[2025] UGHCICD 8

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA INTERNATIONAL CRIMES DIVISION HCT-00-CM-0014-2025 (ARISING FROM HCT-00-ICD-0002-2018)**

**UGANDA ………………………………………………………………. APPLICANT**

### **VERSUS**

#### **BALYEJUSA BRUHAN KALYANGO ALIAS MASIGA ….…………. RESPONDENT**

#### **BEFORE:**

# **HON. LADY JUSTICE SUSAN OKALANY HON. JUSTICE VINCENT WAGONA HON. JUSTICE ALICE KOMUHANGI KHAUKHA HON. JUSTICE BONIFACE WAMALA (ALTERNATE)**

#### **RULING BACKGROUND**

- [1] The respondent, together with seven others, is jointly indicted on two counts of murder contrary to *Sections 188* and *189* of the *Penal Code Act, Cap 120*; one count of aiding and abetting terrorism contrary to *Section 8* of the *Anti-Terrorism Act, 2002;* and another count of belonging or professing to belong to a terrorist organisation contrary to *Section 11(1)(a)* of the *Anti-Terrorism Act, 2002*. - [2] The applicant has submitted this application by Notice of Motion under *Article 139(1) of the Constitution of the Republic of Uganda 1995, as amended, Section 14(1) and 37 of the Judicature Act, Cap 16,* and *Rule 2 of the Judicature (Criminal Procedure) (Applications) Rules SI 13-8)*, seeking orders that the criminal proceedings against the respondent in the High Court (International Crimes Division) in criminal case HCT-00-ICD-SC-0002-2018 should proceed in the absence of the respondent. - [3] The background to this application is as follows: the trial of the respondent, from which this application originated, was scheduled for hearing on 31st March 2025. On that date, the respondent who had previously been granted bail by the pre-trial court was absent whereby, the applicant applied for criminal summons to be issued against the respondent and his sureties to attend court on 3rd April 2025. - [4] On 3rd April 2025, the applicant informed the court that the respondent had not been located; however, one of his sureties had been found and was in court. Upon examination of the surety, it was confirmed that he did not know the respondent's

whereabouts and could not produce him before the court. Having established that the surety understood his duties and that he could not forfeit the bail bond sum, the court sentenced him to six months' imprisonment. A warrant of arrest was issued against the respondent, and criminal summons were issued against his two other sureties to attend court on 28th April 2025.

- [5] On 28th April 2025, the applicant informed the court that the arrest warrant had not been executed because the Uganda Police had failed to locate the respondent. The applicant, therefore, requested an adjournment to file this application for the respondent's trial in his absence. - [6] The grounds supporting the application, as outlined in the Notice of Motion and the applicant's affidavit, are briefly summarised as follows: - 1. The respondent was jointly indicted with seven others on two counts of murder against Major Kiggundu Tamale Muhammad and his bodyguard, Sergeant Mukasa Stephen, aiding and abetting terrorism linked to a terrorist organisation, vide HCT-00-ICD-0002-2018. - 2. The respondent was granted bail on 6th August 2019, vide Miscellaneous Application HCT-00-ICD-CR-MISC-12-2018, pending the hearing of his case. - 3. The respondent absconded bail after his pre-trial hearing as he ceased to report to court. - 4. Criminal summons were extracted and served upon the respondent at his known place of abode at Luzira Stage Six Zone, Nakawa in Kampala District and Nabweru South Zone 2 in Wakiso District in vain. - 5. A warrant of arrest was issued against the respondent on 9th April 2025, published in New Vision Newspaper on 11th April 2025, and announced on Sanyu FM 88.2 and Capital FM 91.3 on 17th April 2025, but in vain. - 6. To date, the respondent and his sureties have neither been present in court nor been arrested. - 7. The respondent's failure to attend court proceedings in the criminal case HCT00-ICD-0002-2018 constitutes absconding, which is conduct deliberately intended to frustrate the trial. - 8. The respondent has conducted himself in a manner that makes it impossible to continue the criminal proceedings against him in case HCT-00-ICD-00022018, as he cannot be located. - 9. It is only fair and just that the court grants the application and the order sought herein.

[7] Counsel for the respondent did not file an affidavit in reply as he prayed to address the court only on matters of law.

