[2024] UGHC 543

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO **CRIMINAL MISCELLANEOUS APPLICATION NO. 25 OF 2023** (ARISING FROM MUKONO CRIMINAL CASE NO. AA. 10 OF 2022)

INJA PATRICK ::::::::::::::::::::::::::::::::::::

## **VERSUS**

**RESPONDENT** UGANDA !!!!!!!!!!!!!

## BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

## **RULING**

1. This was an application for bail pending trial brought by Notice of Motion under Articles 23 $(6)$ (a) and 28 $(1)$ of the Constitution of the Republic of Uganda, 1995, and Rule 2 of the Criminal Procedure (Applications) Rules. The grounds of the application are briefly contained in the Notice of Motion and amplified by the Applicant's supporting affidavit and supplementary affidavit dated 3^rd February, 2023 and 13^th March, 2024, respectively. The grounds are as follows that:

(a) the Applicant is a bearer of National Identification Number (NIN) CM03072106X3FF;

(b) the Applicant was arrested in January, 2022 and charged with aggravated robbery c/s 285 and 286 (2) of the Penal Code Act, Cap. 120 before the Magistrates Court at Mukono and detained at Kitalya Mini Max Prison;

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- (c) the Applicant was consequently committed to be tried by the High Court of Uganda but his case has never been fixed for trial and he is languishing in prison; - (d) the Applicant has been held on remand without trial for aggregate period exceeding one hundred eighty days (180), which is a violation of his constitutional right, explained to him by his lawyers from M/s Bagyenda & Co. Advocates; - (e) due to the long period spent on remand, the Applicant's inalienable right to a fair and expeditious trial has been infringed upon and he has thus been made to suffer an injustice by being denied a normal livelihood; - (f) the Applicant suffers from hernia and due to the prison conditions and the coldness, his medical condition has worsened: - (g) at the prison the Applicant is only given pain killers which only reduce the pain but don't treat the underlying condition and so the Applicant is in need of specialized medical treatment which cannot be adequately provided by the medical personnel in Luzira prison; - (h) if granted bail, the Applicant will ensure that he appears in court to answer to the criminal charges against him and will pray that the matter is fixed for hearing and expeditiously disposed of in order to allow him return to a normal livelihood;

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- (i) the Applicant undertakes to abide by all the conditions that may be imposed on him upon being granted bail by this honourable court: - (i) the Applicant has a fixed a place of abode at Takajjunge Village, Namubiru Parish, Nama Sub-County in Mukono District:

(k) the Applicant will not abscond when granted bail;

- (I) the Applicant has availed this court with three sureties who shall ensure that the Applicant does not abscond; and - $(m)$ the Applicant has a constitutional right to bail. - 2. The Respondent opposed the application through an affidavit in reply deponed by Ms. Ayebazibwe Christine, a State Attorney in the Office of the Director of Public Prosecutions dated 31^st January, 2024. The grounds of contention are that: - (a) the Applicant is charged with aggravated robbery which is a grave offence; - (b) the Applicant has not attached any evidence from a medical officer of the prison where he is detained proving that they are incapable of giving him adequate medical treatment of the hernia while he is in custody as he alleges in paragraph 10 of his affidavit; and

- (c) the Applicant has not furnished proof that he has a permanent place of abode at Takajjunge Village, Namubiru Parish, Nama Sub-County, Mukono District as he states in paragraph 13 of his affidavit and that he may abscond if granted bail. - 3. During the hearing of this application, the Applicant was represented by Counsel Bagyenda Ivan from M/s Bagyenda & Co. Advocates. The Respondent was represented by Counsel Kubokwe Kennedy, a State Attorney from the Office of Director of Public Prosecutions. Both parties filed their written submissions and the Applicant's counsel orally submitted in rejoinder. The submissions are considered hereunder. - 4. The Applicant's counsel contended that the Applicant's being on remand without trial violates his right to freedom since he is still presumed to be innocent until proved guilty. Counsel cited the case of Col Rtd. Dr. Kizza Besigye v. Uganda Criminal Application No. 83 of 2016, with regards to the principle of protection of personal liberty. Counsel submitted that in granting bail, the Applicant has to fulfil the conditions for the grant of bail which the Applicant herein has met. That the Applicant has a fixed place of abode within the jurisdiction of this honourable court and that to prove that, he has provided a copy of an introduction letter of the L. C.1 chairperson where he resides with his parents. It is on that note that the Applicant guarantees this honourable court that when granted bail he shall not abscond.

