[2020] UGSC 62

### IN THE REPUBLIC OF UGANDA

# AT THE SUPREME COURT OF UGANDA AT KAMPALA MISC. APPLICATION NO. 18 OF 2019

#### **BETWEEN**

#### JOHN MUHANGUZI KASHAKA:::::::::::::::::::::::::::::::::

#### AND

#### UGANDA::::::::::::::::::::::::::::::::::: 15

[An application for bail pending appeal arising from Criminal Appeal No.75 of 2019 which arose from the decision of the Court of Appeal at Kampala (Musoke, Obura and Madrama, JJA) dated 2^nd December, 2019 in Criminal Appeal Nos. 723, 734, 735 & 742 of 2014 which in 20 turn arose from Criminal case No. 47 of 2012 of the High Court at *Anti-Corruption Division.*]

#### Representation: 25

At the hearing, the applicant was represented by Mr. Simon Peter Kinobe while Ms. Harriet Angom, Acting Principal State Attorney represented the respondent.

#### BEFORE: HON. JUSTICE PROF. LILLIAN TIBATEMWA-30 EKIRIKUBINZA, JSC.

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#### **RULING**

This application was brought by Notice of Motion under **Rule 6 (2)** (a), 42 & 43 of the Supreme Court Rules and Section 40 (2) of the Criminal Procedure Code Act, Cap 116. The applicant John Mulanguzi Kashaka seeks to be released on bail pending the hearing and determination of his appeal in Criminal Appeal No.75 of 2019.

The grounds upon which the motion is premised are that:

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- a) The applicant has filed Criminal Appeal No.75 of 2019. - b) The appeal has formidable grounds and a high likelihood of success. - c) The offences with which the applicant was charged and convicted do not involve personal violence. - d) The offence with which the applicant was charged and convicted is bailable by this honourable Court. - e) The applicant was previously granted bail and he honoured all the conditions including attendance of court. - f) The applicant has sound and substantial sureties willing to undertake that he complies with the conditions of bail if released on bail. - g) The applicant will suffer injustice and irreparable damage if this application is not allowed as prayed. - h) The accused is a first time offender with no prior conviction. - i) There is a possibility of substantial delay in the determination of the appeal. - i) It is in the interest of justice that this honourable court exercises its discretion in favor of the applicant.

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The application is supported by the affidavit of the applicant sworn $5$ on 6^th December, 2019 reiterating and expounding the reasons for seeking for bail pending appeal.

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The respondent filed an affidavit in opposition sworn by Assistant Director of Public Prosecution, Josephine Namatovu on its behalf.

**Background:** 10

> The applicant - John Muhanguzi Kashaka - was the Permanent Secretary and head Procurement and Disposal Entity of the Ministry of Local Government.

In 2010, Government decided to provide every Local Council Chairperson at village and parish level in the country with a bicycle 15 to enable each Chairperson effectively carry out government programmes and activities. The Ministry of Local Government was tasked to oversee the procurement of the bicycles.

As the Permanent Secretary, the applicant-John Kashaka together with the contracts committee organized for the procurement of 20 70,000 bicycles. The Ministry awarded the procurement contract to a company called Amman Industrial Tools and Equipment Limited (AITEL) to supply the said bicycles. The contract was signed by the applicant as the Ministry's representative. Subsequently, an advance payment in the sum of USD 1,719,454.58 was made to 25 AITEL but the bicycles were never supplied. It turned out that it was a botched procurement process.

Consequently, the applicant was charged with the offence of causing financial loss of USD 1,719,454.58, C/S. 20 (1) of the Anti-Corruption Act, 2009. The High Court Judge sentenced John 30 Kashaka to 10 years and 10 days imprisonment, disqualified him from holding any public office for 10 years and ordered him to pay one-sixth of the lost sum as compensation.

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The applicant appealed to the Court of Appeal but was unsuccessful. He further lodged an appeal in this Court vide Criminal Appeal No. 75 of 2019 from which this application arises.

