THE REPUBLIC OF UGANDA SE REPUBLIC OF UGANDA © IN THE HIGH COURT OF UGANDA AT KAMPALA 7 LEANOUS CRIMINAL APPLICATION NO. 41 OF 2005, ng from Buganda Road Chief Magistrate’s Court Criminal _ Case No. 497 of 2005 DR. AGGREY KIYINGI VERSUS UGANDA: - OKELLO BEFORE HON. LADY JUST! RULING This application was brought by Dr. Aggrey Kiyingi for order of thig court releasing him on bail pending disposal of a criminal case’ preferred against him, That case is currently before the Chief Magistrate’s Court of Buganda Road. The application which is by Notice of Motion, is brought under the provisions of Article 23 (6) (a) and 28 (3) (a) of the Constitution, Sections 14 and 15(1) (b) and (c) of the Trial on Indictments Act (Cap 23). It is supported by two affivavits, one of which js headed “affidavit” sworn by the applicant on the 22.7.2005, and the second one, headed “affidavit in rebuttal” that was swom on the 15.8.2005, The Brounds of the application are detailed in the affidavits but are, Suinmatised in the Notice of Motion. The said grounds can briefly be stated as follows: I. The applicant has a constitutional tight to be considered for the grant of bailThere are exceptional cireumstances justifying the grant of bail. 3, The applicant satisfies other legal requirements for the grant of bail and he undertakes to abide by all conditions that may be imposed for bail ‘The respondent filed an affidavit in reply as well as a supplementary affidavit in reply sworn by James Habukiriro, a Detective Senior Superintendent of Police, on the 12” and 15" of August respectively. It is pertinent to say something about the history of this application. Its origin is traceable to the 19.7.2005 when the applicant and two other persons appeared before the Chief Magistrate’s Court of Buganda Road on a charge of murder contrary to Sections 188 and 189 of the Penal Code Act. The applicant and his co-accused were all remanded for lack of jurisdiction to take pleas and to take any substantive action in respect to the case. The applicant then filed the present application on the 25.7.2005. Mr. Henry Rwaganiia, James Muhumuza, and Andrew Munanurw represented the applicant at the hearing, Mr. Vincent Wagona Principal State Attorney, represented the State. Ms. Sylvia Mukasa Namubiru, a Senior Project Advocate working with Legal Aid Project of the Uganda Law Society, held a watching brief for the Society. I turn to the grounds of the application and the related submissions and arguments made therein by counsel for the parties.Mr. Muhumuza opened his arguments on grounds of the application with submissions concerning the jurisdiction that this court has over this bail application. The learned counsel pointed out that the laws felevant to this category of applications conferred on the High Court, the jurisdiction to hear and determine the application. Mr. Muhumuza referred, 10 inter alia, the provisions of Sections 14 and 15 of the Trial on Indictments Act (Cap 23) (TIA). Mr. Wagona appeared to agree. I entirely agree with the submissions on jurisdiction and therefore have nothing more to say concerning that aspect of the matter. The learned Mr. Muhumuza submitted further that the applicant has a constitutional right to apply for bail to be granted at the discretion of the court. For these submissions, the learned counsel drew the attention of the court to the provisions of Article 23 (6) (a) of the Constitution, Article 28 (3) (a) and Sections of the TIA already mentioned above. A number of cases wherein the provisions of the cited laws have previously been a Attorney General — respondent’s counsel agreed with both limbs of the submissions. There is no doubt that the Constitution in Article 23 (6) (a) of the Constitution gives an accused person the right to apply for bail. The same considers sui ould merely like to emphasise what both counsel agree upon that the discretion of the court is exercised in two stages. (i) The first discretion is to determine whether a particular application should be granted or not. (ii) If it is to be granted, then the next stage of the discretion is determining the kind of conditions 3 discussed were cited including pst pape Katto Vs Uganda = ‘ ingthe court considers reasonable to impose, This is clear from the language of Article 23 (6) (a) which provides: “Where a person is arrested in respect of a criminal offence- (a) the person is entitled to apply to court to be released on bail, and the court may grant that person bail on such conditions as the court considers reasonable;” [emphasis added]. As can be seen from the wordings of the Article, the right that an accused has under it, is the right to apply to court for bail. But the discretion to grant or to reject the application is that of the court. The bone of contention between the parties herein, however, is which way I should exercise the discretion conferred by Article 23(6) (a). For the applicant, it is argued that the discretion should be exercised in favour of allowing the application, while the respondent argued strenuously that the application should be rejected. Apart from grounds or reasons already examined, Counsel for the applicant has advanced several other reasons in support of arguments to rant bail 1. It has been argued that under Article Fe oe ee ost tle being the case, he should get bail till the substantive trial is concluded. Mr. Wagona did not directly answer this particular argument. {t should, be: observed: that-a. bail. application. is, not a tial on the substantive charge for wl evidencein the substantive charge is adduced, and the court does not make any pronouncements on the merits and demerits of the charge. It follows that the decision of the court in an application is not a pronouncement on guilt or innocence in the substantive charge. A court can therefore reject or grant bail without putting into jeopardy, the Constitutional presumption of innocence. Le this rape Es view is that the reference to the presumption of innocence in this gis misconceive Constitution itself recognises that a situation may arise in the course of a criminal case, when a suspect or an accused therein may have to be kept in custody before and during trial, Such provisions are contained in Article 23 (1) (©), (h) and (2). Article 23 (1) reads in part as follows: “No person shall be deprived of personal liberty except in any of the following cases”. The word “except” in the clause indicates that personal liberty is not an absolute right; it recognises that situations may arise when liberty may be curtailed. The situations are listed in the paragraphs that follow including paras (c), (h) and clause (2) et seq, The soos only. sais rey a criminal trial. Ty i le provisions of clause (8) of the same