- 5. That the Applicant has sound and substantial sureties capable of guaraneeing that he complies with the conditions of his bail and that he is willing to abide with all other conditions set by court. Counsel presened three sureties. They are: - (a) Ms. Buwala Night aged 35 years old as per to her national identity card, the Applicant's biological mother, a housewife, resident of Takajjunge Village, Namubiru Parish, Nama Sub-County, Mukono District, with mobile telephone No. 0709 577287: - (b) Ms. Nakintu Florence aged 75 years old, a friend and neighbor to the Applicant, a farmer, resident of Takajjunge Village, Namubiru Parish, Nama Sub-County, Mukono District, with mobile telephone No. 0782 532629; and - (c) Mr. Yinia Maliki aged 51 years old, the Applicant's biological father, a farmer, resident of Takajjunge Village, Namubiru Parish, Nama Sub-County, Mukono District, with mobile telephone No. 0774 487217 and 0704 407458. - 6. The Applicant's counsel added that the above mentioned persons are right thinking members of society and persons of integrity who have respectively availed L. C.1 introduction letters and national identity cards. The Applicant's counsel submitted that the Applicant will always appear at the appointed time and prayed that he be granted bail. - 7. On the other hand, it was argued for the Respondent that the onus of establishing any of the factors for grant of bail to the satisfaction of court squarely lies on the Applicant and that obligation is discharged

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by presenting credible evidence of high value as observed in the case of Aganyira Albert v. Uganda Criminal Miscellaneous Application No. 0071 of 2013. The Respondent's counsel submitted that the Applicant stands charged with the offence of aggravated robbery c/s 285 and 286 (2) of the Penal Code Act, Cap.120 as amended, whose maximum punishment is the death sentence and that if granted bail he may abscond. That this offence has become rampant in the society and granting bail to the Applicant would not be a good example to the would-be-offenders.

- 8. It was further submitted for the Respondent that the Applicant has not furnished proof that he suffers from hernia and that due to the prison conditions and the coldness his medical condition has worsened. That more so, the Applicant stated in paragraph 10 of his supporting affidavit that he is in need of specialized medical treatment which cannot be adequately provided at Luzira prison but he has not attached proof to his affidavit confirming the above mentioned allegations. That this honourable court cannot just rely on his mere allegations without proof to grant bail to the accused person. - 9. Furthermore, the Respondent's counsel argued that the Applicant never attached proof from the medical officer of the prison where he is detained as being incapable of adequate medical treatment while he is in custody. Further, that the Applicant has not furnished proof that he has a permanent place of abode at Takajjunge Village, Namubiru Parish, Nama Sub-County in Mukono District and that he may abscond if granted bail.

- Besides, the Respondent's counsel asserted that the Applicant $10.$ has not furnished court with a copy of his national identity card as required under Paragraph 12 (a) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, Legal Notice No. 8 of 2022. That the $3^rd$ surety has also not presented his national identity card and that court cannot base on a photocopy to confirm his true identity. - Furthermore, counsel averred that the 1^st and 2^nd sureties are all $11.$ female who may not compel the accused person to attend court if granted bail. The Respondent prayed that though this court has discretionary powers, it should not grant the application but should instead fix the criminal case for hearing during the nearest convenient High Court criminal session. Counsel prayed in the alternative that if this court is inclined to grant the Applicant bail, stringent terms should be given. - In rejoinder, the Applicant's counsel orally argued that the $12.$ Applicant is presumed innocent until proved guilty or until he pleads quilty and that it is his constitutional right to apply for bail. - That the $3^rd$ surety presented his voter's card and a photocopy of 13. his national identity card which has a NIN which is visible as CM73102100XN6D. That the Respondent's counsel sounded discriminatory and that the sureties' duty is not to use physical hands to bring the accused to court. That the 1^st surety is the Applicant's

$\overline{7}$ mother and the 2^nd surety is a neighbour. That being female does not incapacitate them.

About the identity card of the Applicant, the Applicant's counsel $14.$ submitted in rejoinder that he has attached a NIRA letter dated 19^th February, 2024 on the supplementary affidavit. That his NIN is CM03072106X3FF and that he was born on 30^th June, 2003. Counsel prayed that court finds the sureties substantial and grants the Applicant bail.

## Issue: Whether the Applicant is entitled to be granted bail.

## **Court's consideration**

The constitutional right to bail is provided for under Article 23 of $15$ the Constitution of the Republic of Uganda, 1995. Section 14 (1) of the Trial on Indictments Act, Cap. 23, vests this court with wide discretion to grant bail to an accused person at any stage of the proceedings, subject to consideration of factors for grant of bail. The section provides thus:

> "The High Court may at any stage of the proceedings release, the accused person on bail, that is to say, on taking from him or her a recognizance such an amount as is reasonable in the circumstances of the case, to appear before the court on such a date and on such a time as is named in the bond."

In the case of Dr. Aggrey Kiyingi v. Uganda, High Court 16. Miscellaneous Criminal Application No. 41 of 2005, Justice C. A. Okello held at page 4 of the ruling that:

> "As can be seen from the wording of the article, the right that an accused has under it, is the right to apply to court for bail but the discretion to grant or to reject the application is that of the court"

The purpose of grant of bail by court is to uphold the $17.$ constitutional right of the accused person while ensuring that he or she attends court to stand his or her trial whenever summoned. The court must consider various factors in deciding whether to grant or refuse to grant bail. Paragraph 13 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, Legal Notice No. 8 of 2022, provides as follows:

> "The court shall consider the following in handling a bail application—

(a) the gravity of the offence;

(b) the nature of the offence;

(c) the antecedents of the applicant so far as they are known;

(d) the possibility of a substantial delay of the trial;

(e) the applicant's age, physical and mental condition;

(f) the likelihood of the applicant to attend court;

(g) the stage of the proceedings;

(h) the likelihood of the applicant to commit an offence while on bail:

(i) the likelihood of the applicant interfering with witnesses;

(j) the safety of the applicant, the community and complainants;

(k) whether the applicant has a fixed place of abode within Uganda or whether he or she is ordinarily resident outside Uganda:

(I) whether the applicant has sufficient sureties within Uganda to undertake that the applicant shall comply with the conditions of his or her bail:

(m) whether the applicant has, on a previous occasion when released on bail, failed to comply with his or her bail terms;

(n) whether there are any other charges pending against the applicant: or

(o) whether the offence for which the applicant is charged involved violence."

