THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT JINJA
CRIMINAL MISC. APPLICATION NO. 075 OF 2016
[ARISING FROM JINJA CRIMINAL CASE NO 0059/2016 AND 0064/2016
BEFORE: HON. LADY JUSTICE EVA K. LUSWATA
The applicant filed this application for bail under Article 23[a], 28[a] and 139 of the Constitution of the Republic of Uganda 1995, Sections 14 and 15 of the TIA and Rule 2 of the Judicature (Criminal Procedure) (Applications) Rules. The application which is supported by the applicant’s two affidavits raised grounds which can be summarized as follows:-
 The applicant who is the traditional and cultural leader of the Rwenzururu Kingdom was arrested on 27/11/16 from his Buhikira Royal Palace in Kasese and charged in the Jinja Magistrate’s Court on 13th and 14th November, 2016 formultipleoffences as follows:-
- Terrorism c/s 7 (1)(a)of the Anti Terrorism Act
- Murder c/s 188 and 189 of the Penal Code Act
- Eight Counts of attempted murder c/s 204 (a) of the Penal Code Act
- Aggravated robbery c/s 285 and 286 (2) of the Penal Code Act
- Treason c/s 23 (1)(a), (c) and (d)of the Penal Code Act
- Malicious damage to property c/s 335 (1) of the Penal Code Act
 The applicant is presumed innocent and has no intention to plead guilty to all the offences for which he is charged, and it is his fundamental constitutional right to apply for bail.
 The applicant has a fixed place of abode and substantial sureties within the jurisdiction of this Court who will assure his compliance to any bail conditions especially his attendance for his trial. He himself pledges to abide by any and all bail conditions imposed by the Court.
 The applicant is facing no other pending criminal charges and there is no likelihood of him interfering with investigations or witnesses.
 The offences for which he is charged are bailable by the High Court which has wide discretionary powers to release him on bail
The applicantfiled two affidavits(on14/8/16 and 8/01/17 respectively) to substantiate the above grounds, and in response to the respondent’s objection against bail. Beyond what is stated in the above grounds, and in brief, he deposed in the main affidavit that as the King, he is in charge of the culture, customs, traditions, wishes and aspirations of over seven million people of his Rwenzururu Kingdom, that was created and recognized under the Constitution of Uganda 1995. That he was on 27/11/16, arrested from his Buhikira Royal Palace in Kasese District after it was bombed and razed by a combined force of Uganda People’s Defence Forces (UPDF) and Uganda Police Force (UPF) and detained in a safe house in Nalufenya, Jinja District.
That during the raid, several of his subjects including women and children at the palace, were under extremely undignified circumstances brutallykilled, maimed and others are still unaccounted for.That the Kingdom’s property including royal regalia and cultural items, traditional and coronation huts and records were destroyed, burnt or looted. He was then charged of multiple offences in the Chief Magistrate’s Court of Jinja, which he regards as false and fabricated and intended to embarrass the institution of his Kingdom.That being a family man aged 64 years with a wife and children under his care, he has exceptional circumstances justifying his release. That he will appear for his trialand is thateager to attend in order to clear his name of all charges levied against him. It is therefore fair, just and constitutional that he is released on bail pending his trial.
The respondent opposed the application and through the affidavit of Ssuna Richard, Detective Assistant Superintendent of Police, Regional CID officer, Rwenzori East, clarified that Nalufenya is a gazetted Police Station in Jinja District, and not a safe house. He deposed further that the applicant is jointly charged with others vide KASESE CRB 242/2016, Court Criminal Case No. A59/2016 and KASESE CRB 881/2016, Court Criminal Case No. A64/2016, of multiple charges of terrorism, murder, attempted murder, aggravated robbery, treason and malicious damage to property, whose investigations were still ongoing. That there are multiple pending cases against the applicant that are still in the initial stages of investigations vide KASESE CRB 455/2016: KABAROLE CRB 1067/2016 and KABAROLE CRB 1343/2016 involving charges of terrorism and murder, and he would, if granted bail, certainly interfere and frustrate pending investigations.
