[2023] UGHCICD 13

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (INTERNATIONAL CRIMES DIVISION) CRIMINAL APPLICATION NO. 17 OF 2023** 5 **(ARISING FROM HCT-00-ICD-SC-0003-2018) UGANDA ………………………………………………………… APPLICANT VERSUS KASUJJA SHAFIQ …………………………………………… RESPONDENT**

## 10 **BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA**

### **RULING**

#### **Introduction**

This Ruling is in respect of an Application brought by way of Notice of Motion 15 under Article 139 (1) of the Constitution of Uganda (as amended) and Sections 14 (1) and 33 of the Judicature Act, Cap. 13 for Orders that:

- 1. The criminal proceedings against the Respondent in the International Crimes Division of the High Court should continue in the absence of the Respondent; - 2. The failure by the Respondent to attend Court proceedings amounts to 20 absconding, which is a deliberate act by the Respondent intended to frustrate the completion of his case; - 3. The continued absence of the Respondent from the court is illegal, irregular, and tantamount to occasioning a miscarriage of justice; and - 4. This Honorable Court is vested with the powers to grant the Orders sought.

#### **Appearance and Representation**

When the application came up for hearing, the Applicant was represented by Mr. Birivumbuka Richard, Chief State Attorney from the Office of the Director of Public Prosecutions while the Respondent was represented by Mr. Turyamusiima Geoffrey 5 on State brief.

#### **The Application**

The Application is supported by the affidavit of D/AIP Kimutwa Benard, a Police Officer who made fruitless efforts to execute the criminal summons and the warrant

10 of arrest against the Respondent. The Respondent did not make any affidavit in reply and Counsel for the Respondent informed the Court that his efforts to convince the known relatives of the Respondent to file an Affidavit on his behalf were in vain.

Counsel for the Applicant made oral submissions citing authorities and the same 15 have been considered in this ruling while Counsel for the Respondent did not object to the Application. As such, he did not make any submissions.

#### **The Applicant's case**

The Applicant's case as deduced from the Affidavit in Support of Proof of Execution

- 20 of Criminal Summons and Warrant of Arrest of D/AIP Kimutwa Benard is that: Kasujja Shafiq (hereinafter referred to as **the Respondent**) was jointly charged with others in **HCT-00-ICD-SC-0003-2018** on charges of Murder, Aggravated Robbery and Aiding and Abetting Terrorism of the late AIP Andrew Felix Kaweesi, his driver and body guard; that the Respondent was produced in Court and later granted bail - 25 vide Miscellaneous Application No. 12 of 2018 pending the hearing of his case; that Criminal Summons were extracted and served upon the Applicant at his known place

of abode at Railway Quarters LC1 Port Bell Luzira in Kampala in vain as he was not found there.

He also averred that this Honorable Court issued a Warrant of Arrest against the Respondent on 2 nd May 2023 that was published in the New Vision of Thursday 11th 5 May 2023 and there was still no response; that investigations were carried out and it was discovered that the Respondent disappeared with his family to the Democratic Republic of Congo (DRC) through porous borders and re-united with the Allied Democratic Forces (ADF) of which he is a member; and that his availability for trial 10 is practically impossible.

**Issue**

*Whether criminal proceedings in HCT-00-ICD-SC-0003-2018 can continue against the Respondent in his absence.*

#### **Resolution of issue**

# *Whether criminal proceedings in HCT-00-ICD-SC-0003-2018 can continue against the Respondent in his absence.*

Mr. Birivumbuka while relying on Article 139 of the Constitution, Sections 14(1) 20 and 33 of the Judicature Act, Section 14 (1) of the Trial on Indictments Act (T. I. A) and the cases of, *Ethan Newry and Regina Common Wealth of Bahamas in the Court of Appeal SCCrApp No. 75 of 2010* and *Uganda versus Gulindwa Paul HCT-00-AC-CM-0005-2015*, submitted that the accused person who absconded bail in 2018 to date intends to frustrate the hearing of this matter. That this is contrary to 25 the interests of the victims and the co-accused who are reporting. That the said accused has waived his rights and cannot turn around and say that they were violated. He then prayed that the application is granted.

As stated earlier herein, Counsel for the Respondent did not object to the Application. He submitted that he contacted some of the family members of the Respondent and they all refused to swear an Affidavit in Reply. That they informed him not to object and that in that regard, he did not object in the interest of justice.

The right to a fair hearing is provided for under Article 28 of the Constitution of the Republic of Uganda.

Article 28 (1) directs that in the determination of civil rights and obligations or any criminal charge, a person has a right to a fair, speedy and public hearing before an

10 independent and impartial court. It requires in Article 28 (2) (g) that accused person be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before the court.

This position is also recognized by International Conventions. Article 14 (3) (e) of

- 15 the International Covenant on Civil and Political Rights, 1966 provides that in the determination of any criminal charge, a person shall be entitled: **"***To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing."* - 20 Article 28 (5) of provides circumstances under which the trial of a person may proceed in the absence of that person. It provides thus:

*"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*

25 *impracticable and the court makes an order for that person to be removed and the trial to proceed in absence of that person."* [Emphasis Mine]. Also see: Rule 16 of the of the Judicature (High Court) (International Crimes Division) Rules, 2016.