#### **REPRESENTATION**

[8] Assistant DPP Mr. Lino Anguzu and Mr. Thomas Jatiko represented the applicant, while Mr. Caleb Alaka and Mr. Evans Ochieng represented the respondent on the state brief.

#### **SUBMISSIONS**

### *Arguments for the applicant*

- [9] It was submitted on behalf of the applicant that the respondent, having deliberately jumped bail, waived his right to be present at his trial. It was therefore just, fair, equitable, and in the interests of justice that his trial proceeds in his absence. Relying on *Section 37* of the *Judicature Act, Cap 16*, it was contended that the court, in exercising its jurisdiction, has the power to grant, either absolutely or subject to such terms and conditions as it deems just, all remedies to which any of the parties in a cause or matter is entitled in respect of any legal or equitable claim properly brought before it, so that, as far as possible, all matters in controversy between the parties are fully and finally determined. The applicant, therefore, prayed that the court allows the proceedings to continue with the criminal trial against the respondent in his absence, as his jumping bail had created an impasse in the hearing of the matter and caused delayed justice for his co-accused and victims. - [10]Counsel for the applicant cited various case law authorities, including the case of *R. v. Hayward* [2001] 3 WLR 125, in which the court noted the considerations that should be taken into account regarding the trial of a defendant. These include: a) the nature and circumstances of the defendant's behaviour in absenting himself from the prosecution or disrupting it, as the case may be, and in particular, whether his behaviour was deliberate, voluntary, and thus plainly waived his right to appear; b) the seriousness of the offence, which impacts the defendant, victim, and public; c) the general public interest of the victims and witnesses that a trial should occur within a reasonable period of the relevant events; d) the effect of delay on witnesses' memories; and e) where there is more than one defendant and not all have absconded, the undesirability of separate trials and the prospects of a fair trial for those who are present.

- [11]Counsel also relied on the cases of *Uganda v. Hon. Herbert Kabafunzaki HCC No. 7 of 2017,* where the accused jumped bail. The court granted the state's application for trial in the accused's absence, as it would be against public policy to permit the frustration of court proceedings by the accused person who had chosen to abscond and therefore waived his right to be tried in his presence; and *Uganda v. Gulindwa Paul and Tumusiime HCT-00-AC-CM-0005-2015*, where the court held that a defendant of full age and sound mind, who is adequately notified of his trial and chooses to absent himself as a result, violates his obligation to attend court, deprives himself of the right to be present, and when a criminal trial proceeds in his absence, he cannot claim that he has been denied his constitutional rights. - [12]The effect of a trial extends beyond the accused and includes the complainants, victims, and the public. Therefore, when an accused person skips bail, it hampers the fairness of the trial for everyone involved. (See: *Regina v. Jones [1972] 1 WLR 887*) If the court has no discretion to start the trial against the defendant in his absence, it faces a serious dilemma. It must either delay the entire trial until the absent defendant is apprehended, an event that might cause significant distress to witnesses and victims, or proceed with the trial against the defendants who are present and not the one who has absconded. This situation could give that defendant an unjustified advantage, but a criminal justice system should not be vulnerable to such manipulation. - [13]Relying on the affidavit supporting the motion sworn by D/IP Bwire Stephen, in which he stated that the respondent was not found at his last known places of residence and had, in fact, sold the house where he lived and never returned, counsel for the applicant argued that the respondent had used the grant of bail as an opportunity to avoid answering the charges against him. In summary, by his conduct, the respondent had waived his right to be present at his trial, and therefore, the trial should proceed in his absence. - [14]It was also submitted that the offences with which the respondent and his coaccused are indicted are serious and grave, carrying maximum penalties of death. One of the murdered victims was Major Muhammad Kiggundu, a highprofile personality, which has heightened public expectations regarding the outcome of the case. Furthermore, since the offence was committed in 2016, it must be disposed of swiftly, as any further delay could jeopardise the chances of successful prosecution, considering the potential decline in witness memory over time. Counsel also noted that additional delays in the case's hearing would amount

to a denial of justice for the victims of the crimes committed and depriving the other accused persons of their right to a speedy and fair trial.

[15]Lastly, counsel for the applicant argued that it is in the interest of justice and public policy that justice is both done and seen to be done; and that the justice system should not be perceived as susceptible to manipulation and abuse. He therefore prayed that the court grants the order for the respondent to be tried in the absence of the accused person.