## Applicant's submissions

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Counsel reiterated the grounds in the applicant's Notice of Motion which I have reproduced earlier in this Ruling. He submitted that 10 the applicant has filed an appeal to this court and his appeal is not frivolous and has a likelihood of success. Furthermore, that the offence against the applicant is bailable and it does not involve personal violence. He is a first offender, aged 65 years, a sole breadwinner and has a fixed place of abode within the jurisdiction 15 of Court.

Counsel also submitted that there is a possibility of delay in the determination of the appeal given that Court is backlogged. He submitted further that most importantly the applicant was previously granted bail by the Court of Appeal and he fulfilled all the bail conditions which goes to the character of the applicant.

In addition, he submitted that the applicant has substantial sureties who stood as surety in the Court of Appeal and were willing to extend the same in this Court. Counsel introduced the following sureties to Court namely: Mr. Ben Kavuya, Dr. Amos Mukonge and Mr. Vincent Rubarema and asserted that they have the ability to compel the applicant to appear in court whenever required to do so.

Counsel also argued that the respondent would not suffer irreparable damage however if bail is not granted and the appeal succeeds, there will be irreparable damage on the part of the applicant. In support of his submissions generally, he relied on the

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# authorities of **Arvind Patel vs. Uganda¹**, David Chandi Jamwa vs. Uganda², and Lt. Col John Kaye vs. Attorney General³,

Counsel invited Court to grant the application as prayed.

### **Respondent's reply**

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On the other hand, the respondent's representative opposed the application. Counsel strongly argued that although the offence did not involve personal violence, it is still of a serious nature since colossal sums of money were lost. Counsel submitted that in respect to corruption offences, Court should deviate from the precedent of **Arvind Patel (supra)** which was a case involving personal violence. She argued that the law has since evolved and 15 there is now in place an Anti-corruption Act of 2009 yet Arvind **Patel** was passed in 2003.

She further submitted that there is no merit in the applicant's appeal and that the grounds the applicant seeks to rely on are the same grounds that the Court of Appeal dismissed.

She contended that if the applicant is granted bail he could easily abscond given that he is a convict in two courts and therefore the risk is higher.

On the issue of delay in hearing the intended appeal, counsel submitted that the assertion is speculative. She argued that instead 25 of granting him bail, the appeal should be expeditiously handled and disposed of.

Regarding the sureties, counsel had no problem with their substantiality but invited court to get something extra from them like land titles to show their commitment.

I soatem

^&lt;sup>1</sup> Miscellaneous application No. 1 of 2003.

^&lt;sup>2</sup> Miscellaneous application No.9 of 2018.

^&lt;sup>3</sup> Constitutional Application No.25 of 2012.

In conclusion, she prayed that the application be dismissed for lack $\mathsf{S}$ of merit and the appeal should instead be fixed for hearing.

### **Rejoinder**

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In rejoinder, Counsel Kinobe argued that colossal sums were involved in the **Jamwa case (supra)** but bail was granted to him. He prayed that this Court is persuaded by that authority to grant the applicant bail.

In terms of the appeal having no merit as submitted by counsel for the respondent, he submitted that this was speculative and invited court to disregard such a speculation.

- Regarding the issue of personal violence, counsel submitted that 15 Arvind Patel (supra) was a murder case and court found it necessary to put that criteria as a categorization in weighing different offences. He further submitted that corruption cases have earlier been on statutes even before the Anti-corruption Act, 2009. Court could have therefore thought otherwise by the time it decided - 20 Arvind Patel.

# Consideration of the application

I have considered the pleadings and submissions by both counsel together with the relevant laws. 25

Rule 6(2) (a) of the Rules of this Court provides for the grant of bail pending appeal to an applicant as follows:

"(2) ... the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may-

(a) in any criminal proceedings where a notice of appeal has been given in accordance with rules 56 and 57 of

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# these rules, order that the appellant be released on bail.....pending the determination of the appeal."

I note that the applicant has complied with the above rule and filed a Notice of Appeal in this Court as seen from annexure "A" of his application.

