[2022] UGHCCRD 5

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL CRIMINAL SESSION NO. 299 OF 2019

### **UGANDA**

#### PROSECUTOR

#### VERSUS

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- 1. NO. RA. 233382 PTE. MUGISA FRANCIS ALIAS OFATUM - MWESIGE CHARLES ALIAS BASHIR - ACCUSED 3. KAMANYIRE GERALD ..............

## BEFORE: HON. LADY JUSTICE FLORENCE NAKACHWA

#### **RULING**

- The accused are indicted with the offence of aggravated robbery contrary to sections 285 and 286 (2) of the Penal Code Act, Cap 120. The particulars of the offence are that on 18^th April 2018, the accused persons at Kigarama Cell in Kiko Town Council in Kabarole District, while armed with a gun robbed Kansiime Esther of cash Ug.shs. 100,000/= and shop items valued at Ug.shs. 1,102,000/=. They threatened to use the said gun on Kansiime Esther during the same robbery. - 2. On 25^th January 2022 when this matter came up for hearing, Counsel Kashaija Andrew, the State Attorney informed court that Prison Warder No. 14066 Cheptgei reported that A3 Kamanyire Gerald escaped from lawful custody on 19^th September 2018 and is still at large. He also informed court that A1 No. RA 233382 Private Mugisha Francis alias Ofatum who is on bail

has absconded his bail and the Deputy Registrar His Worship Matenga Dawa Francis had confirmed that A1 was no longer reporting for bail.

- 3. Detective Inspector of Police Omuge Julius, was the investigating officer in this matter. He told court that he is currently attached to Busia Police Station but was previously attached to Central Police Station in Fort Portal. He confirmed the information that the State Attorney was giving court as correct. A1 was given bail but he absconded. They proceeded to his home area at Nyakagongo to find out whether he is around or not but the information from LC1 Chairman was that A1 had never been seen in the village. That they are also getting reports that A1 was committing similar offences in Ntoroko area. That A1 was once seen in a remote area where he had a woman but also disappeared. - 4. About A3, Omuge told court that he has never been seen since that time when he made open escape from court when they were boarding a bus to go back to prison. A2 had also escaped but he was re-arrested and was present in court that day. - 5. The State Attorney submitted that while Article 28 of the Constitution of the Republic of Uganda, 1995 provided that trial of an accused person must be in their presence, the escape of A3 and disappearance of A1 puts them under the exceptions provided under article 28 (5) of the Constitution. He prayed that court exercises its discretion and allows their trial in their absence. - 6. Counsel Ruth Ongom representing the accused on State Brief objected to that prayer on grounds that the application was very premature. When the matter came up on 9^th December 2021 for plea taking, it was only A2 present

and they were informed that A1 was on bail and A3 had escaped from custody. There were no records from court or the State Attorney's office to show that they had taken reasonable steps to summon A1 whose details and those of his sureties were recorded when he was granted bail. There was no evidence to show that his sureties had been contacted to produce the accused which is their obligation. The information given by the prosecution about the failure to locate A1 and A3 is not sufficient. It just shows that the prosecution has failed to summon the accused to come for trial.

- 7. In reply, the State Attorney submitted that when this matter came up on 9^th December 2021, court was informed about the predicament of A1 and A3, A1 had long absconded and was no longer appearing. Omuge told court that he went out of his way to trace and apprehend A1 in vain and the LC1 Chairperson of the area told him that the accused cannot be traced. This was not disputed by counsel for the accused. A3 escaped from lawful custody of Prison services who put up all efforts to re -apprehend him. A warrant of arrest was issued by this court against A1 but it has not been executed because A1 cannot be found. The two accused persons placed themselves under the guillotine of being tried in absentia and this court is dressed with such discretion. In the interest of fairness to all parties in this case, the court should order that the two accused be tried in their absence. - Article 28 (5) of the Constitution provides that

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 absence of that person."

