GCM/006 of 2016 in the General Court Martial and was remanded to Luzira upper prison. - 3. That the offences which the applicant is being charged with are bailabe. - 4. That the hearing of the said charges has been suspended by the High Court of Uganda until disposal of Misc. Cause No. 176 of 2015. - 5. That the applicant would never violate bail terms and or will not abscond from the jurisdiction of this honorable court when released on bail because he knew of the impending arrest and the prosecution before he returned from

United Kingdom and he knew of his imminent arrest three hours before his arrest, which knowledge he would have used to escape and or avoid arrest but he did not.

Mr. Rwakafuzi for the applicant further added that the applicant is of advanced age of 62 years and has a fixed place of abode in Naguru Kampala. Two sureties were presented, namely; The Lord Mayor of Kampala Capital City Authority, Ssalongo Erias Lukwago, and Dr. Deo Lukyamuzi of Bwebaja, Wakiso district.

Another counsel for the applicant Mr. Mushabe added that the applicant has family responsibilities with children studying at university and secondary schools, and the sole bread winner. He cited article 139 (1) of the Constitution which grants High Court unlimited original jurisdiction in all matters. Mr. Mushabe also referred to article 28 (3) (a) of the Constitution which provides for the presumption of innocence of an accused person and the basis for the bail application. He also quoted the case of Lt. Col. John Kaye V Attorney General, Constitutional Application No. 25 of 2012. The applicant in that case applied for bail pending determination of his substantive application No. 29 of 2012 and hearing of constitutional petition No. 24 of 2012. The applicant in that case, Lt. Col. Kaye was facing murder charges before the General Court Martial. His Lordships S. B. K. Kavuma, Justice of appeal (as he then was), granted Lt. Col. John Kaye bail basing on the presumption of innocence, advanced age of being over 50 years old and fundamental human rights and freedoms. The following passage from that case was emphasized:

"The applicant should not be denied of his or her freedom unreasonably and bail should not be refused merely as a punishment as this would conflict with the presumption of innocence. The court must consider

and give the applicant the full benefit of his/her constitutional rights and freedoms by exercising its discretion judicially. Bail should not be refused mechanically simply because the state wants such orders. The refusal to grant bail should not be based on mere allegations. The grounds must be substantiated."

Mr. Mushabe also added that the applicant is now a lodger at Luzira prison following the expiry of the remand warrant of General Court Martial on 31.3.2016. I have considered the submissions of the advocates for the applicant and the rather unique circumstances of this application as will be illustrated herein. The applicant was charged with five offences in the General Court Martial. They are not capital offences. He pleaded not guilty and applied for bail there which was rejected. Earlier on, he had filed an application, Misc. Application No. 176 of 2015 in the Civil Division of the High Court challenging his continued retention in the armed forces. On 14.3.2016, the applicant appeared before my sister, Lady Justice Margaret Oguli Oumo challenging his trial in the court martial and yet he had filed a similar case which is pending determination in the High Court. (Misc. Cause No. 176 of 2015). That court suspended the applicant's trial in the court martial court. There was an order that he applies for bail in the Criminal Division. The issues that arise before this court are;

- 1. There is an order that the applicant applies for bail in the criminal division, which order is a valid court order and has not been overturned. - 2. The applicant is facing criminal charges in the court martial which have been suspended by a High Court order. - 3. However, despite the suspension of the charges, the applicant is on remand and has been directed to apply for bail in the Criminal Division.

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- 4. This is a rather novel situation which has not arisen before and there is no known laid down procedure to deal with an application for bail where charges against the applicant have been suspended. - 5. The crucial question is therefore, does this court fold its hands and send back the applicant on remand in Luzira and yet the charges over which he was remanded have been suspended? - 6. And if court is to fold its hands, won't that make the order of the High Court by Judge Oguli Oumo redundant? - 7. And why should this court fold its hands and send back the applicant on remand yet article 139 (1) of the constitution along with S. 14 of the Judicature Act grant the high court unlimited original jurisdiction in all matters.

The issue of jurisdiction of High Court Vis a vis jurisdiction of tribunals like the General Court Martial court in this case, was considered by the Court of Appeal in Court of Appeal Civil Appeal No. 55 of 2003, M/S Rabo Enterprises (u) Ltd V Commissioner General URA (unreported). The Court of Appeal held that,

"The original jurisdiction of the high court can only be changed by amending the constitution."

In the present case therefore, even if there is no appeal or reference from the General Court Martial, this court cannot fold its hands and chase away the applicant from the temple of justice. I shall exercise this court's powers under article 139 (1) of the constitution and section 39 (2) of the Judicature Act to consider the bail application by the applicant. For avoidance of doubt, S. 39 of the Judicature Act provides:

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- 1. 39 (1) The jurisdiction vested in the High Court by the constitution, this act or any other enactment shall be exercised in accordance with the practice and procedure provided by this or any other enabetment or by such rules and orders of the court as may be made or existing under this act or any other enactment. - 2. 39 (2) where in any case no procedure is laid down for the High Court by any written law or by practice, the court may in its discretion adopt a procedure justifiable by the circumstances of the case.

Bearing in mind the law as outlined above and in further consideration of article 126 (2) (e) of the constitution which empowers this court to administer substantive justice without undue regard to technicalities, I find and hold that the circumstances of this application warrant meritious consideration. The offences with which the applicant is charged are bailable by this court since the proceedings in the General Court Martial have been suspended pending the disposal of Misc. Cause No. 176 of 2015.

I wish also to reiterate the ruling of the Constitutional Court in Constitutional Petition No. 46 of 2011 & Constitutional Reference No. 54 of 2011- Hon Sam Kutesa & Others V A. G with regard to the right to liberty. The court stated as follows;

"The genesis of the right to bail is the protection of the right to liberty. It is now axiomatic that the right to liberty is a universal human right and freedom which is inherent and not granted by the state. Article 20 |(2) of the Constitution enjoins all organs and agencies of Government and all persons to respect, uphold and promote fundamental rights and freedoms which also includes the right to bail."

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The applicant has presented substantial sureties who will no doubt ensure his return to court to stand trial. Furthermore, being a sole bread winner of his family and of advanced age of 62 years, I am obliged to grant bail to the applicant on the following conditions:

- 1. The applicant will be bound in his recognizance of UGX 10,000,000/ $=$ not cash. - 2. The two sureties are each to be bound in the sums of UGX 50,000,000/= also not cash. - 3. The applicant will be reporting to this court every fortnight till Miscellaneous Cause No. 176 of 2015 is heard and determined, starting on 15.4.2016.

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Dated at Kampala the 1^st day of April 2016

WMASALU MUSENE

**JUDGE**

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