D/ASP Ssuna deposed further that the offences with which the applicant is charged are grave, involve great personal and fatal violence to persons, and carry a maximum sentence of death upon conviction, which would increase probability of the applicant absconding if released on bail.That the applicant who as cultural King of the Rwenzururu Kingdom, wields considerable influence over his subjects, will interfere with ongoing police investigations. That to compound the situation, the Rwenzori region is tense and potentially volatile and due to his influence, it will deteriorate and result into the applicant committing further criminal offences when on bail.
In an affidavit in rejoinder, the applicant deposed that the respondent’s revelation that investigations are still ongoing, was a demonstration that the State is not ready to commit him for trial. He pledged to categorically refrain from interfering with police investigations and that the allegations that he would do so, were only speculative. That in his position as King, he is entitled to Government protection and security over his person and home and thus, the allegation that he would abscond or interfere with investigations or cause violence are utterly false.
He further deposed that beyond the charges for which he is seeking bail, he is not aware of any other pending cases against him and even then, he is innocent of all alleged grave offences against him, and eager to clear his name. That he has never been convicted of any offence involving violence and as King and leader of his people, he has a duty and is committed to work with all leaders and stakeholders including the President of the Republic of Uganda, to improve the situation in the Rwenzori region. That his release would assist in realization of long lasting peace, calm and normalcy in the Rwenzori region.He continued that his palace at Kasese having been destroyed and still in the occupation of armed forces, his only home is in Muyenga, Kampala where he undertakes to remain and only travel to Kasese with express permission of the Court.
Counsel Alaka made oral submissions that substantially mirrored the application and its supporting affidavits. Those and the authorities cited were noted and will be keenly considered in my ruling. He concluded by presenting six suretiesin support of the application.There was assurance by co-counsel Ochieng in rejoinder, that, all six sureties who were conversant of the English language, had received instruction and understood the nature of their dutiesand were prepared to execute their mandate jointly in order to ensure the applicant’s attendance at the trial. He invitedcourt to find them very substantial and that, since the problems in Kasese had been addressed, and the applicant was prepared to have state security in his home, the application should be allowed with reasonable conditions. For the record, the details of the sureties presented to support the applicant’s release are as follows:-
 WINIFRED KIIZA aged 44 years, sister in law of the applicant; leader of opposition andwoman member of Parliament, Kasese District, resident of Kyaliwajala Zone A, Wakiso District, and holder of Parliament ID. No. MP 558/10, and East African Passport No. UG045028, Cell No. 0758986661.
 HON. WILLIAM NZOGHU aged 42 years, applicant’s maternal uncle, member of Parliament representing Busongora North constituency, Kasese District, resident of Mulawa LCI, Kira Town Council, Wakiso District, and holder of National ID No. 003767120, Parliament ID. No. MP 958/10, Cell No. and Cell Nos. 0702306303 and 0772306303.
 HON. GODFREY ATKINS aged 42 years, personal friend and subject of the applicant; member of Parliament representing Bukonzo County West constituency, Kasese District, resident of LCI Muarik, Gayaza ward, Kasangati Town Council, Wakiso District and holder of Parliament ID. No. MP 958/10, Cell No. 0756112016.
 HON. CENTENARY FRANCO ROBERT aged 37 years, nephew of the applicant; member of Parliament representing Kasese Municipality constituency, Kasese District, resident of Bukasa Village, Urban Council, Makindye Division, Kampala District, and holder of Parliament ID. No. MP 921/10, and Cell No. 003767120.
 HON. MUHINDO TONNY HAROLD aged 43 years, applicant’s brother in law, subject and personal friend;Member of Parliament representing Bukonzo County East, constituency, Kasese District, resident of Kyaliwajala Zone A, Kira Municipal Council, Wakiso District and holder of Parliament ID. No. MP 921/10, and Cell No. 0772573217.
 BWAMBALE CONSTANTINE 64 years, former Prime Minister of the applicant’s kingdom, his close friend and Kingsman who served for nine years; Managing Director of Bakwanye Trading Co., Ltd on Plot 26 Wampewo Avenue, Kololo, Kampala and Plot 13/15, 3rd Street, Kasese resident of LCI Town Centre, Kasese Municipal Council, Central Division, Kasese District, and holder of National ID No. 013294008, and Cell No. 0772482248
I confirmed that documentation supporting the information of each of the above sureties, was on 23/12/16 served upon the respondent and documentation in support of their residences was adduced in Court without objection on 12/1/17. Counsel Alaka submitted that all six persons have or have had important responsibilities in society and are of high repute and traceable. He then invited the Court to find them substantial and allow the application, for it had merit.