- 9. To my understanding, while article 28(5) mandates the presence of an accused person during their trial, it creates the exception where an accused conducts himself or herself in such a way that continuing with the trial in that person's presence is impracticable. In such a scenario, the Constitution gives court the power to order that the trial proceeds in the absence of the accused. However, the Constitution does not outline scenarios where the exception applies, therefore, it appears to apply on a case by case basis. - 10. While discussing the above article, in Uganda v. Gulindwa Paul and Tumusiime HCT - 00 - AC - CM - 0005 - 2015 the court stated that

"this position is also recognized by International Conventions. Article 14(3) (e) of the International Covenant on Civil and Political Rights. 1996 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." See also Ekbatani V Sweden (1988) 13 EHRR 509. The wording of these provisions clearly indicates that a judicial officer has discretion in these matters. The discretion to proceed with a trial in the absence of the accused however, demands extreme care after considering the case against its context in proceedings with the sole purpose of conducting a fair trial. The lense must not only be pointed at a fair trial but also towards satisfaction of public interest. The Court must be satisfied that the accused was served. Furthermore, that he had the opportunity to

instruct legal counsel (Colozza V Italy (ibid), knew the date of the trial and of his obligation to attend."

- 11. A1 jumped bail and A3 escaped from lawful custody on 19^th September 2018 and have not been apprehended yet. Their whereabouts are not known. There is no way they could be informed of the date of trial and of their obligation to attend. It is although important to highlight that the State has not led any evidence to show that the sureties of A1 were ever summoned and tasked to explain the whereabouts of A1. - 12. Previously, the courts held the right of the accused to attend their trial as paramount. In **Lawrence vs The King [1933] AC 699** the House of Lords considered the question of the circumstances under which a criminal matter could proceed in the absence of the accused person and held that except for the need to exclude a violent accused from the courtroom there were no exceptions to the requirement of physical presence for the trial of a felony. At page 708, Lord Atkin said:

"It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused: and for this purpose trial means the whole of the proceedings, including sentence. There is authority for saying that in cases of misdemeanour there may be special circumstances which permit a trial in the absence of the accused, but on trials for felony the rule is inviolable, unless possibly the violent conduct of the accused himself intended to make trial impossible and renders it lawful to continue in his absence. The result is that sentence passed for felony in the absence of the accused is totally invalid."

While discussing the court's discretion to try an accused in their absence. Lord Bingham of Cornhill in Regina v. Johns (1972) 1 WLR 887 stated that

> "in turning to general principle, I find it hard to discern any principled distinction between continuing a trial in the absence, for whatever reason, of a defendant and beginning a trial which has not in law commenced. If, as is accepted, the court may properly exercise its discretion to permit the one, why should it not permit the other? It is of course true that if a trial has begun and run for some time, the inconvenience to witnesses of attending to testify again on a later occasion, and the waste of time and money, are likely to be greater if the trial is stopped than in the case of a trial that has never begun. But these are matters which, however relevant to the exercise of discretion, provide no ground for holding that a discretion exists in the one case and not in the other. ..... Considerations of practical justice in my opinion support the existence of the discretion which the Court of Appeal held to exist. To appreciate this, it is only necessary to consider the hypothesis of a multi-defendant prosecution in which the return of a just verdict in relation to any and all defendants is dependent on their being jointly indicted and jointly tried. On the eve of the commencement of the trial, one defendant absconds. If the court has no discretion to begin the trial against that defendant in his 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. Happily, cases of this kind are very rare. But a system of criminal justice should not be open to manipulation in such a way."

14. In Uganda v. Gulindwa Paul and Tumusiime (supra), the court cited Diaz v. United States 223 US 442 (1912) which dealt with this proposition to some extent. It was stated thus "the question is one of broad public policy, whether an accused person placed upon trial for a crime and protected by all the safeguards with which the humanity of our present criminal law sedulously surrounds him, can with impunity defy the process of that law, paralyse the proceedings of courts and jury and turn them into a solemn farce and ultimately compel society, for its own safety, to restrict the operation of the principle of personal liberty. Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong and yet this would be precisely what it would do, if it permitted an escapee from prison or an abscondee from the jurisdiction while at large on bail and during the pendency of a trial before a jury to operate as a shield. .... Lastly, the discontinuance of a case where an accused person has skipped bail and voluntarily absconded from court attendance would lead to perforation of public policy if the courts were to stop proceeding with such trials because of voluntary absence."

