THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA – NAKAWA CENTRAL CIRCUIT

MISC. CRIMINAL APPLICATION NO. …… OF 20….

NSANGWA DENIS ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::            APPLICANT

V E R S U S

UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::            RESPONDENT

RULING

BEFORE: HON. LADY JUSTICE ELIZABETH IBANDA NAHAMYA

This application was brought under Article 23 (6) (a) and Article 28 (1) of the Constitution of the Republic of Uganda and section 14 (1) and 15 of the Trial on Indictment Act for orders that the Applicant be granted bail pending trial. The application is supported by the Applicant’s own Affidavit.

The Applicant is charged with murder c/s 188 and 189 of the Penal Code Act Cap. 120. It is alleged that the Nsangwa Denis and others at large, on the 14^th day of October 2012 at Ntwetwe ‘B’ zone in the Kyankwanzi District murdered Lubega Alex.

The Applicant was represented by Learned Counsel Okwalinga Moses from Uganda Law Society, Legal Aid Clinic while the Respondent was represented by Ms. Caroline Mpumwire, State Attorney.

The main grounds for the Application as set in the Notice of Motion and the Applicant’s Affidavit are as follows;

• That the Applicant has a fundamental right to apply for bail.

• The Applicant is presumed innocent under Article 28 of the Constitution of the Republic of Uganda.

• The Applicant has no previous criminal record.

• The Applicant has a fixed place of abode at Kisojjo LC 1 Ntwetwe Town Council in Kyankwanzi District.

• The Applicant will not interfere with witnesses if released on bail.

• The Applicant has substantial Sureties.

Counsel for the Applicant, Mr. Okwalinga submitted that the Applicant has been on remand for over one year and his case is yet to be scheduled for hearing. He submitted that even if his client does not fall within the exceptional circumstances, Court can still exercise its discretion and grant bail if it is satisfied. He referred to the case of Mubiru Hussein vs. Uganda (Misc. Application No. 26/13 which referred to Constitutional Reference No. 20 of 2005 and also relied on Mugyenyi Stephen vs. Uganda H.C. Criminal Application No. 65/04 on this point. He referred to the mitigating factors that the Court may weigh including the fact that the Applicant has no previous criminal record, has a fixed place of abode at Kisojjo.

He presented three Sureties. The first Surety, Kaddu Moses, a resident of Ddegeya LC 1, Kitwala Parish, Ntwetwe Sub-county, Kyankwanzi District. He is a Sub-county Councillor since 2011. He presented an LC 1 Letter of Ddegeya LC.1 dated 04^th September 2011, a citizen card issued on 20^th May 2012 signed by Nyombi Fred and an identity card of Radio Kiboga (FM 89.5) where he is a committee member since 2008.

The Surety stated that he had known the Applicant for over 9 years. I however noted that his LC Letter for introduction was out dated. Further, it was unclear to who had issued his citizen ID.

The second Surety presented was Ssendegeya Samwiri, of Ddegeya LC.1, Kitwala Parish in Ntwetwe Sub-county, Kyankwanzi. He is a peasant farmer and trades in groceries and farm produce. He stated that the Applicant is his friend of about 8 years. He pointed that he does not know what the Accused person is charged with. He stated that he had last visited the Accused in May 2013. He was however not sure of his role as a Surety.

The third Surety was Rebecca Rukundo, a wife to the Applicant. She presented a citizen ID signed by Nyombi Fred and issued on 11^th March 2013. The Surety stated that her LC.1 letter was washed alongside other clothes.

The Learned State Attorney, Ms. Mpumwire objected to the bail application. She submitted that since the Applicant has been committed, soon the case will soon be set down for hearing. She argued that the Applicant’s Counsel did not adduce any exceptional circumstances as per section 15 of the Trial on Indictments Act.

She cited the case of Uganda vs. Mubiru Hussein where it was held that Court has to weigh the gravity of the offence and severity of the sentence. She submitted that in the instant case, there is a murder charge and the ultimate sentence is death, hence grave in nature.

Regarding the Sureties, she pointed out that the first Surety told Court that he stays in Ddegeya village with the Applicant yet the Applicant states in paragraph 9 of his affidavit that he resides in Kitojjo village. She stated that this was a sign that the Applicant had lied about his place of residence. She also argued that the Surety’s letter of introduction of 4^th September 2011 is out dated so the Court cannot be sure where the Surety resides.

Turning to the second Surety, Ms. Mpumwire stated that the second Surety brought a letter stamped and signed by the same person but upon comparison of the two letters, the handwriting seemed different and the unsigned letter seemed like a forgery. She argued that the Surety lied that he went to visit the Applicant in May 2013 yet at that time, the Accused had been transferred to Kigo Prison. Ms. Mpumwire stated that the third Surety, who is the Applicant’s wife, told Court that she stays in Ddegeya with the Applicant yet the Applicant stated that he stays in Kitojjo. She prayed to Court to find the Sureties not substantial and to reject the Applicant’s bail application.

The law regarding release on bail of an Accused charged with a capital offence is to be found in the provisions of sections 14 and 15 of the Trial on Indictment Act. Section 15 (1) of the Trial on Indictments Act provides for an Applicant’s release on bail where it is proved that exceptional circumstances exist to justify it. These exceptional circumstance may include grave illness certified by a Medical Officer, a certificate of no objection from the DPP, or infancy or advanced age of the Accused.

I am, however, cognizant of the law that exceptional circumstances are not mandatory but are directory. (See Rtd. Dr. KiizaBesigye Constitutional Reference No. 20 of 2005). Still, I find that the Applicant has not proved any exceptional circumstances to justify his release on bail. Moreover, the Applicant is charged with a grave offence.

The Court is mindful that the Applicant is presumed innocent until the Court finds him guilty. The rationale of bail is that instead of keeping the suspect on remand, he should be released if he has a fixed place of abode and sound Sureties who undertake that he will comply with conditions on bail.

I am in full agreement with the Learned State Attorney that the Sureties are not substantial and I reject them. The Sureties stated that the Applicant stays in Ddegeya yet the Applicant states that he stays in Kitojjo LC.1. The Court cannot properly establish where the Applicant stays. In his Affidavit, the Applicant states that he stays in Kitojjo LC.1. This means that the Sureties are not substantial since they do not know where the Applicant resides. They cannot therefore undertake that the Applicant will comply with the conditions set for bail. I am not inclined to release the Applicant on his own recognisance.

Additionally, as I already pointed out earlier the documents they presented for identification were out of order and outdated. This is therefore a case in respect of which I would not exercise my discretion. Hence I will not admit the Accused on bail.

Consequently, the Applicant’s bail application is hereby denied.

Signed:………………………………….………………..

Hon. Lady Justice Elizabeth Ibanda Nahamya

J U D G E

04^th November 2013