## *Arguments for the Respondent*

- [16]Counsel Ochieng's first argument was that the order sought by the applicant was not a specific prayer. The applicant prayed that the criminal case against the respondent should continue in the respondent's absence. In his view, there are many options for continuing a trial in the respondent's absence, such as trying the respondent in his absence, thereby severing him from the case. The applicant should have explicitly requested orders to try the respondent in his absence. He further submitted that the trial of an accused person and criminal responsibility are individual. He invited us to consider the provisions of *Section 25 of the Trial on Indictments Act, Cap 25,* which provides for joinder, stating that the use of the word "may" therein implies that a court can try an accused separately or may choose not to do so at its discretion. - [17]Concerning the laws under which the application was brought, he submitted that *Article 139* of the *Constitution* provides for the unlimited original jurisdiction of the court; however, it does not enable the court to try a person in absentia and, therefore, finds it inapplicable to the application. He also argued that *Section 14(1) of the Judicature Act,* as cited for the applicant, also pertains to the unlimited original jurisdiction, which the respondent was not challenging. Regarding *Section 37 of the Judicature Act*, he stated that it is a general provision outlining the remedies the court has jurisdiction to grant, either absolutely or subject to specific conditions. He submitted that all the laws cited by the applicant have none touching on the trial of an accused in his absence; therefore, the application is incompetent because there is no law enabling the court to grant that remedy. He noted that *Section 37 of the Judicature Act* appeals to the court's discretion to grant any remedy but emphasised that the court must exercise its power within the law to grant any remedy. - [18]He submitted that the trial of an accused individual is a vital matter concerning the right to a fair hearing under Article 28 of the Constitution. The court's order that

the accused person is tried in their absence is not only in contravention of *Article 28* but also *Article 44 of the Constitution.* He pointed out some tenets under *Article 28* that he finds crucial in guaranteeing the right to a fair hearing. He cited *Article 28 (1)* on an accused person's entitlement to a fair, speedy, and public trial; Article 28 (3) (a) on the presumption of innocence; *Article 28 (3) (d)* on the accused's right to be permitted to appear before the court in person or at their own expense by a lawyer of their choice; and *Article 28 (3) (g*) on the accused person being afforded facilities to examine witnesses and to obtain the attendance of witnesses as important tenets.

- [19]He also cited *Article 28(5)*, which states that; "*except with his or her consent, the trial of any person shall not take place in the absence of that person unless he so conducts himself so as to make the continuation of the proceedings in his presence impracticable, and the court orders that the person be removed, allowing the trial to proceed in his absence.*" According to him, this clause covers those persons who, while present in court, behave in a way that makes their continued presence impracticable, prompting the court to issue an order for their removal so the trial can proceed. Therefore, His argument was that being removable only applies to a person before the court, to justify an order to '*remove him for that conduct*'. - [20]It was his submission that *Article 28* must be read together with *Article 44* of *the Constitution* to state that the right to a fair hearing is among the rights the court cannot derogate. He argued that making an order to try the respondent in his absence would circumvent *Article 28* and effectively violate *Article 44*. He stated that the hands of the DPP are not tied, as there are many options for hearing a case where the respondent is a co-accused, which does not involve a trial in his absence. He submitted that *Section 53 of the Trial on Indictments Act* allows for a separate trial for the respondent. He relied on the case of *Uganda v. Kanyamunyu Mathew Muyogoma & 2 Others* Criminal Session Case 39 of 2017, where one of the accused persons was absent. The State was prepared to proceed with witnesses. In that case, Mubiru J*.* held that: "*a criminal trial should be conducted in the presence of the accused. Under Article 28 (5) of the constitution of the Republic of Uganda 1995, the trial of any person should not take place in the absence of that person, except with his or her consent or unless the person so conducts himself or herself to render the continuance of the proceedings*

*in the presence of that person impracticable and the court makes an order for the person to be removed and the trial to proceed in the absence of that person"* In comparison to the application before the court, counsel stated that the accused had not given his consent to be tried in his absence.