Counsel Ojok Alex, likewise largely hinged his submissions upon the averments of D/ASP Ssuna Richard to strongly oppose the application citing the following summarized grounds:-
- The accused faces several charges on two different criminal case files that are grave, highly sensitive and involved great violence.
- The situation in Kasese before the applicant’s arrest was very volatile to the extent that upon his arrest, the DPP requested the Chief Justice for the case to be transferred from Kasese to the jurisdiction of the Chief Magistrate’s court of Jinja. That request was granted in the Chief Justice’sletter dated 29/11/2016 which was tendered in Court without protest from the applicant’s advocates
- The applicant who wields considerable influence will interfere with police investigations in Kasese which are still in infancy yet arrests are still ongoing. If released, the calm situation attained will deteriorate and result into commission of more crimes
- The sureties presented are not substantial. They are all the applicant’s subjects who cannot compel him to attend trial
- The court is not bound to release the applicant on bail even where exemptional circumstances have been shown.
- The state is ready to commit the applicant in the very near future and thereafter expedite his prosecution.
He then concluded that should the application be allowed, then the conditions of bail should be stringent.
I have held in previous bail applications, and in this, I am supported by a wealth of authority of this and the Constitutional Court that bail is a constitutional right. It is guaranteed under Article 23[a] of the Constitution which provides as follows: -“Where a person is arrested in respect of a criminal offence ……….. the person is entitled to apply to the court to be released on bail, and the court may grant that person bail on such conditions as the court considers reasonable.”
The applicant specifically proceeded under Section 14 (1) of the TIA where it is provided that: -
“(1) The High Court may at any stage in the proceedings release the accused person on bail, that is to say, on taking from him or her a recognizance consisting of a bond, with or without sureties, for such an amount as is reasonable in the circumstances of the case, to appear before the court on such a date and at such a time as is named in the bond.”
That right which is clearly one of judicial discretion,is founded on the constitutional principle that a person is presumed innocent until proven guilty by a competent court or, until such person voluntarily pleads guilty to the charge. Both counsel were in full agreement with those principles, save that, counsel Ojok citing authority, argued that the applicant’s constitutional right to bail must always be weighed against the need to protect the public from lawlessness. He argued further that my Court needs to treat each case on its peculiar facts and may need to depart from her earlier decisions in which bail was granted.
According to Black’s Law Dictionary 10th Edition at page 167, bail is defined as “the process by which a person is released from custody either on the undertaking of a surety or on his or her recognizance usually for a future court appearance”.
In our law, the primary purpose of bail should be to ensure that the applicant appears to stand trial, without the necessity of being detained in custody during the period of trial. See for example: Col (Rt.) Dr. Kizza Besigye vs. Uganda [Criminal Application No. 83/2016], and Masaba Geoffrey vs. Uganda [Criminal Misc. Application No. 035/2016.The Constitutional Court in Uganda vs. Col. (Rt.) Dr. Kizza Besigye [Constitutional Reference No. 5/2005] set a principle that the court must be satisfied that the applicant will appear for trial and not abscond. Thus therefore if facts come to light that there is a substantial likelihood for the applicant offending bail, it is advisable to deny the application.
In determining whether there will be high probability of compliance and as such, it is safe to release an applicant on bail, the court is to be guided by well-established principles that: -
(a) The accused has a fixed place of abode within the jurisdiction of the court.
(b) The accused has sound sureties within court’s jurisdiction to undertake that the accused shall comply with the conditions of bail.
(c) The applicant is not likely to influence or tamper with evidence or interfere with prosecution witnesses.
(d) Exceptional circumstances have been presented warranting the release of the applicant on bail
(e) Whether the accused has on previous occasion flouted bail conditions.
(f) Whether there are other charges pending against the accused.
(g) The severity of the offences for which the accused is charged.
(h) Any other circumstances.
