[2025] UGHCICD 9

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### INTERNATIONAL CRIMES DIVISION

#### HCT-00-CM-0019-2025

#### **(ARISING FROM HCT-00-ICD-0003-2018)**

UGANDA ...................................

#### **VERSUS**

**BALYEJUSA BRUHAN**

KALYANGO ALIAS MASIGA ....................................

#### **BEFORE:**

HON. LADY JUSTICE DR. WINIFRED NABISINDE

HON. LADY JUSTICE SUSAN OKALANY

HON. JUSTICE RICHARD WEJULI WABWIRE

HON. JUSTICE DR. ANDREW BASHAIJA (ALTERNATE)

### **RULING**

#### **INTRODUCTION**

This is an application brought under Article 139(1) of the Constitution of the Republic of Uganda 1995, as amended, and Section 14(1) and 37 of the **Judicature** Act, Cap 16, along with Rule 2 of the Judicature (Criminal Procedure) (Applications) Rules SI 13-8, for orders that the criminal proceedings against the


recelled

Respondent at the High Court (International Crimes Division) in criminal case ^IICl'-00-lCD-SC-0003-2018 should proceed in the absence of the Respondent.

'Ihis Court directed the Prosecution to submit their Application and submissions by 11'h June 2025, the defence to reply by 25'h June 2025, and if there is any rejoinder, it should be made within three days of the defence's filing, with the ruling to be dclivercd online on 10'hJuly 2025. llowcvet, only the Prosccution filed their submissions on 18'h June 2025.

'fhe Respondcnt's advocates have not submitted any affidavit in rcply to the Application or its submissions. 'I'l-re Respondent is joindy charged with seven others on one count of Terrorism contrary to Section 7(l)(a) and 2(b) oJ the Anti-Tenorism Act, 2002, as amcnded, and an alternative count of Murder contrary to Sectiors 188 and 189 of tbe Penal Codz Aa. Additionally, there are two counts of IUurder, one count of Algravated Robbery contrary ro Secliotts 285 and 286(2) of tbe Penal Cofu Arl, and one count of Bclonging or Professing to belong to a tcrrorist organisation, contrary to ,fection I 1 (1)(a) and \'ection 3 of the Anti-Terroism Act, 2002. This Application is based on the grounds that while the Rcspondent was produced in Court and later granted bail on 6'h August 2019 pending the hearing of his case, he absconded, and criminal summonses were issued and served upon him at his known places of residcnce for attendance at his trial, but to no avail.

'Ihis honourable Court also issucd criminal summons against the Respondent on 26th March 2025, which was published in New Vision newspaper and announced on Sanyu FM and Capital IrM radios on 16th April 2025. I lowever, neither the Respondent nor his sureties appeared in Court.'l'hat the Respondcnt's actions are intended to frustrate thc completion of the case and Furthet, that the Respondent has behavcd in a manner that makes the continuation of SC-0003/2018 in his presence impractical since he cannot be traced.


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## RI'PRTiSI]NTATION

Thc Applicant 'i/as rcprescntcd by Assistant DPP Mr Lino Anguzu and Senior State Attorney Ms. Marion Ben-Bella, while Mr Calcb Alaka and Mr Evans Ochieng represcntcd the Rcspondcnt on thc state brief.

### SUBMISSIONS

It was submitted on behalf of the Applicant that the Rcspondent, having deliberately jumped bail, thereby waived his right to bc present at his trial. It was argued that it was therefore just, fair, equitable, and in the interest of justice for his trial to proceed in his absencc. Relying on Section 37 oJ the Jadicature Act, Cap 16, it uias further submitted that the Court, in exercising its jurisdiction, has the power to grant remedies either absolutely or on such terms and conditions as it deems just. These remcdies are available to any paty to a cause or matter in respect o[ any legal or equitable claim propcrly brought before it, with the aim that, as far as possiblc, all issues in controversy betwecn the parties arc fuliy and finally resolved.

The Applicant therefore petitioned that the Court grants the remedy of proceeding with thc criminal trial against the Respondent in his absence, as his jumping bail had caused an impassc in the hcaring of the matter, thercby delaf ing justice for his co-accused and victims.

Counsel for the Applicant cited various case law auth()rities, including the case of R a. Hayntard [2001J , V/I-R 125, where the (]ourt noted the considerations that should be taken into account in relation to the trial ofa defendant, including;

- i. the narure and circumstanccs of the defendant's behaviour in absenting himself from thc trial or disrupting it, as the case maybe and in particular, whether his behaviour was deliberate, voluntary and as such plainly wa-ivcd his right to eppear - ii. the seriousness of the offence, which affects the defendant, victim and public


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- iii. the general public interest of the victims and witncsses that a trial should take place within a reasonable time of eve nts to which it relates - iv. the effect of delay on thc mcmories of thc witnesses, and - v. where therc is more than one defendant and not all have absconded, the undesirability of separate trials and prospects of a fatr trial for the defendants who are present.