- [21]He also noted that in the case of *Kanyamunyu supra,* the court found that while the interest of justice generally requires all co-accused to be tried together, as joint trials reduce the risk of inconsistent verdicts, the absence of one or more accused persons can lead to a departure from this rule. This is in light of *Article 28 (1) of the Constitution,* which guarantees every accused person a fair, speedy, and public hearing before an independent and impartial tribunal. Consequently, the court ordered a separate trial due to these constitutional guarantees. Counsel, therefore, requested that the court consider this option in the current matter. Additionally, counsel submitted that the applicant could enter a Nolle Prosequi concerning the respondent, as this does not bar subsequent trials upon his arrest. - [22]Counsel drew the court's attention to *Rule 16* of *the Judicature (High Court) (International Crimes Division) Rules, 2016,* which stipulates that an accused person is entitled to be present in court for the duration of their trial, provided they conduct themselves properly. He argued that an order for the applicant to be tried in their absence would violate that rule. He noted that the only exception to *Rule 16(1) was in Rule 16(2),* which states: "*if an accused does not conduct himself or herself properly, the court may in its discretion direct him or her to be removed and kept in custody.*" He interpreted that provision to mean that the accused person must be present in court, but because of their conduct, he is removed from court and kept in custody. He noted that when an order to remove an accused is issued under *Rule 16*, to avoid violating his constitutional right, that rule continues to provide that; "*the court will also make such provision as in its discretion appears sufficient, for him or her being informed of the proceedings of the trial and for making his or her defence*." - [23]He therefore concluded that an order to try the respondent in his absence, under these circumstances, cannot be made under *Rule 16* since his presence in custody where he would be informed of the proceedings—is not satisfied. He also noted that key aspects of a hearing—such as identification—cannot be overlooked. He argued that an accused must be identified and linked to any offence; in this case, since the court had not seen the respondent, he questioned how identification evidence would be handled. He further observed that, as his advocate appointed to represent him on a state brief, the respondent was not present in court and therefore

did not know him. Counsel distinguished the authorities cited by state counsel as follows: For *Uganda v. Gulindwa Paul and Tumusime, HCT-00-AC-CM-0005-2015* he noted that prosecution evidence was taken, and a ruling of a prima facie case was made in the presence of the accused, with his right to make sworn or unsworn statements, or to remain silent, explained. He submitted that identification could not arise here, as the accused was present when the evidence against him was presented. Regarding *Ethan Newry v. Regina***,** *Common Wealth of Bahamas in the Court of Appeal SCCrApp No. 75 of 2010***,** he argued that the case was not applicable, as the appellant, although present, acted in a manner that rendered the trial's continuation impractical—and thus, in his view, falls under exceptions in the *Constitution* and *Rule 16* of this court. As for *Uganda v. Hon. Kabafunzaki Herbert*, *HCC No. 7 of 2017,* he observed that the accused disappeared at the defence stage and the court had seen him; therefore, this case was not applicable here, where the court saw the respondent but did not take his plea. In *Uganda v. Kasujja Shafiq,* [2023] UGHCICD 13, where the prosecution sought to try Kasujja in absentia, he considered this a wrongful precedent, as the court relied on *Ethan Newry supra* and applied it out of context. He reiterated that the case of *Ethan Newry* pertains to *Rule 16(2),* where an accused behaves in a manner in court that makes proceedings impractical, not when the accused cannot be found. In all these cases, he argued that the courts failed to consider the right to a fair hearing under *Article 44* of the *Constitution,* but if they had, they would have recognised that this right is non-derogable. Finally, he pointed out that all decisions cited by the applicant were High Court rulings and not binding on this court.

#### *Arguments in rejoinder*

- [24]Counsel for the Applicant argued that the application is based on proper law, namely *Article 139* of the *Constitution* and *Sections 14 and 37* of the *Judicature Act,* which confer the court's jurisdiction and powers to hear such applications. He also drew the court's attention to *Article 126(2)(b)* and *(e)* of the *Constitution* regarding the exercise of judicial powers. In response to the respondent's counsel's assertion that the court cannot issue an order for the trial of the accused in his absence, he stated that the principle behind all the cases cited by the applicant was the trial of an accused when he absconds, as in this case. Although the different cases cited present varying facts, the core principle remains that the accused persons absconded from court. - [25]Regarding *Article 28(5),* as cited by counsel for the respondent, which states that a trial of a person shall not take place in their absence unless they conduct themselves in a manner that renders the continuation of proceedings impracticable, he submitted that the respondent's mere absence from the trial constitutes a breach of their non-derogable rights under *Article 44*, from which they cannot benefit. He argued that the accused does not necessarily need to be physically present because conduct is not solely physical; it can be implied that the deliberate absence of the respondent from court indicates they cannot be before the court and therefore can be excluded. He further submitted that the respondent waived his right to appear at the trial and is, in effect, delaying proceedings against other accused persons. Additionally, he noted that a trial is not only for accused persons but also involves complainants, victims in the case, and the general public. In his view, it would set a poor precedent if an accused person skipped bail and the court merely agreed with the respondent's submissions that the court had alternative options.