I will consider the last requirement first, least because it embodies the thrust of the respondent’s objection to the application. It was argued and the facts show that the applicant is facing several charges of treason, terrorism, murder, attempted murder, aggravated robbery and malicious damage to property. All, save for one are very serious capital crimes each attracting a maximum sentence of death. It is the respondent’s view that the likelihood to abscond is thereby high. Counsel Alaka disagreed stating that the severity of a charge should not disentitle one seeking bail for it, remains just that, a charge, and the prosecution will still be expected to prove it at a very high degree.
It was the view of Justice Mulenga JSC (as he then was) in Attorney General vs. Tumushabe (2008) EA 26 quoted in Okello Augustine vs. Uganda Criminal Misc. Application No. 006/2012 that
“It is clear to me that Clause 6 of Article 23 applies to every person waiting trial for a criminal offence without exception.Under paragraph (a) of that clause, every such person at any time, upon or after being charged, may apply for release on bail, and the court may at its discretion, grant the application irrespective to the class of criminal offence, for which the person is charged.”
I believe that observation owes its origin to the constitutional and common law doctrine that one is innocent of a criminal offence until proven guilty. Courts have been cautioned not to treat bail as a punishment against the applicant or to deprive one of liberty unreasonably and preference has been to allow the accused the full benefit of his civil liberties, the gravity of the charges against him/her notwithstanding. I would hold the same view to hold that even one facing multiple serious charges (as is the case here) is entitled to present himself for bail leaving the court the discretion to consider the case as a whole before making the decision to grant or refuse bail.
There was in addition a strong objection that the applicant being the reigning King commands a big influence in the Rwenzururu region, has the capacity and would interfere with ongoing investigations intended for his trial. The court in Uganda vs. Col. (Rt.) Dr. KizzaBesigye (2005) (supra) held that the gravity of the offences can be a relevant factor in this argument but qualified it to state that there should be some other indication of violence or threatening behavior by the accused. Indeed D/ASP Ssuna dwelt on that point in paragraphs 5, 6 and 7 of his affidavit. In his view, the threat of interference was in fact certain. However beyond that strong contention, nothing was shown how that interference would manifest itself or whether it had previously happened at all.
On the other hand, Counsel Ojok did concede that the situation in Rwenzururu is no longer volatile. It is my view that it is the duty of the Government of Uganda to maintain that peace and prevent further escalation into violence. The applicant’s release should not threaten that peace. If the applicant’s wields the kind of psychological influence that the respondent states he does, his continued incarceration or conditional freedom would not matter. Ultimately, such fears of the respondent cannot override the civil liberties to which the applicant is entitled under Article 23 of the Constitution.
I have confirmed that the applicant is facing other charges but no strong arguments were made and I see none that those charges will influence the accused to abscond when released on bail with respect to the charges for which he seeks bail. What is clear is that there is also no proof presented that the applicant has on previous occasion been released and disobeyed terms set for bail.
The applicant presented two places of abode; his Kingdom’s palace in Muyenga Cell, Nyakabugo II Ward, Central Division, Kasese Municipality in Kasese District and at Kanyonzi, Muyenga off Kironde Road, Makindye Division, Kampala, within the jurisdiction of the High Court. The applicant indicated that owing to the circumstances currently pertaining in Kasese, he intended to stay in Muyega Kampala. A letter dated 10/12/2016 by Benjamin A. Sebusolo the LC.I Chairman, Muyenga “B” Village urban Council, introducing the applicant as a resident (of five years) was tendered to support proof of his residence.
I take judicial notice that Muyenga in Makindye Division, is a well known area and the specifics of the applicant’s address there have been given. I equally acknowledge that as a leader of a cultural institution, the King would be resident in a palace. The reference to him as “His Majesty, Charles Wesley Mumbere”, in the letter of introduction dated 11/12/16 by Sunday Boir, of the office of the Chairperson, Kyanzuki village, Nyakabingo II Ward, in Kasese Municipality, depicts as much.
To substantiate his abode, and in response to questions put to him to clarify the nature and specifics of his abode, the applicant explained that the residence in Muyenga that is under the security of state operatives, and is well fenced, was offered to him by the Government of Uganda and rent is paid by the State. I believe this would be in line with the privileges to which he is entitled under the Institution of Traditional or Cultural Leaders Act, 2011. There was no serious contest to the above facts and am accordingly satisfied that the accused has two places of abode within the jurisdiction of the High Court.