Paragraph 12 of the Constitution (Bail Guidelines for Courts of $18$ Judicature) (Practice) Directions, 2022 provides thus:

> "An application for bail shall contain the particulars of the applicant, accompanied by—

> (a) a copy of the applicant's national identity card, or passport or aliens identification card, or employment card, or student identity card:

> (b) an introduction letter from the Local Council 1 chairperson of the area where the applicant resides;

> (c) where applicable, asylum seeker or refugee registration documents issued by the Office of the Prime Minister; and (d) expounded grounds for the application."


- The word "shall" is construed as mandatory. So the requirements 19. in paragraph 12 must be complied with by the bail applicant before court grants bail. It is mandatory that at least one of the identification documents must be attached to an application for bail. - The Applicant in the instant application has not attached a copy 20. of his national identity card or any of its alternative under paragraph 12 (a) of the Bail Guidelines. But he instead attached to his supplemanetary affidavit a copy of a confirmation letter from NIRA showing that the person named INJA PATRICK ERIYA with date of birth 30^th June, 2003, is the bearer of National Identification Number (NIN) CM03072106X3FF. There is no explanation by either the Applicant or his counsel as to why a copy of the Applicant's national identity card was not attached to his application as required by law or why its original was not presented before this court during the hearing of the application. - Furthermore, the Applicant in this application is INJA PATRICK $21.$ who is different from INJA PATRICK ERIYA named in the attached confirmation letter from NIRA. There is also no statutory declaration or affidavit attached to the application verifying the two names as belonging to the same person who is the Applicant herein. Therefore, this court is doubtful that Inja Patrick and Inja Patrick Eriya are names belonging to the same person who is the Applicant in this case. The NIRA verification letter has no photograph for court to discern and determine whether it is the Applicant being referred to.

- Consequently, the Applicant has not complied with paragraph 22. 12 (a) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 which requires the application to be accompanied by either a copy of the Applicant's national identity card, passport or aliens identification card, employment card or student identity card. - The Applicant herein further averred under paragraphs 8, 9 and $23.$ 10 of his supporting affidavit that he suffers from hernia and that due to the prison conditions and the coldness, his medical condition has worsened. The Applicant stated that he is only given pain killers which only reduce the pain but don't treat the underlying condition and that he is in need of specialized medical treatment which cannot be adequately provided by the medical personnel in Luzira prison. - I am aware of the decision of the Constitutional Court in the case $24.$ of Foundation for Human Rights Initiatives v. Attorney General, Constitutional Reference No. 20 of 2005, that proof of exceptional circumstances is not mandatory. However, it is vital to note that where an applicant alleges and relies on any exceptional circumstance as one of the grounds for his release on bail, it has to be specifically proved to the satisfaction of the court. - In Rajiv Kumar Sabharwal v. Uganda (DPP), Supreme Court 25. Miscellaneous Application No. 0001 of 2023, Justice Prof. Lillian Tibatemwa-Ekirikubinza emphasized the need for a bail applicant to

prove exceptional circumstances where the same are cited as grounds for release on bail. She held at pages 15 to 16 of her ruling as follows:

"I am alive to the fact that where a person applying for bail pending trial (and thus presumed innocent), cites ill health as a ground to be released on bail, section 15 (3) of the Trial on Indictment Act is to the effect that, for grave illness to be considered as an exceptional circumstance, it must be certified by a medical officer of the prison where the accused is detained that the facility is incapable of giving adequate medical treatment to the accused while in custody."

- In the instant case, the Applicant has not attached to his $26.$ application a medical report from the medical officer of the prison facility certifying that the prison facility where he is detained is incapable of giving adequate medical treatment to him while in prison. This is a requirement under paragraph 14 (2) (a) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022. Consequently, the Applicant has not convinced this court that his health condition tantamounts to an exceptional circumstance upon which this court can base a decision to grant him bail. - Therefore, without considering other factors for release on bail $27.$ like substantiality of the sureties, I find no merits in this application and hereby dismiss it. Each party shall bear their own costs of this application. I so rule and order accordingly.

This ruling is delivered this .................................... .... $2024$ by


**JUDGE.**

In the presence of:

- (1) Counsel Bagyenda Ivan from M/s Bagyenda & Co. Advocates, for the Applicant; - (2) Counsel Kubokwe Kennedy from the Office of Director of Public Prosecutions, for the Respondent; - (3) Mr. Inja Patrick, the Applicant; - (4) Ms. Pauline Nakavuma, the Court Clerk.