Counsel also relied on the case of Uganda u. Hon, Herbcrt Kabafunryki LICC No. 7 of 2017, where the accused jumped bail and the Court granted the state's application for trial in the accuscd's absencc, as it would be against public policy to allow the frustration of Court proccedings by the accused person who had choscn to abscond and thcrefore waived his right to bc tricd in his presencc. In Uganda u, Gulindnta Paul and Tumusiime HCI'-00-AC-CNI-0005-2015, the Court held that a defendant of full age and sound mind who is adcquately notified of his trial and chooses to abscnt himself violates his obligation to attcnd Court. 'fhis act deprives him of the right to be ptesent, and when a criminal trial proceeds in his absence, he cannot claim that his constitutional rights have becn dcnied. .fhe cffect of a trial extends beyond the accused to include thc complainants, victims, and the public. Therefore, if an accuscd person skips bail, he obstructs the fairness of the trial, which is against the interests o[ all other partics. In Regina u. Jones 0 972J I V/LR 887, it was obscrvcd that if the Court has no discrction to commence trial against thc defendant in his absence, it faces a difficult dilemma. Either the entire trial must bc postponed until thc absent dcfendant is aPprchended, which could cause significant distress to witnesses and victims, or the trial must proceed against the defendants.rzho are present, excluding the defendant who has absconded. While this might unflairly favour that defendant, a system of criminal justicc should not be susceptible to such manipulation.

Relf ing on thc affidavit supporting the motion sworn by D/IP Brvirc Stephen, in which he stated that the Respondent was not found at his last known places of rcsidence, had in fact, sold thc housc whcre hc rcsided, and had nevcr rcturncd, e-\* \4


counsel for the Applicant argued that the Respondent had used the grant of bail as an opportunity to evade answering the charges against him. That the respondent had waived his right to be present at his trial, and therefore, the trial should be conducted in his absencc. It was further submittcd that the offences for which the Respondent and his co-accused are indicted are scrious and gravc, carrying maximum penalties of death. One of the victims, AIGP Andrew Felix Kaweesi, was a high-profile figure, and his murder has gcnerated significant publ-ic interest and heightened expcctations regarding the outcome of the case.

It was further submitted that, since the offence was committed in 2016, it is appropriate to resolve the matter without unnecessary delay. A prolonged delay could jeopardise the successful prosecution of the case due to the uncertainq' sutrounding the continued availabiliry of witnesses and the reliability of their recollections over time. Counsel also argued that furthet delay would amount to ^a dcnial of justicc for the victims and infringc upon thc othcr accuscd persons' right to a swift and fair trial.

l-asdy, counscl for the Applicant argued that it is in thc interest of iustice and public policy that justicc is done and seen to bc done. I{e cmphasised that the justice system should not appear '",ulnerable to manipulation or abuse. He therefore petitioned that the Court issue an order for the Respondent to be tricd in absentia.

# COURT'S DETERMINATION

We have carefully examined this Application, the relevant laws and authorities cited by counscl, and the submissions madc by counscl for the Applicant.

'I'he issuc to be dctermined is whether the criminal proceedings in High Court Criminal Casc No. HCT-00-ICD-SC-0003-2018 can lawfully continue in the Respondent's absence.

The issue is a tenet of the right to a fir hearing as enshrined in Article 28(5) of tlte 1995 Constitution of the Republic of Uganda (as amcndzd), which provides:


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'Except with hh or her consent, tlte tial of an1 person thall nol take place in tlte absence of !bat herson an/ess lhe berson so rundzds hiuself or /tcrse/{ as lo render tlte rcnlinsance qf lhe Proceedings in the Pruence ri that ?erson itQracticabh and tlte Coart nakes an orderfor tbe person to be remoued and the tial to proceed in lbe absence oJ lhat person."

ln tlrc casc <tf Uganda u, Culindpa Paul Ci 'Iumusume 0It I. JGIIClICD ² AS citcd by the applicant's counscl, Wangutusi J. effectivcly addressed whether ^a criminal trial can proceed in the absence of an accused person, and we agree with his decision. He stated that a judicial officer has the discrction to continue with ^a trial cven i[ the accused is not prescnt. I{owever, this discretion must be excrcised with great caution, considering thc case in its context, in proceedings that aim soleli,to ensure a fair trial. Thc focus should not only bc on fairncss but also on protccting the interests of thc public. 'I'o decide whether a trial should proceed without the accused present, Wangutusi J. considered whcthcr thc accused was scrvcd, had the opportunity to instruct legal counsel, and was aware of the trial date and his obligation to attend.

In thc prcsent case, regard.ing whether the Respondent had the opporruniry to instruct lcgal counsel, he was represented by Counsel Turyamusiima Geoffrey on ^a state brief throughout the pre-ttial stage until 28'r' March 2025, when he withdrew from rcprcsenting him. After his withdrawal, the Court, in accorclancc with Article ²⁸0@ oJ tlte 199f Constitution, appointed Counsel Caleb Alaka and Ilvans Ochieng to rcpresent him on the state brief.