Article puts the matter beyond doubt, it i at where a person is convicted and sentenced.to.a,tetm. of, aeeoumer ie an offence, a Bey od spent.in.. lawful custody before completion of the trial shoul i meaning is clear. In the result, I find no fetters on this court’s discretionto either grant or refuse to grant bail. Rejection of a bail application and the presumption of innocence can c0-C%siog : 2. (a) It was further argued for the applicant that exceptional circumstances exist warranting his release on bail. The circumstances being: (i) he suffers from grave illness, (ii) he is of old age. In as far ill health is concemed, Mr. Muhumuza argued that the applicant suffers from hypertension and type 2 diabetes mellitus. The leamed Me, Muhumuza referred to the ease of Janet Mureeba Vs Uganda — (Mise. Application No.136/1999) to the effect that proof of exceptional circumstances is not necessary for the grant of bail. Mr. Wagona replied that grave illness is not proved because the evidence adduced falls short of that required by Section 15 (3) of the TIA in as much as the medical evidence relied upon is not from the prison where the applicant is being detained. Nor does it state that the ailment cannot be treated in that prison. : ' There is evidence that the applicant suffers from type 2 diabetes mellitus, but the evidence shows that the condition is being well managed on metformin and pioglitazone (actos). As type 2 diabetes is not insulin dependent, my findiig is that it can be managed while the applicant is in custody. No evidence was adduced to prove that the ppliceat suffers from hypertension, I can only take i that counsel for the applicant did not want to pursue that aspect of the application. But T ore tt Mr. der Section 15 (1) of the TIA bail ma: view, this is not a case in which bail can be granted without proof of exceptional circumstances, in this respect I find that either grave illness or old age should be proved.(b). The applicant relied on old age as a ground. It was argued for him that at the age of 51 years old, he is a person of advanced age under Section 15 (3) (c) of the TIA. As counsel for parties stated during their arguments, old age for the purposes of Section 15 (3) (a) of the TIA is not defined, the definition therefore has to be a matter of applying common sense to the facts or reliable information known about the applicant. In the present case, evidence for the applicant is to the effect that he was born in late October 1953. There is evidence that he is still practising as a cardiologist in Australia, has other professional commitments e.g. as visiting Senior Lecturer Makerere University, Managing Director of a computer company in Uganda, a promoter of not less than 8 community development initiatives in Uganda, Common sense would tell me that at 51, and to be that occupied with various types of work, this particulat applicant is far from being an old person. He-is still-young-in body, energetic, has stamina to engage in a lot of activities. He is relatively young, this is my finding based on some evidence contained in the applicant’s affidavits and inferences that can be made from the same 2vidence. The last of the grounds of the application that I would like to examine, is the ground of satisfaction of other conditions that would ensure the applicant’s preserice for his trial, i.e. no other charges pending against the applicant, presence of sureties etc. Mr. Muhumuza submitted that the applicant has a permanent place of abode at Plot 42 Lake Drive Road Luzira; he has five people who are ready and willing to stand as sureties for him, It was submitted that the applicant is a well-known person bothwithin and out side Uganda being a Cardiologist in Australia, a member of expert panel of a medical programme in the United States of America, a member of International Federation of Cardiologists, promoter of over 8 community local initiatives etc. The Principal State Attomey argued that the very fact that the applicant is an important person locally and internationally is a reason why his application should be rejected. The status would make it possible for him to leave the jurisdiction of this court never to return for his trial in case he is released. Mr. Wagona also argued that the applicant holds duel citizenships — that of Australia which he has disclosed to the police and in his application; and Ugandan citizenship which the applicant kept a secret. Counsel argued that as there is no extradition Treaty between Uganda and Australia, extraditing the applicant from Australia would pose a problem for Uganda if the applicant absconded. He prayed for more time to complete ongoing investigations. I am satisfied that the applicant has a place of abode at Luzira in Kampala, within the jurisdiction of this court, but he also has another abode in Australia. In fact, it appears from the evidence before this court that most of the immediate members of the applicant's faaily, live outside Uganda, i.e. in Australia, New Zealand and England. It appears to me in the circumstances that he has more affinity with Australia than Uganda, his connection with local community — organisations notwithstanding: as it appears that he is only a promoter of some of the organisations. There is evidence before me that has not been controverted, that the applicant holds a Ugandan Passport besides the Australian one, There isequally evidence that the existence of the Ugandan Passport was not brought to the attention of the officer investigating the case against the applicant. The learned Mr. Andrew Munanura tried ta down play the importance of the second Passport and its being kept a secret, I believe that the applicant's failure to disclose his dual citizenship, and the fact that he held himself out as a citizen of Australia only in this proceeding, should not be taken lightly. The concealment leads me to believe that the applicant wanted to mislead this court about the existence of other travel documents besides his declared passport, This belief coupled with my findings that he does not suffer from any grave illness, is not old, and has persuaded me that the applicant should remain in custody pending his trial. The respondent is urged to expedite investigations, and to take a decision on the way forward in the substantive case In the result, I am rejecting the application, and I dismissing it, I dismiss it. Bperilo C. A. Okello JUDGE 19.8.2005 19/8/2005 — 10.28 a.m. The applicant in court, Mr. H. Rwaganika for the applicant. Assisted by Mr. J. Muhumuza Ms. Alice Muhangi Senior State Attorney for respondent. Mr. Kato Sonko Court Clerk.C.A, Okello JUDGE 19/8/2005 Cou Ruling signed, dated and delivered ih open court No CA. ‘ORello JUDGE 19/8/2005