- [26]In response to the option of the DPP entering a Nolle Prosequi in this matter, counsel for the applicant submitted that it is a prerogative of the DPP. Regarding the court ordering a separate trial, counsel urged the court to consider the behaviour of the accused person, who deliberately absented himself without justification, thereby abandoning the criminal proceedings against him. He also asked the court to consider the seriousness of the offences the respondent is accused of and the public interest of the victims and witnesses, whose memories could be further affected by delays, especially since the incidents in this case occurred in 2016. The other factors he requested the court to consider included that, among the eight accused persons, it was only the respondent who was absent from court, and the overall cost of conducting a separate trial, particularly in this case involving a full panel of judges, assessors, and counsel on state brief would be expensive. He argued that, to agree with counsel for the respondent, the court would be opening a floodgate for accused persons to abscond, simply because they believe the trial against them will not proceed. - [27]Counsel brought to the attention of the court the decision of the Appeals Chamber of the ICC in the case of the *Prosecutor v. Joseph Kony, ICC-02/04-01-05,* where the Chamber permitted the case to proceed in the absence of Joseph Kony, particularly given that the accused has never appeared and cannot be located. He noted that the affidavit relied upon by the Applicant clearly demonstrates that the respondent cannot be found, making the analogy that the court has not seen the respondent incorrect, especially since this court granted bail to the respondent, who then absconded. He argued that it is ironic for the Counsel for the respondent to claim that there will be a derogation of his client's rights due to his absence, while the former vigorously represented his interests in court.

[28]In conclusion, counsel for the applicant argued that the cases relied upon by the applicant are clearly distinguished from the arguments of counsel for the Respondent. He submitted that it would be a serious dilemma if the court were not empowered by law to exercise its discretion to try an accused person in their absence, as trials could be delayed indefinitely, causing distress to witnesses, victims, and the public, as is the case here. He therefore urged the court to exercise its discretion by forgoing the physical presence of the respondent and allowing the case to proceed in their absence. His other request was that the accused remain on the indictment as they have a legal representative to protect their interests.

## *DETERMINATION*

- [29]We have thoroughly reviewed this application, the relevant laws and authorities cited by counsel for guidance, and the submissions of counsel. - [30]Before delving into the merits of the application, we first of all answer counsel for the respondent's contention as was raised in his submissions that this application is incompetent because the laws under which the application was brought and cited by the applicant are not provisions that enable the court to grant the remedy of trial of an accused in his absence. - [31]The general rule is that where an application omits to cite any law at all or cites the wrong law, but the jurisdiction to grant the order sought exists, the irregularity or omission can be ignored, and the correct law inserted. In the matter before us, *Article 28(5)* of the *Constitution* empowers courts in Uganda to make orders for trial of an accused person in absentia and *Section 37* of the *Judicature Act, Cap 16* empowers the High Court in exercise of its jurisdiction vested in it by any written law to grant all such remedies to settle all matters in controversy between the parties as far as possible. The administration of justice, therefore, requires that the substance of this dispute be investigated and decided on its merits. The error and lapse of counsel should not debar its settlement. [See: *Tarlol Singh Saggu v. Roadmaster*

## *Cycles (U) Ltd* CACA No. 46/2000]

- [32]As the applicant's counsel correctly pointed out, the court must determine whether criminal proceedings in High Court Criminal Case HCT-00-ICD-SC-00022018 can proceed in the respondent's absence. - [33]The issue in question is a tenet of the right to a fair hearing as enshrined in *Article 28(5)* of *the 1995 Constitution of the Republic of Uganda (as amended),* which provides:

*"Except with his or her consent, the trial of any person shall not take place in the absence of that person unless the person so conducts himself or herself as to render the continuance of the proceedings in the presence of that person impracticable and the court makes an order for the person to be removed and the trial to proceed in the absence of that person."*