- Before I delve into the merits of this application, I must from the 10 onset emphasize that bail whether pending trial or pending appeal is granted at the discretion of court which discretion must be exercised judiciously with each case being determined on its own merit. - I must also emphasize that after conviction, the legal status of an 15 offender changes and the consideration for release has been held to hinge on whether there are exceptional and unusual circumstances warranting release pending appeal⁴. This is because the applicant is no longer wholly shielded by the presumption of innocence - espoused in **Article 28 (3)** of the **Constitution**. This distinction is 20 in fact pointed out in the David Chandi Jamwa vs. Uganda authority cited by the applicant in support of his application. Similarly, in **Chimambhai vs. R** (No.2)⁵ Harris J held that it is manifest that the case of an appellant under sentence of - imprisonment seeking bail lacks one of the strongest elements 25 normally available to an accused person seeking bail before trial namely that of presumption of innocence.

A presumption is rebutted by factual evidence. In the instant case the presumption of innocence has already been rebutted by the fact that two lower courts have convicted the appellant. Whereas **Article** 132 (2) of the Constitution provides for a right of appeal to the Supreme Court, from decisions of the Court of Appeal (albeit in accordance to prescribed law), this right cannot be said to re-clothe

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^&lt;sup>4</sup> Trevelyan J in Somo v Republic [1972] E. A. 476 - 481.

^&lt;sup>5</sup> [1971] 1 E. A 343.

an already convicted person with the presumption of innocence $5$ articulated under **Article 28 (3) (a).** On conviction any allegations against a person graduate into factual findings by a court of law thus rendering him outside the ambit of persons envisaged in Article 28 (3) (a). It is for this reason that a person applying for bail pending appeal must be subjected to a more stringent test than one 10

who is not yet convicted.

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It must necessarily follow that the principles which apply to applications for bail pending appeal are different from and certainly more stringent than those applicable to applications for bail pending trial.⁶

Bail pending appeal nevertheless recognises the possibility of the conviction being erroneous or the punishment being excessive.⁷ It is this recognition which is implicit in Article 132 (2) of the Constitution and Rule 6 (2) supra that creates the right of appeal in criminal cases even where two lower courts have already concluded

that the applicant is guilty of crime.⁸

The question I must however ask is: has the applicant in the instant case proved exceptional and unusual circumstances warranting release?

One can also comfortably say that in reaching its decision, the 25 court will be guided by one test for release: the interests of justice.

According to Arvind Patel vs. Uganda (supra), relied upon by the applicant, the general guiding principles for release on bail pending appeal are:

1. *The character of the applicant.* 30

⁶Sheridan J in Girdhar Dhanji Masrani vs. R [1960] 1 E. A. 320

⁷ Harris J [1971] 1 E. A. 343

⁸ Rule 6 (2) (a) of the Rules of this Court.

I we tennie 2. Whether the applicant is a first offender or not.

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- 3. Whether the offence with which the applicant was convicted involved personal violence. - 4. The appeal is not frivolous and has a reasonable possibility of success. - 5. The possibility of substantial delay in the determination of the appeal. - 6. Whether the applicant has complied with bail conditions granted before the applicant's conviction and during the *pendency of the appeal if any.* - The applicant's counsel also argued that at 65 years of age, the 15 applicant is of advanced age and that this fact should weigh in his favor.

I opine that although the applicant is of advanced age, a first time offender, of good character, a sole breadwinner of his family, and although he may have offered sureties of sound character, all such factors which go to the applicant's credit recede to the background when weighed with the seriousness of the offence and whether or not there is likelihood that the appeal would succeed. Indeed as stated by Trevelyan J (Supra), good character alone can never be enough because there is nothing exceptional or unusual in having good character.⁹ And in the persuasive authority of Dominia Karanja vs. Republic¹⁰ Kenya's Court of Appeal stated that previous good character of the applicant and the hardship if any facing his family are not exceptional and unusual factors.

