[2023] UGHCCRD 75

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CRIMINAL DIVISION)

## CRIMINAL MISC. APPLICATION NO. 268 OF 2022

(Arising from Session Case No. 08 of 2021)

#### NTANANGA CHARLES APPLICANT $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots$

#### **VERSUS**

**UGANDA**

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# **BEFORE: HON. MR. JUSTICE MICHAEL ELUBU RULING**

This application is commenced under Articles 23 (6) (b) of the Constitution of the Republic of Uganda; Sections 14 (1), 15 (1), (2), (3) and (4) of the Trial on Indictments Act Cap 23; Guidelines 9 and 10 (1) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions 2022).

The Applicant, Ntananga Charles, seeks orders that the Applicant be released on bail pending trial.

This application is premised on grounds set out in the Notice of Motion and elaborated in the three attached affidavits deposed by the Applicant, one Kibuule Bernadette Ntananga and one Ntananga Jemima Anna Maria.

In his affidavit the applicant affirms that he is aged 50 years and was arrested on the 21^st of October 2020. He was charged with the offence of Rape C/s 123 and 124 of the **Penal Code Act** and has been in detention since the 23^rd of October 2020.

That the allegations of rape were made by his sister who suspected the Applicant had committed the offence but did not actually witness any crime.

That Applicant has produced two substantial sureties who will ensure he attends Court as required.

That he will not interfere with any of the prosecution witnesses. He will not abscond and has a fixed permanent place of abode in Kizungu Zone, Makindye Division, Kampala District.

That he is HIV positive, as a result the feeding in detention is not favourable to his wellbeing.

That the applicant believes there will be a substantial delay in hearing of his case as it has not been fixed for hearing to date. That he has been informed by his lawyers that he can be released on bail as he has been on remand for more than 120 days.

Kibuule Bernadette Ntananga's swore the second affidavit and stated that she is the complainant and an aunt of the supposed victim Ntananga Jemima Anna Maria. That out of suspicion she reported a case of rape against the applicant on the 21^st of October 2020.

That she now withdraws the case of rape and any other allegations she made against the applicant and has written an additional statement to that effect. A copy of the statement is attached to her affidavit. That when she found Ntananga Jemima Anna Maria on her father's bed, she assumed she had been raped by the accused.

That she reported the case to Katwe Police station out of suspicion that a rape was committed but she did not witness the offence. That she assumed victim did not state that she was raped by the alleged accused.

That as a family they now wish to reconcile with the applicant since they believe he did not actually rape Ntananga Jemima Anna Maria even after his long detention of over 2 years now.

The third affidavit in support is that of **Ntananga Jemima Anna Maria** the alleged victim.

She swore that she was 21 years of age and added that at around 7:30 pm on the 21^st of October 2020, she was at the house of the applicant where she has gone to collect his dirty clothes for washing. Her aunt, Kibuule Bernadette Ntananga, knocked and opened the door. She asked Jemima what she was doing there and Jemima informed her that she had gone to collect the accused person's dirty clothes for washing.

That she also informed her aunt Kibuule that she had a sexual relationship with the applicant. That on hearing that, Jemima's aunt quickly assumed that she had been raped by the accused and reported the matter to Katwe Police Station.

That she was forced by her aunt to state that the accused raped her but it is not the true because she consented to the sexual intercourse.

That as a family, they now wish to try to reconcile with the accused.

The state opposes this application. In an affidavit deposed by **Joanita Tumwikirize**, a State Attorney from the office of the Director of Public Prosecutions, it is stated that the prosecution is ready to adduce all the required evidence during trial.

That the Applicant claims that the feeding in prison is detrimental to his HIV status but has not produced evidence from any medical expert demonstrating the validity of his claim.

That as the Court is now handling daily hearings, the possibility of substantial delay in hearing the Applicant's case is a mere speculation.