In the case between **Ethan Newry and Regina,** *supra* (cited by the Applicant's lawyer), the Court approved the principles laid down by Lord Rose in the case of *R versus Hayward [2001] 3 W. L. R 125* regarding the considerations Court should take into account in relation to the trial of a defendant in his absence, among which are, 5 among others:

- (a) the nature and circumstances of the defendant's behavior in absenting himself from the trial or disrupting it, as the case may be and , in particular, whether his behavior was deliberate, voluntary and such a plainly waived his right to appear; - 10 (b)the seriousness of the offence, which affects the defendant, victim and public; (c) the general public interest of victims and witnesses that a trial should take place within a reasonable time of events to which it relates; - (d)the effect of delay on the memories of the witnesses; and - (e) where there is more than one defendant and not all have absconded, the 15 undesirability of separate trials and the prospects of a fair trial for the defendants who are present. [Emphasis Mine]

Also, in the case of *Uganda versus Hon. Herbert Kabafunzaki Criminal Case No. 0007 of 2017*, where Court noted that the accused had jumped bail and abandoned 20 the proceedings after the Prosecution had led the evidence of 15 witnesses, it was further noted that the Court granted the State's Application that the trial proceeds in the accused's absence since it would be against public policy to allow the frustration of Court proceedings by the accused person who had chosen to abscond and therefore waived his right to be heard. [Emphasis Mine].

In the case of *Uganda versus Gulindwa Paul and Tumusiime* **HCT-00-AC-CM-005-2015**, when faced with an Application to proceed with the trial in the absence of the accused person, court observed thus:

"*In my view, a Defendant of full age and sound mind, who is properly notified of his*

- 5 *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 come up and claim he had been denied his Constitutional rights. I hold this view because I do not think that one who voluntarily chooses not to exercise a right given to him by the constitution, cannot turn around and say he has* - 10 *lost the benefits he might have expected to enjoy had he exercised it."*

In the case of *Regina Versus Jones [1972] 1 WLR 887*, Lord Bingham of Cornhill while addressing a similar situation observed that:

"*If the Court has no discretion to begin the trial against the Defendant in his* 15 *absence, it faces an acute dilemma. Either the whole trial must be delayed until the absent Defendant is apprehended, an event which may cause real anguish to witnesses and victims or the trial must be commenced against the Defendants who appear and not the Defendant who has absconded. This may confer a wholly unjustified advantage on that Defendant …but a system of criminal justice should* 20 *not be open to manipulation in such a way."*

In *Uganda versus Gulindwa Paul and Tumusiime* **(supra),** the court further observed that:

"*It is also important to consider the extent of fairness in a trial. The trial is not only*

25 *for the accused person. The effect of a trial exceeds the accused and engulfs the complainants, victim and the public. It follows therefore that where an accused person skips bail, he prevents the trial from being fair as against all the others…to* *allow the accused person to abscond from prosecution and staying that prosecution would completely disarm the State in its administration of justice."*

I entirely agree with the proposition enunciated in the above Court decisions. I am 5 also of the view that an accused person who is granted bail with conditions to report to the Court for his trial to which he commits and binds himself has a duty to present himself in the Court for his trial as and when he is required. If he absents himself deliberately and without a satisfactory justification to the Court, it means that he has waived his right to present at his trial and I hold the view that the trial should be 10 conducted in his absence. Staying or delaying the trial on account of the accused person who has deliberately jumped bail would indeed have far reaching implications and would encourage such conduct by other accused persons with a resultant effect of rendering the criminal justice impotent.

15 In the instant Application, the Applicant has adduced evidence in the Affidavit deposed by D/AIP Kimutwa Benard, to the effect that when he went to the last known place of abode of the Respondent to serve him with Criminal Summons, he was reliably informed by the Chairperson LC 1 of the area that the Respondent had disappeared with his family in December 2021 and that the Respondent's 20 disappearance had been reported to Kitintale Police Station by a one Zziwa Muzamiru.

I have also had the opportunity of looking at the retrieved Station Diary of Kitintale Police Station in particular Reference No. 42/21/22/12/2021 and I find that it is true 25 that the disappearance of the Respondent was reported by Zziwa Muzamiru Asuman, the brother to the Respondent who stated that at that time, they had not seen the Respondent in the past two weeks. I also read the Letter from Barungi Elizabeth, the LC1 Chairperson of Railway Quarters Village, Port Bell, Luzira wherein she informs the Court that she and some of the Respondent's relatives had taken quite some time without seeing him. In the premises, the Respondent/accused cannot be traced as efforts to do so have all been in vain.

Considering the above provisions of the law and cases cited herein, I find that this is a case of 2018 and to date, it is still on pre-trial stage and the delay has mainly been caused by the deliberate and intentional absence of the Respondent. I find that the Respondent has voluntarily and/or on his own accord chosen to jump bail and 10 abandon the proceedings against him in this Honorable Court. I have no doubt that the Respondent is fully aware that the proceedings in HCT-00-ICD-SC-0003-2018 are ongoing because the case involves a total of eight accused persons who were all granted bail. Whereas the rest of the accused persons have complied with the bail terms and have not absconded, the Respondent who was fully aware of the charges 15 against him chose to abscond. I take it that he has waived his right to be present for his trial and his presence can be waived and the trial proceed in his absence.

It is also my finding that the nature of the offences committed in HCT-00-ICD-SC-0003-2018 are serious, the general public is desirous of knowing the progress in this 20 matter and that its further delay shall have adverse and/or a negative impact in the prosecution of it in addition to denying the other accused persons in this trial a speedy and fair hearing.

#### **Conclusion**

25 In light of the above, I find that the Respondent has conducted himself in such a manner that renders the continuance of these proceedings in his presence impracticable since he cannot be traced.

Consequently, this application succeeds and the following Orders are granted:

- 1. The failure by the Respondent to attend Court proceedings amounts to absconding and it is a deliberate act by the Respondent intended to frustrate the completion of his case; and - 5 2. The criminal proceedings against the Respondent in the International Crimes Division of the High Court shall continue in the absence of the Respondent.

I so order.

**Dated at Kampala this 18th day of July 2023.**

…………………………….

Alice Komuhangi Khaukha

15 **JUDGE**

18/07/2023