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^&lt;sup>9</sup> Somo v Republic [1972] E. A. 476 -481.

^&lt;sup>10</sup> (1986) KLR 612

In my view the factors that the court must - above everything else - $\mathsf{S}$ be guided by are: the gravity of the offence and the likelihood of success of the appeal.

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Counsel for the appellant submitted that the fact that the offence did not involve personal violence should be considered as a factor favourable to the applicant in his prayer for release. In my 10 considered view, the gravity of the offence must not and cannot be exclusively defined in in terms of whether it involved violence or not. And it is obvious that by its very nature, the offence of causing financial loss cannot by the stretch of any one's mind involve violence. I am persuaded by the opinion of Trevelyan J (Supra), 15 that the distinction sought to be drawn between violent and nonviolent crimes is over emphasised. Indeed I "do not agree that a man who has been convicted of committing a serious financial crime is deserving of more favoured treatment than an ordinarily inoffensive man, who has been convicted because, having had a 20 mite too much drink, he knocked someone's tooth out". Thus in matters of causing financial loss to the government, the consideration should be the extent of loss to the tax payer and the country's implication for development potential the etc. Consequently the authority of Patel (supra) does not offer the court 25 a blue print for a decision on an application for bail pending appeal.

Counsel for the applicant also argued that there is a possibility of substantial delay in disposing of the appeal due to case backlog. The applicant did not support his assertion that the Supreme Court is back-logged with any cogent evidence. But even more important 30 is that I am of the view that "delay" in disposing of the appeal should be assessed in light of whether there is a real risk that the sentence or a considerable portion of it will have been served before the appeal is heard. I note that in this present case, the applicant was sentenced to 10 years and 10 days. It certainly will not have 35 expired by the time the appeal is heard. Furthermore, as stated by

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Trevelyan J (Supra) delay can only alone be an unusual or $5$ exceptional circumstance if it is unusual itself. In the present matter, there is no basis for speculating that the applicant's appeal will be subjected to an unusual delay.

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- Counsel for the applicant also argued that the appeal is not frivolous and has a reasonable possibility of success. I opine that 10 whenever an application for bail pending appeal is considered, it must never be forgotten that the presumption is that when the applicant was convicted, he was properly convicted. Nevertheless the likelihood of success of an appeal is perhaps the only ground which even when put forward singly can present as an exceptional 15 circumstance. In my view however, since court does not at this particular point in time delve deeply into the merits of the appeal, I would rather say that the question should be whether the appeal is prima facie arguable. - It was held in **Patel (supra)** that "the only means by which court can 20 assess the possibility of success of the appeal is by perusing the relevant record of proceedings, the judgment of the court from which the appeal has emanated and the Memorandum of Appeal in question." - It is expected that I must ask myself the following question: having 25 read the memorandum of appeal, the judgment of the Court of Appeal and the **relevant court record**, do I hold the impression that the appellant's appeal has a fair chance of being successful?

The applicant in the present matter attached to his application both the Notice of Appeal and a Memorandum of Appeal. He also 30 annexed the judgment in the Court of Appeal. However, the record of proceedings was not attached. A missing court record certainly disadvantages an applicant since the prospects of the appeal succeeding cannot exhaustively be evaluated. Nevertheless I proceeded to look at the grounds of appeal, while keenly aware that 35

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I am not sitting as an appellate court and cannot therefore delve $5$ into the merits of the appeal.

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The pending appeal is governed by **Section 5 of the Judicature Act** which is to the effect that a second appeal lies to this Court on a matter of law or mixed law and fact. And case law is to the effect

that "On second appeal, the Court ... is precluded from $10$ questioning the findings of fact of the trial court, provided that there was evidence to support those findings, though it may think it possible or even probable that it would not have itself come to the same conclusion."¹¹

On a second appeal the court is by implication being asked by the 15 appellant to interfere with the findings of the lower court on the basis that the **evidence** adduced did not pass the requisite standard of proof in a criminal case.