Seven sureties were presented to support the application and applicant’s counsel considers them substantial. I believe the respondent was given ample time to verify the authenticity of their identification papers and proof of residence. Indeed, there was no objection on those points, the bone of contention being that being the king’s subjects they will not be in a position to compel him to attend trial. In reply, applicant’s counsel argued that the fact of the applicant’s Kingship cannot be erased, but that should not disentitle him to bail.
Respondent’s arguments on this point cannot be ignored. Court takes judicial notice of the fact that in Uganda, tribes that have traditional Kingdoms, consider them as deep rooted institutions of their cultural heritage. Those who head these Kingdoms are regarded highly, even often with reverence.I did notice the pride with which some of the sureties introduced themselves as the “Omusinga subjects or Kinsmen” and this may have heightened the respondent’s fear, that they may be traditionally impotent in compelling his attendance to attend his trial.
The above notwithstanding I have in an earlier decision pointed out that the traditional duties of a surety must be accompanied with their credentials, proximity by blood and distance from the applicant and ability to influence the applicant’s attendance to trial. All sureties are prominent Ugandans, five of them are Members of Parliament representing different constituencies in Kasese District. They are enlightened enough to understand the history of this case and what is at stake in respect of the Kingdom and the country as a whole. I am inclined to believe Counsel Alaka’s submission that they have not staked their reputation wantonly. Their credentials are satisfactory, one is a senior citizen who previously held a very high office in the Kingdom. Another resides in Makindye District near one of the applicant’s stated places of abode and represents the constituency in which the applicant’s main seat is situated.
The Parliamentarians are public figures who are traceable and despite being younger than the applicant, hold positions in which they control or guide a population of varying ages and should thereby have the required influence to compel the applicant to attend his trial. Being Members of Parliament, and receiving some of the highest salaries among public servants, they are expected to comfortably execute a genuine performance bond with the court and pay it in case the accused absconds. Thus, inspite of their probable allegiance to the applicant and his Kingdom, I consider all six sureties presented as substantial. The applicant is himself a very public figure, who claims to have a following of seven million people. Although the number of his subjects in Uganda could be the subject of debate, the chances that he will disappear in thin air are minimal.
The application was in addition to other laws, based on Section 15 of the TIA, and the applicant presented his age as 65 years. His Counsel directed the court to the two charge sheets in the Jinja Magistrate’s court in which the State quoted that same age. Indeed, the respondent did not contest those facts but counsel Okot argued that it is not mandatory, that once exemptional circumstances are proved, the applicant must be released. He quoted the authority of Lwamafwa Jimmy & others vs. Uganda; Misc. Criminal Application Nos. 58, 59 and 62/2015 (consolidated) in which applicants aged 58 and 68 years were denied bail. He argued that even then, the applicant can live in prison for the lower court had made an order allowing him special food, medical care, and visits by his lawyer and next of kin, thereby making his stay more comfortable.
In response, counsel Ochieng argued that the Lwamafwa’s case (supra) is distinguishable, in that the application for bail came at a time when the trial had reached an advanced stage.
I have perused that authority and confirmed that Justice Lawrence Gidudu before denying bail on charges connected with “white collar crime”, considered the stage at which the trial had progressed, the evidence that had been adduced thus far, and the fact that a previous case against the accused persons had failed, while they were on bail release. The facts of this case in terms of the charges and otherwise are quite different.
That above notwithstanding, the proof of exemptional circumstances is not mandatory and it remains as one out of the several conditions that the court has to consider before granting bail. It would still require for the court addressing its judicious mind and discretion to consider all circumstances of the case, including exemptional circumstances which I have done here.
In conclusion, having considered all circumstances of this case, including the accused’s constitutional right to bail, his stated antecedents, and the sureties presented, I am satisfied that the applicant will return to attend his trial, and accordingly allow the application to release him on bail with conditions.
However, before I set the bail conditions, I need to point out that in addition to the observations I made with respect to the applicant’s ability to interfere with evidence and witnesses and the averments by D/ASP Ssuna of the escalating and now calm situation within the applicant’s Kingdom in particular and Kasese District in general, I need to make the following comments, pertinent to this application and my decision as a whole.
