[1996] UGHC 74

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT SESSION

## HOLDEN AT GULU

CRIMINAL SESSION CASE NO. 382 OF 1995 UGANDA PROSECUTION — VERSUS — OKIDI FRANCIS ACCUSED

BEFORE THff HQNQUR£BLE. MR t JUSTICE ^G tM⁴ OKELLO

## ^R ^U ^B I ^N ^G

When this case was called for hearing, the prosecuting counsel sought its adjournment on the ground that only one witness for the prosecution had turned up. They were not traced. The .prosecution had intended to call ⁸ witnesses. Tn counsel's view, no sufficient effort had been made to trace these witnesses. He prayed that the case be adjourned to the next convenient session of this court.

Counsel for the accused did not object to the application for adjournment though he expressed concern that this was a very old case being a 19.87 case. He however prayed that in the meantime the accused should be released on bail on conditions which the court con siders fit. He made the application under section ⁵¹ (4) of the T. I

Mr Kabali the Resident Senior State Attorney prosecuting the case, objected to the application on the ground that the accused had not made the ¹⁵ months required under section 14 ^A of the T. I. D. According to counsel, in those circumstances the accused was not entitled to. release on bail since he was already committed to the High Court for trial.

Mr. Olaa for the accused replied that under section ⁵¹ (4) of the T. I. D. it was not necessary that an accused should have made ¹⁵ months in custody before committal to be entitled to release on bail Section ⁵¹ (4) merely empowers court to release an accused on

bail where for reasons to be recorded the hearing of the case was to be post poned. Counsel argued that in this case, the commencement of the hearing of this case could not start for want of witness-That on that ground court had the power to release the accused es. on bail on conditions it alone considers fit.

Having heard the above submissions from the learned counsels, it is instructive to reproduce here the section of the Trial on Indictment Decree under which the application for bail was made. It reads, thus,

- "51 (1) If, from the absence of witnesses or any other reasonable cause to be recorded in the proce dings, the High Court considers it necessary or advisable to postmone the commencement of or to adjourn any trial, the court may from time to time postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable and may by warrant remand the accused to some prison or other place of security. - $(2) \ldots$ - $(3)$ $\cdots$ - $(4)$ The court may on remand admit the accused to bail subject to such conditions as may seem appropriate".

The above sub-section 4 clearly empowers the High Court where out of necessity or on good cause to be recorded on the record, the commencement of or further hearing of a case had to be postponed or adjourned, to admit the accused already in custody on bail on conditions it considers appropriate. The section did not require that an accused should have served 15 months in custody before committal. The section anticipated a prolong delay on remand in custody on various ground before the start of the hearing or a protracted trial while the accused continues in custody on remand. The section attempts to redress that mischief. It left it to the court to determine the conditions upon which such an accused could be released on bail.

In my view in exercising that discretion, court was expected to consider and set conditions that would ensure that the accused would appear and attend his trial without having to remain in custody. Keeping an accused on remand in custody is purposely to ensure that he would appear to attend his trial. It is not hy itself ^a punishment. See Jaffer -vs- ^R ( 1973) EA ³⁹ - ⁴ ^where it was held that the primary objective of remanding an accused person in custody was to ensure that he would appear to take his trial and not to seek to evade justice by leaving the jurisdiction of the court.

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In the instant case, the hearing of the case has unduly delayed to start. This is an old case. It started on December 31st 198? and has a chequered history. At one point Police file got lost. Even the prosecuting counsel himself in admitting that out of the eight witnesses the prosecution intended to call only one was served, doubted if the rest of the witnesses would later be traced. With that kind of admission, I was surprised that the learned counsel still did not •wish to concede to the release of the accused on bail. What would be the purpose of the further remanding of the accused in custody if the state was in doubt of securing witnesses to prove its case against him. Remanding an accused in custody is not to punish him. If he can appear to attend his trial there would be no legal reason for keeping him in custody on remand. Eor those reasons, I am inclined to release this accused on bail on the following condi tions:-

- 1) The accused to bind himself in the sum of shs 500,000.= not cash. - 2) To produce two substantial sureties who are willing to ensure that the accused will appear to attend his trial. The sureties who must be approved by the Chief Magistrate Oulu are to bind themselves in the sum of shs ¹ million each not cash

3) On release, the accused to report to the Police Station Gulu and to the Chief Magistrates Court Gulu once a month effective from 14th August, ¹⁹⁹⁶ until further order of this court.

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G. M. OKELLO

Judge

14th August, 1996