That there is a high possibility of the applicant interfering with the principal witness who is his daughter. The offence carries a maximum penalty of death meaning there is a high possibility that the Applicant will abscond and thus frustrate the trial.

#### **Submissions**

The parties filed written submissions which are on record and will not be reproduced here. Nevertheless, I have studied them and will refer to them in determination of this application.

### **Determination**

The assessment of an application for bail is driven by the unique circumstances of each individual case.

Bail is defined in the 5^th Edition of the **Oxford Law Dictionary** as release by the Court of a person held in legal custody while awaiting trial.

According to Section 14 of The Trial on Indictments Act, the person takes a recognisance to appear in Court at such date and time as he is required to do so.

It is now settled that the court is clothed with the discretion whether or not to grant bail. It was held in Constitutional Ref No. 20 of 2005, Uganda vs Col (Rtd) Dr Kiiza **Besigye** that under Article 23 (6) (a) the Constitution an accused person is entitled to apply for bail.

It is pertinent that the application can be made at any stage of the trial. S. 14 of the Trial on Indictments Act stipulates that The High Court may at any stage in the proceedings release the accused person on bail. Evidently reading that section with Art 23 (6) (a) of **the Constitution**, which establishes the applicants fundamental right to apply for bail, then it is clear that an applicant has a right to apply and be considered for a grant of bail at whatever stage proceedings may be, and that includes before or after committal (see Hon Sam Kuteesa & Ors vs A-G Const Ref 56 of 2011).

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As stated above, the Court has the Discretion whether to grant bail but that power must always be exercised judicially.

Judicial discretion is exercised by Court when it considers all that is before it and reaches a decision without taking into account any reason that is not a legal one. The Court acts within the rules of reason, justice and law, within the limits and the objects intended by a particular legislation. (See: R vs Board of Education [1990] 2 KB 165).

In this instant case the victim has sworn an affidavit on behalf of the applicant denying that she was ever raped. The complainant has affirmed another affidavit stating that she has no interest in pursuing the case against the accused. She also attached an additional statement, as a complainant, informing the police and the ODPP that she wishes to withdraw the matter.

This court notes that the Respondent has not rebutted the assertions made in those two affidavits. The principal for this kind of situation was stated in the case of Massa vs Achen [1978] H. C. B. 197 that where certain facts are sworn to in an affidavit, the burden to deny them is on the other party, and if he does not they are presumed to have been accepted.

Once the assertions that the accusation of rape was untrue, and that the complainant wished to withdraw charges were made, it was incumbent on the respondent to rebut the claims. In the absence of any such refutation, this court concludes that the assertions are correct.

In light of the above, it appears that the key witnesses have lost interest in the prosecution of this matter and both the victim and the complainant are unlikely to cooperate with the prosecution.

That notwithstanding, the court should also evaluate the other merits of this application including whether the applicant will abscond if released on bail.

The applicant has adduced evidence that he has a fixed place of abode in Kizungu Village Urban Council found in Makindye division of the Kampala Capital City Authority. He also has also produced two sureties: Eugene Ntananga John and Florence Ntananga Sebbaale. His brother and sister respectively.

I have considered all the circumstances in this case. I have carefully weighed the public interest against the rights of the applicant. Bearing in mind the presumption of innocence, the charges preferred are grave in nature.

It would however be unjust to keep the applicant in detention in such a case where, as stated, the key witnesses, who are members of the same nuclear family, have unequivocally stated a wish to withdraw the matter.

In the result, the applicant shall be granted bail on the following terms,

- a) He is bonded in the sum of $2,000,000/-$ (two million shillings) cash. - b) Each surety is bonded in the sum of 5,000,000/- (Five million shillings) **not** cash. - c) The applicant shall report to the Registrar of this Court every first Monday of the month. - d) He shall not leave the jurisdiction of this court without prior notification to the Registrar, Criminal Division of the High Court.

**Michael Elubu**

Judge

17.7.2023