Without putting much emphasis on its truth, the media has been awash of the incidents in the Rwenzururu Kingdom especially towards the end of month of November 2016 that led to the applicant’s arrest. Both parties did in their affidavits and submissions make reference to those facts. The Constitutional Court did in Uganda vs. Col (Rt.) Dr. Kizza Besigye (2005) (supra) advise a judicious balance between the right to bail and public interest. In this case, it would also have an impact on the allegations of possible interference with ongoing investigations. I have held that such investigations cannot override the applicant’s constitutional right to civil liberties enshrined in the Bill of Rights. However, the police should be allowed to do their work, with no interference or suspicion of such interference. Thus will therefore entail stringent conditions of bail that suit the justice of the matter.
The applicant in his affidavit made a claim that his personal documents including his passport were either destroyed during the raid on his palace or are in the custody of the police. He could not recall the passport number but confirmed that it was a diplomatic passport. That claim was not denied or rebuted by the respondent and could hold truth. It would mean therefore that for now, his travel abroad may be difficult or impossible.
However, in paragraph 10 of his affidavit in rejoinder, the applicant undertook to remain within Kampala City and travel to Kasese only with express permission of the court. His lawyer added that his client was ready to entertain state security on his person and home so that any suspicion of interference is eliminated. This court takes those concessions seriously and will consider them when setting conditions for bail.
Therefore, having released the applicant on bail, I give the following as the conditions that the applicant shall fulfil:-
 The applicant is to be bound by his own recognizance of UGX 100,000,000/= not cash.
 Each of the sureties approved is to execute a non cash bond of UGX 100,000,000 (one hundred million shillings each).
 The applicant is for the duration of his trial, prohibited to move outside the boundaries of the Republic of Uganda and may obtain a new Ugandan passport only after notifying this Court through the Chief Magistrate of Jinja or any Court to which the applicant will be committed for trial. Should he obtain a passport after his release, then the same must be deposited with the Chief Magistrate of Jinja or with the Registrar of the High Court to which he will have been committed for trial.
 The applicant is for the duration of his trial, prohibited from carrying out any acts of violence or interference with any type of police investigations with respect to any charges against him. To achieve that aim, his movements are restricted within Kampala, Wakiso and Jinja Districts only. For the avoidance of doubt, he is prohibited from travelling to or in any manner accessing the districts of Kasese, Kabarole and Bundibugyo during the pendance of his trial, or until a contrary or review order is made by the High Court.
 The above condition shall be subject to review at the instance of either party to the application, once every four months with effect from 30th April, 2017, as the justice may require.
 The Government of the Republic of Uganda shall continue to maintain the security detail ordinarily issued to the applicant as his entitlement under the Institution of Traditional or Cultural Leaders Act, 2011. For the duration of his trial, the applicant shall not refuse, obstruct or disband such security except after a formal application inter parties is made to the High Court to that effect
 The applicant shall continue to report to the Chief Magistrate of Jinja on every date that his case is called to mention. He shall in addition appear before the same Judicial Officer in answer to the bail terms once every month, with effect from 13th February, 2017. He will not be required to appear two times in the event that his mention date falls on the same date as the date he reports in respect to this order.
 Upon his committal for trial in any Division of the High Court, the applicant is directed to appear before the designated Registrar two times every month, falling on the 1st and 21st day of each month.
 In default of any of the above terms, the applicant is to keep on remand.
 Either party may on formal application have the right to apply for a review of these terms, before committal, to this Court and thereafter, to any division of the High Court to which the applicant may be committed for trial, Such application is to be made only in order to meet the justice of the matter in accordance with the circumstances that will prevail on the date such application is made.
 I further direct that a copy of this order be served upon the Chief Magistrate of Jinja Magisterial Area who is currently in charge of the pre-committal proceedings of the applicant.
 I further direct that another copy shall be served upon the Commissioner Immigration, in the Directorate of Immigration and Citizenship Control in the Ministry of Internal Affairs, to notify that office of procedures to be followed before the applicant can obtain a new passport and to notify all borders of the Republic of Uganda of the specifics of this order.
I so order.
EVA K. LUSWATA