- [34]In the case of *Uganda v. Gulindwa Paul & Tumusiime* [2015] UGHCACD 2, as cited by the applicant's counsel, Wangutusi J. correctly addressed the issue of whether a criminal trial can proceed without the accused, and we agree with his ruling. He stated that a judicial officer has the discretion to continue with a trial in the absence of the accused; however, this discretion must be exercised with great care, considering the case within its proceedings to ensure a fair trial. The focus should not only be on fairness but also on upholding the public interest. To determine if the trial should proceed without the accused, Wangutusi J. considered whether the accused was properly served, had the opportunity to instruct legal counsel, and was aware of the trial date and their obligation to attend. - [35]In this case, regarding whether the respondent had the opportunity to instruct legal counsel, he was represented by Counsel Turyamusiima Geoffrey on state brief throughout the pre-trial stage until 28th March 2025, when he withdrew from representing him. Following this withdrawal, the court, in accordance with *Article 28(3)(e) of the 1995 Constitution,* appointed Counsel Caleb Alaka and Evans Ochieng to represent him on state brief. Concerning whether the respondent was aware of the trial date and his obligation to attend, it should be noted that he was granted bail on 6th August 2019, on the condition that he would appear before the registrar of the High Court every 19th day of the month or the next working day and attend court at any time required to answer the charges for which he had been arrested, and continue to do so until otherwise directed by the court. Under these conditions, the respondent was aware of his obligation to attend court. In fact, it is on record that he attended court on 6th June 2024, when the criminal case against him was scheduled for conferencing. When the case was set for trial on 31st March 2025, his legal representative was aware of the date, as he had been issued a hearing notice. And, had the respondent report on 19th March 2025 as required by the bail terms, like his co-accused persons, he would have been informed of the trial date. - [36]When the respondent was absent from court on 31st March 2025, a criminal summons was issued against him and his sureties to appear in court on 3rd April 2025. Following this, the applicant filed an affidavit of service stating that the

respondent had not been found at his last known place of residence. In the affidavit supporting the motion, D/IP Bwire Stephen swore that upon receiving the criminal summons, he went to Luzira Stage Six Zone, Nakawa in Kampala District, where the LC1 Chairperson informed him that the respondent and one of his sureties, Bwire Samuel, had lived in their father's house shortly before they sold it and moved to unknown locations. He called Bwire Samuel, who told him he lived in a village in Busia and asked him to leave the criminal summons with the LC1 Chairperson. D/IP Bwire also swore that he then travelled to Nabweru South Zone 2 in Wakiso District, another known residence of the respondent, where his landlady informed him that the respondent had never returned to the house after his arrest.

- [37]Furthermore, one of his sureties, Mr. Muyomba Abdul Swamadu, attended court on 3rd April 2025 and testified that he last heard from the respondent in December 2024 or January 2025. He failed to reach him on his known numbers, so he did not know his whereabouts. The court issued a warrant of arrest against the respondent to attend court on 28th April 2025. According to D/IP Bwire's affidavit, the warrant was published in the New Vision Newspaper on 11th April and announced on 17th April 2025 on Sanyu FM and Capital FM. Despite these efforts, the respondent did not attend court, and he has not been arrested. From these facts, it can be safely concluded that the respondent skipped bail. - [38]The question that arises now is how a person who skipped bail should be treated. We are persuaded by the case of *R. v. Abrahams (1985) 21 VLR 343 at 347* where it was opined that "*if an accused person failed to appear at a trial and was found, when the trial came on, to have absconded, he had clearly waived his right to be present and the prosecution might elect to go on with the trial in his absence*. *In such event, the Judge would exercise his discretion whether to allow the trial to continue, paying particular attention to whether the Defendant was represented.*" - [39]In this case, the respondent was required to report to court on the 19th day of each month, which he defaulted on, and all attempts to contact him were unsuccessful. While his previous counsel withdrew from representing him, the court appointed other counsel capable of representing his interests in his absence if the trial proceeds without him. - [40]We are also persuaded by *Gulindwa* supra, where it was held that a defendant of full age and sound mind who is adequately notified of his trial and chooses to absent himself violates his obligation to attend court, deprives himself of the right to be present, and when a criminal trial proceeds in his absence, it is essential to

consider the fairness of the trial. A trial is not only for the accused person, but its effects extend beyond to affect the complainants, victims, and the public. When an accused absconds bail, he prevents the trial from being fair to all parties involved. Allowing accused persons to evade prosecution and delaying that process would undermine the state's ability to administer justice effectively.

