[2023] UGHC 213

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA CRIMINAL MISC. APPLICATION NO. 001 OF 2023 (ARISING FROM CRIMINAL CASE NO. AA-0033 OF 2015) SAMANYA HASSAN :::::::::::::::::::::::::::::::::: **VERSUS**

## UGANDA ::::::::::::::::::::::::::::::::::: **BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI**

#### **RULING**

The applicant filed this application for bail under Article 23(6) of the Constitution of the Republic of Uganda, 1995 and Sections 14 of the Trial on Indictments Act. The application which is supported by three affidavits from the applicant, his mother and paternal uncle, raised grounds which are summarized as follows: -

- 1) The applicant was arrested on 8^th September 2015 and was charged with the offence of murder c/s 188 and 189 of the Penal Code Act. - 2) The applicant is a peasant farmer and at the time of his arrest was the sole bread winner of his family with nine children for whom he provides for their livelihood and in the circumstances, are greatly affected by his incarceration. - 3) The applicant is a resident of Bugonda village, Namwendwa Sub-county, Kamuli District which is within the jurisdiction of this Honorable Court and as such he meets the requirement of having a fixed place of abode within the jurisdiction of the Court.

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- 4) The applicant has two substantial sureties who undertake to ensure the applicant's compliance with the bail conditions if this application is granted. - 5) The applicant has no previous criminal conviction and since investigations have been concluded, there is no likelihood of the applicant interfering with the prosecutions' witnesses. - 6) The applicant pledged to abide by all conditions that the Court may impose and to ensure that he attends Court whenever required. - 7) It is in the interest of justice that Court grants this application.

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## **Applicant's Submissions**

At the hearing Counsel Ritah Maloba who represented the applicant briefly recounted the contents of the application before presenting two sureties as follows:-

- 1) KYABWE TEOPHILISTA, a peasant farmer aged 70, the applicant's mother, a resident of Buwenge Mpya Zone, Kasoigo Ward, Northern Division Buganbula County in Kamuli District. - 2) KIGENYI SUUDI aged 45, the applicant's paternal uncle, a resident of Busikwe Zone, Bugonda Parish, Namwendwa Sub-county Kamuli District. A farmer with a farm at Bugondha near his home.

Counsel for the applicant further stated that the applicant was committed for trial on 6^th April 2016 and has been on remand for seven years without his case being cause-listed for trial. She argued that the applicant's sureties are close relatives and reside in the same village as him, have influence over him and are best placed to compel him to attend Court.

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### **Respondent's Submissions**

Ms. Pamela Orogot for the Respondent objected to the application. She argued that the applicant has not proved any exceptional circumstances to warrant the grant of bail as provided for under Rule 12 of the Constitution (Bail Guidelines for Courts of

- Judicature) (Practice) Directions, 2022. She further argued that the applicant does $\mathsf{S}$ not fall within the category of care giver since he did not prove the existence of nine biological children as alleged. Ms. Orogot also objected to the sureties on grounds that it will be difficult for police to arrest the first surety owing to her advanced age and that the second surety presented an LC I introduction letter which was not in the - language of court. She prayed that the LC letter be translated into English. In her 10 final submission, she prayed that Court considers the gravity of the offence of murder but conceded that if bail is to be granted, stringent conditions should be imposed.

#### Applicant's Submissions in Rejoinder 15

In rejoinder, Counsel for the applicant relied on the case of Foundation for Human Rights Initiative Vs Attorney General Constitutional Appeal No. 03 of 2009 to argue that Section 15(1) of the TIA which provides for the requirement for exceptional circumstances was outlawed because it contravened the constitutional right to apply for bail. She further contended that the applicant was a responsible person in the community since he had been the area's LC 1 Chairperson. With regard to the mother being of advanced age, Counsel for the applicant contended that this fact would compel the applicant to attend Court in fear of his mother being arrested if he absconds from court. On the issue of the gravity of the offence, she argued that that is not a ground for denial of bail under the Constitution of Uganda and that Court should take into account the fact that the accused person enjoys the presumption of innocence until proven guilty. That to hold an accused person in custody without bail would be a violation of his right to liberty. She cited the case of Obote David

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vs Odora Yasoni MA No. 50/ 2022 for the position that the right to liberty should not be curtailed lightly, wantonly or even worse arbitrarily. In conclusion, she prayed that the applicant be granted bail with lenient conditions.

#### **Decision of Court** 5

It is true as submitted by Counsel for the applicant, that the right to bail is guaranteed under Article $23(6)(a)$ of the Constitution. That right is founded on the principle that a person is presumed innocent until proven guilty by a competent court or, until such person voluntarily pleads guilty to the charge. See Nalongo Nazziwa Josephine vs

- Uganda Supreme Court Criminal Appeal No. 035 of 2014. This position is 10 clarified by Section 14 of the TIA which provides that this Court may at any stage in the proceedings release the accused person on bail, on taking from him or her a recognizance 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. However, paragraph 5(d) & (e) of 15 - the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions 2022 enjoins this Court to exercise the discretion to grant bail on such terms and conditions as the court considers reasonable, taking into account the need to balance the rights of the applicant and the interests of justice. The primary concern of this Court is if the applicant will return to court to answer the charge if released on bail. 20 As such, the substantiality, competence and reliability of the sureties goes to the root of an application for bail as they are charged with the duty of ensuring that the

applicant fully complies with bail conditions set by Court.

In the instant case, the applicant presented two sureties before this Court namely Kyabwe Teophilista and Kigenyi Suudi. At the hearing of this application, Counsel for the Respondent raised an objection to the second surety based on the fact that his LC I introduction letter was not drafted in English which is the language of Court. Counsel for the applicant sought and was granted leave by this Honourable Court to

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file the translation of the said letter on that same day, 7^th June 2023. However, the said letter has never been filed on court record. This means that the second surety lacks a proper introduction letter upon which this Court can rely to assess the substantiality and competence of this surety. The absence of a proper LC I introduction letter on Court record renders the second surety unreliable and unsuitable as court cannot ascertain his current physical address for purposes of holding him accountable for ensuring that the applicant complies with bail conditions. As a result, the Court hereby grants bail conditionally to the applicant on the following grounds;

- 10 - 1. The accused shall execute a cash bail deposit of $1,000,000/$ = (One Million Shillings only) - 2. Each of the sureties shall execute a noncash bail of $5,000,000/$ = (Five Million Shillings) - 3. The accused should present a translation of the introduction letter from the LC1 Chairperson for his second surety, Mr. Kigenyi Suudi for the approval of this Honourable court before his release on bail. - 4. The accused shall report to the Local Area (L. C. I) Chairman of Nyiize Village, Kangulumira Sub- County, Kayunga District on a weekly basis and shall appear before the Deputy Registrar of the High Court at the end of every month for bail extension with evidence of reporting to the Local Area Chairperson.

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I so order.

FARIDAH SHAMILAH BUKIRWA NTAMBI 25 JUDGE 04/08/2023

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