Grounds 1, 3 and 4 relate to matters of evidence, factual analysis and findings of fact. The grounds necessitate an interrogation of the 20 accused's conduct (fact) in performance of his duty juxtaposed with mens rea. In light of the above mentioned role of a second appellate court, and a quick perusal of the grounds of appeal contained in the Memorandum of Appeal, the need for the court proceedings becomes very clear. Without the record of proceedings I am unable 25 to determine whether on the face of it the COA failed to apply the **facts/evidence adduced** to the requisite ingredients and to the law.

Grounds 2 and 5 are exclusively based on interpretation of the law. The essence of Ground 5 is that in the opinion of the appellant, Section 92 of the PDDA Act which protects an individual from prosecution if they acted in good faith is still law. Ground 2 on the

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^&lt;sup>11</sup> E.g. Kifamunte Henry v Uganda Criminal Appeal No. 10 of 1997; Mulindwa James vs Uganda SCCA no. 23 of 2014.

s other hand deals with the ingredient of mens rea and whether proof of bad faith which is implicitly contained in Section 92 of the PPDA Act should be read into Section 20 of the Anti-Corruption Act.

Under Section 92, acting in "good faith" - an aspect of tt:e mens rea - saves the individual from prosecution. Under Section 2O, acting with the knowledge or belief that a particular act would cause financial loss denotes mens rea.

In my considered view, even without the importation of Section 92 of the PPDA Act into Section 20 of the Anti-corruption Act, which under Ground 2 the applicant alleges was wrong in law, the

- prosecution would only succeed in proving the offence of causing financial loss if evidence was adduced towards proof of mens rea. I therefore opine that on appeal, the Supreme Court would in arriving at the decision whether or not to uphold the applicant's conviction be guided by whether the evidence adduced proved beyond doubt 15 - that the appellant acted with men rea, rather than whether or not the Court of Appeal imported Section 92 of the PDDA Act into Section 20 of the Anti-Corruption Act. 20

I am thus not persuaded that on the face of it, the grounds rooted in the legal interpretation of the relevant law would in themselves without more, necessarily lead to success of the appeal.

As already stated, the presumption of innocence has already been rebutted by the fact that two lower courts have convicted the appellant. Conviction is followed by punishment. Restricting the applicant's freedom of movement is one of the terms of the

JD

/

punishment. Therefore, in order to grant freedom to such a person whose fundamental freedom has been lost by the conviction of two courts, there must exist some 'exceptional and unusual circumstances'. In other words, the case must be so exceptional and unusual that having regard to all the circumstances

surrounding it, the court will be justified in overlooking the order 10 for his imprisonment and make a counter order that he be released, at least until his appeal has been determined.

If it is expected that the threshold for 'exceptional and unusual circumstances' is high in regard to an application for bail pending appeal in a first appellate court, it must be that much higher on a 15 second appeal. I opine that release pending a second appeal should be the exception rather than the norm.

I must also specifically point out that even before conviction -Uganda's law calls upon courts to exercise a high degree of caution while considering grant of bail to a person awaiting trial on a charge 20 of causing financial loss. Consequently, although **Section 14 of the** Trial on Indictment Act provides that the High Court may at any **stage** in its proceedings release an accused person on bail, under Section 15 of the Trial on Indictment Act, the law sets a higher standard for bail pending trial on a charge of causing financial loss 25 - the applicant must prove to the satisfaction of the court that **exceptional circumstances** exist to justify their release on bail. We can therefore deduce that where the application is for bail pending appeal, extra caution is required of a judge.

Resulting from the above discussion of the grounds on which the 30 application is based, I decline to grant the application.

What is called for in the interest of justice, is that the Court fixes the hearing of the appeal.

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The Registrar is hereby instructed to cause list this appeal in the next convenient Criminal Session.

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/

Dated at Kampala this ayo 2020.

\

i

/

.-Vl

PROF. LILLIAN TIBATEMWA. EKIRIKUBINZA JUSTICE OF THE SUPREME COURT.

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