# 15. In the Australian case The Queen v. Antonios Mokbel [2006] VSC 520 at page 19, the court held that

"the Court does have a discretion to continue a trial in the absence of the accused, but there are competing interests which must be considered and weighed. The first, of course, is the right of an accused person to have a fair trial in which he can hear the case put against him and respond to it. The other interest is the public interest, namely

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that the administration of justice must not be unnecessarily impeded. It is trite to observe that trials would be put at risk if accused persons on bail could absent themselves in the course of a trial, thereby seeking to abort the trial."

- 16. The sum of all those decided cases is that there are circumstances when the accused can be tried in his or her absence. Although court is dressed with the discretion to make such an order, it is a discretion which ought to be exercised cautiously considering the rights of the accused vis-a-vis those of the victims, witnesses and the public at large. It is noteworthy to emphasize that it is a cardinal principle of the criminal law that the trial of an accused person on an indictment shall be conducted in his or her presence. - 17. In the instant case, both A1 and A3 were aware of the indictments against them. While A1 was granted bail pending his trial on 18^th December 2019, he chose to skip the same. It was a requirement of his bail that he appears before the Registrar once in a month till trial, starting on 16th January 2020. The record shows that A1 appeared before the Assistant Registrar in April 2020, October 2020, November 2020, December 2020, February 2021, and June 2021. On the other hand, A2 and A3 chose to escape from lawful custody when they were brought to court. Efforts were exerted to re-apprehend both of them but only A2 was re-arrested. A3 escaped and has never been rearrested. - 18. Article 28 (3) (a) of the Constitution of the Republic of Uganda, 1995 as amended provides that every person who is charged with a criminal offence shall be presumed innocent until proved guilty or until that person has pleaded

quilty. A1 who jumped bail and A3 who escaped from lawful custody are presumed innocent under the above provision of the Constitution. They had not taken plea to the indictment. Had they taken plea, court would have recorded a plea of guilty or a plea of not guilty. Where an accused person pleads not quilty, the trial of the accused commences before a court of competent jurisdiction; in this case the High Court.

- 19. In my judgment this is the moment when Article 28(5) of the Constitution becomes applicable. It is restated here for emphasis: "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." - The trial of A1 and A3 had not commenced for the above article to be invoked as prayed for by the prosecution counsel. In my judgement, the phrase "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" implies that a trial should have started and the accused misconducts himself or herself as to lead the court to make an order for that person's removal. In the instant case, the two accused persons are not available before court to be removed. One jumped bail and the other escaped from lawful custody of prison authority. All these happened before they were presented before the High Court to answer to the indictment. Under the Constitution of the Republic of Uganda1995, they are presumed

innocent. Consequently, they cannot be tried before they take plea. Therefore, their trial in absentia does not arise.

- On 19^th December, 2019, when A1 Mugisa Francis was granted bail, two sureties, that is Adoc Mary Mugisa and Imuliut Moses, bound themselves to pay 5,000,000/= to the Sovereign State of Uganda if the accused defaulted on the bail terms. I hereby order that a warrant of arrest do issue against the accused and his sureties to appear before this court to show cause why they should not be committed to civil prison if they cannot produce the accused or pay the sum mentioned above. A warrant of arrest is also hereby ordered for A3.- Kamanyire Gerald who escaped from lawful custody on 19^th September 2018. I so order accordingly. - Since I have ruled that A1 and A3 cannot be tried in their absence, the course. open to the prosecution is to amend the indictment under section 50(2) of the Trial on Indictments Act, Cap 23 or for the Director of Public Prosecutions to enter a nolle prosequi under section 134 of the Trial on Indictments Act, Cap 23.

Ruling made this $\frac{1}{1}$ day of February, 2022.

Florence Nakachwa

JUDGE