- [41]We are further persuaded by the case of *Diaz v. United States 223 US 442 (1912),* where the court treated the absence of an accused person mid-trial as a knowing and voluntary waiver of the right to be present, and Wangutusi J.'s decision that the discontinuance of a case where an accused person has skipped bail and voluntarily absconded from court attendance would lead to a perforation of public policy if the courts were to stop proceeding with such trials because of voluntary absence. We concur that it is against public policy to allow the frustration of court proceedings by accused persons who have voluntarily absconded and, therefore, have waived their right to be heard. - [42]In this case, the respondent last appeared in court on 6th June 2024 and was fully aware that proceedings were ongoing against him. At that time, he had already exercised his right to hire a lawyer of his choice. He was represented by Mr. Geoffrey Turyamusiima, who was notified by the court of the next hearing date. If his lawyer failed to inform him of the next hearing date, it remained his responsibility, according to his bail conditions, to report to court every 19th day of the month, where he would have learnt of the next hearing date. The respondent's failure to report to court as required by his bail terms, his departure from known places of residence without a trace, and the unavailability of his known telephone contacts strongly suggest he has absconded, thereby waiving his right to be present and to be heard at his trial. In light of the above circumstances, we find that the accused has behaved in a manner that makes it impractical to continue the proceedings against him in his presence. - [43]The decision in the case of *R. v. Hayward [2001]* 3 WLR 125, as cited by the applicant's counsel, is also instructive regarding the considerations the court should take into account in relation to a defendant's trial in his absence, as listed under paragraph 10 of this ruling. Applying this to the present case: a) the accused's deliberate failure to report to court as required by his bail terms, relocating from his known residences and switching off his known numbers, constitutes deliberate and voluntary behaviour in absconding from the trial, thus clearly waiving his right to appear; b) the accused faces charges of murder, aiding or abetting terrorism, and membership or professing to belong to a terrorist

organisation, which are serious offences, with murder attracting the maximum penalty of death; c) it is in the public interest, as well as for the victims and witnesses, that his trial should be held within a reasonable time after the events to which it relates; d) the offence occurred in 2016, which affects the memories of the witnesses; and e) the respondent is co-accused with seven others who have not absconded, making it undesirable to halt the trial in favour of the respondent as this would infringe upon his co-accused's right to a fair and speedy trial.

- [44]Considering the argument made by the respondent's counsel regarding alternative options for proceeding in the absence of the accused, such as entering a Nolle Prosequi or severing the respondent from the indictment for a separate trial, *Section 37* of the *Judicature Act, Cap 16* provides as follows: *The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided."* [Emphasis ours] - [45]In light of that section, we think that trying the respondent in absentia aligns with the goal of avoiding multiplicities of legal proceedings and prevents frustration of court proceedings by persons who voluntarily abscond. - [46]The applicant's counsel cited *Prosecutor v. Joseph Kony (ICC-02/04-01/05)* as an example of a court proceeding in the absence of an accused person. However, in that case, the Appeals Chamber's interpretation of *Article 61(2)(b) of the Rome Statute* was specific to pre-trial hearings for confirmation of charges when an accused person has fled or cannot be found. - [47]The matter before us concerns a trial of an accused person in absentia who has jumped bail. It should also be noted that the provision of *Article 61(2)(b)* supra relates to pre-trial hearings, while *Article 63* of the Rome Statute concerns trial proceedings.

Unlike *Article 61(2)(b)*, Article 63 does not envisage a trial of an accused person who has never appeared, cannot be found, or has even jumped bail.

[48]In conclusion, the respondent's voluntary act of absconding from the court's jurisdiction constitutes conduct that makes it impractical to continue the proceedings in his presence. The respondent thereby waives his right to be tried in his presence, and in light of the above, this application is granted. It is ordered that the criminal proceedings against the respondent in High Court International Crimes Division Criminal Case HCT-00-ICD-SC-0002-2018 shall proceed in his absence.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**HON. JUSTICE SUSAN OKALANY JUDGE (PRESIDING HEAD)**



**HON. JUSTICE ALICE KOMUHANGI KHAUKHA JUDGE**

**HON. JUSTICE BONIFACE WAMALA JUDGE (ALTERNATE)**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**