Rcgarding whether the Respondcnt was aware of the trial date and his obligation to attend, it is essential to notc that he was granted bail on 6'n August 2019 on condition that he appcat before the Registtar of the I{igh Court on the 19'h day of cach month (or the next working day) and attend court whcnever required to answer the charges for which he had been arrested, and to continue doing so until othcru/ise directed by the Court.


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Under the terms of his bail, the Respondent was clcarly aware of his obligation to attend court. According to the Applicant's affidavit in support, the Respondent was granted bail pending the hearing of his case thcreafter hc absconded after the pre-ttial stage. Criminal summonses were later issued and scrvcd at his known residences, but to no avail. On 26'\ March 2025, the Court issued further criminal summonses, which rverc published in the Nal, Vision ncwspaper and broadcast on Sanyr FM and Capital IiM radio stations on 16'h April 2025. Despite thcse efforts, neither the Respondent nor his sureties appeared in court. Had the Rcspondent complicd with thc bail condition requiring him to report on the 19'h day of every month, he, Iike his co-accused, would have been duly informed of the trial date.

In his affidavit supporting the motion, D/IP Bwire Stephen stated that upon receiving the criminal summons, he went t<; I-uzira Stage Six Zonc, Nakawa Division in Kampala District, whete the LC1 Chairpcrson told him that the Rcspondcnt and one of his suretics, Bwirc Samuel, had lived in thcir fathcr's house after the Respondent's release on bail but had since sold the property and m<>ved to unknown locations. I-Ie thcn visited Nabwcru South Zote 2 in Wakiso District, another known residence of the Respondent, whcre the landlady confirmed that the Respondent had never returncd to the house after his arrest. Dcspite these efforts, the Respondent failed to appear in Court and has not been apprchended to date.'lhcse facts clearly show that the Respondent absconded and jumped bail.

The question now arising is how to treat a case involving someone who has jumped bail.

We are persuaded by thc casc o[ R u. Abrahams (1985) 21 VI -R J4J rvhere it rvas opined that:

" lf an actued person Jaihd to Wedr al a tial and wat fomd, when the tial came on, to haue abvonded, he had clearly waiaed his ight to be present ad tbe Proseaiion might elect to go on uritb tbe tial in bis absence. In sub euenl, the J dge u,oald exercise bis


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disnetion abether to allow the tial to continae, paling Jtartic ar attention lo phether tlte D eJe n da n t w as rep re n n t e d."

In this case, since his previous counsel withdrew from representing him, the Court appointed other competent counsel for him on a state brief.

lTangutusi J. also persuades us in Gulindwa (supra), whcre he argucd that a fullaged and sound-minded defendant who is adequately notifled of his trial and chooses to be absent does so in violation of his obligation to attend court, thereby depriving himself of thc right to be prcsent.

'I'he absencc of an accuscd person during a trial is a deliberate and voluntary relinquishment of the right to be present. According to Wangutusi J.'s decision in Gulindwa (supra), discontinuing a case wherc an accuscd has skipped bail and voluntarily absconded from court would undermine public policy if courts were to halt proceedings due to voluntary absence. Wc agree with the learned Judge.

By the time of his disappearance, the Rcspondent had already exerciscd his right to hire a lawyer of his choice and was being represented by Mr Geoffrey Turyamusiima, who the Court at the next hearing date was noti\$ring. If his lawyer failed to inform him o[ the next hearing date, it was still the dury of the accuscd, according to his bail relcase terms, to report to Court evcry 19'r' day of the month, where he would have learnt o[ the next hearing date .

The Respondent's failure to appear in court as required by his bail conditions, leaving his known residenccs without trace, and the unavailabiliry of his known telephone contacts strongll, suggest that he has absconded. This act cffectively waives his right to be present and to be heard at his trial.

Given thc abovc circumstances, we find that the accused has behaved in a way that makes it impossible to continue the proceedings against him in his presence.

'I'he Respondent faces serious chargcs, including murder, aiding or abetdng terrcrism, and membership ot professing membcrship of a tcrrorlst organisation,


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with murder carrying the maximum penalty of death. It is in the public interest, as well as in the interests of the victims and witnesses, that his trial takes place within a reasonable time from the date of the alleged offences. The Respondent is jointly charged with seven co-accused individuals who have not absconded. Stopping the trial due to the Respondent's absence would unjustifiably infringe upon the right of his co-accused to a fair and prompt trial.

In light of the above, this application is granted, and it is ordered that the criminal proceedings against the Respondent in the High Court International Crimes Division in criminal case HCT-00-ICD-SC-0003-2018 shall proceed in his absence.

It is so ordered.

Delivered at Kampala this 10^th Day of July, 2025.

HON. LADY JUSTICE DR. WINIFRED NABISINDE, JUDGE (HEAD OF THE PANEL) HON. LADY JUSTICE SUSAN OKALANY, JUDGE $\sqrt{}$ HON. JUSTICE RICHARD WEJULI WABWIRE, JUDGE

HON. JUSTICE DR. ANDREW BASHAIJA, JUDGE (ALTERNATE)