Wakilii

Bakulha & 48 Others v Uganda (Miscellaneous Application 17 of 2022; Miscellaneous Application 18 of 2022)

High Court · [2022] UGHCICD 8 · 2022 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated bail applications under Article 23(6)(a) of the Constitution and Rule 2 of the Criminal Procedure (Application) Rules, arising from HCT-ICD-SC-0011-2018
Decision
Six applicants (aged 56–74 years) released on bail with conditions. Remaining forty-three applicants denied bail and to remain in custody pending trial.

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Holding

The High Court held that while the right to apply for bail is automatic under the Constitution, the grant of bail is discretionary and must balance individual liberty against societal interests. Only six applicants were granted bail on grounds of advanced or approaching advanced age. The court dismissed bail for the remaining forty-three applicants, finding that they had not proved exceptional circumstances to the required standard and that the gravity of the multiple capital offences charged, combined with the volatile security situation in the Rwenzori region and the high likelihood of reoffending, outweighed their liberty interests pending trial.

Outcome

Six applicants (aged 56–74 years) released on bail with conditions. Remaining forty-three applicants denied bail and to remain in custody pending trial.

Facts

Forty-nine applicants arrested in November 2016 from Buhikira Royal Palace in Kasese District were jointly charged with 220 other accused persons in fifty-six counts including treason, terrorism, twenty-seven counts of murder, attempted murder, aggravated robbery, and kidnapping with intent to murder. The applicants had been on remand since 2016. Of the 220 accused persons, 132 had previously been granted bail without prosecution objection after a security risk assessment found they posed no threat. The prosecution objected to the present applicants' bail on grounds that they presented a high security risk, the offences were extremely serious, and the Rwenzori region remained volatile. The applicants argued they had been on remand for six years, had substantial sureties, had fixed places of abode, and suffered from various ailments requiring treatment. The court heard the application at Jinja Main Prison where the applicants were detained.

Issues

  1. Whether the applicants satisfied the exceptional circumstances requirement under Trial on Indictments Act s.15(1)(a) justifying release on bail.
  2. Whether the applicants proved they would not abscond if granted bail under Trial on Indictments Act s.15(1)(b).
  3. Whether the public security concerns and volatile situation in the Rwenzori region warranted refusal of bail.

Orders

  • Bail granted to Kule Eriya Sibendire alias Muleju (8th applicant, 74 years), Bahangondi Daudi (40th applicant, 70 years), Bwambale Bahingana (22nd applicant, 66 years), Regheya Masereka Julius (9th applicant, 58 years), Yowas Wasesera (32nd applicant, 57 years), and Thagembwa Joram (36th applicant, 56 years).
  • Each applicant to be bound by own recognizance of UGX 10,000,000 (not cash).
  • Sureties to execute bonds of UGX 10,000,000 each (not cash).
  • Applicants to report monthly on the last Friday of each month to respective magisterial areas until conclusion of trial, effective 27 January 2023.
  • Applicants to provide national identity card and LC I introductory letter on first reporting visit.
  • Bail dismissed for the remaining forty-three applicants.
  • Pre-trial hearing of HCT-ICD-SC-0011-2018 to be concluded by end of March 2023.
  • Deputy Registrar of ICD, prosecution, and defence directed to make necessary preparations to achieve the March 2023 deadline.

Rules and key headnotes

Bail — Exceptional Circumstances — Grave Illness — Standard of Proof
Under Trial on Indictments Act s.15(3)(a), grave illness as an exceptional circumstance justifying bail must be certified by a medical officer of the prison or institution where the accused is detained as being incapable of adequate medical treatment while in custody. A general medical report describing the health status of a group of prisoners without individual examination or certification, and without stating that the ailments cannot be managed in prison, does not satisfy this statutory requirement.
Bail — Exceptional Circumstances — Advanced Age
Under the Bail Guidelines for Courts of Judicature (Practice) Directions 2022 paragraph 4, advanced age is defined as sixty years and above. However, the court retains discretion to grant bail to applicants approaching this threshold where they appear elderly upon assessment and have been on remand for an extended period.
Bail — Likelihood of Absconding — Fixed Place of Abode
Contradictions between an applicant's stated places of abode in different sworn affidavits and oral testimony constitute evidence that the applicant does not have a fixed place of abode within the jurisdiction of the court. This weighs against the grant of bail as it poses a challenge to the court's ability to trace the applicant if necessary, and cannot be cured solely by the availability of substantial sureties.
Bail — Constitutional Right to Apply — Discretion to Grant
While Article 23(6)(a) of the Constitution grants an arrested person an automatic and entrenched right to apply for bail, the grant of bail is not automatic but discretionary. The court must balance the constitutional rights of the accused with the needs of society to be protected from lawlessness, weighing factors including the gravity of the offence, the severity of the potential sentence, the risk of absconding, and the likelihood of interfering with witnesses or reoffending.
Bail — Gravity of Offence — Multiple Capital Charges
Where accused persons are charged with multiple serious and violent offences, most of which attract the maximum death penalty, and the offences were allegedly committed in a highly organized and coordinated manner resulting in multiple deaths, the gravity of the charges and the severity of potential sentences significantly heighten the temptation to abscond and justify requiring proof of exceptional circumstances before bail may be granted.
Liberty — Public Security — Balancing Individual Rights and Societal Interests
Under Article 126 of the Constitution, courts must exercise judicial power in conformity with the values, norms, and aspirations of the people. In bail applications, the court's duty is to balance the fundamental right to liberty of the accused with the greater public interest in security and protection from lawlessness. Where credible evidence exists of a volatile security situation and a high likelihood of reoffending or witness intimidation, the court may decline bail for the greater good of society, even where this curtails individual liberty.
Bail — Precedent — Distinguishing Previous Bail Grants to Co-Accused
The fact that co-accused persons in the same criminal matter were previously granted bail does not establish a binding precedent requiring the court to grant bail to all subsequent applicants. Each bail application must be considered on its own facts and circumstances. Applications are distinguishable where subsequent applicants are charged with additional multiple capital offences beyond those charged against the previously released co-accused, where the prosecution objected to the present applications but not the previous ones, and where a security risk assessment identified the present applicants as presenting a high threat to witnesses and security.

Legislation cited (24)

Cases cited (14)

  • Col. (Rtd) Dr. Kiiza Besigye v Uganda (Constitutional Reference No. 20 of 2005)
  • Igamu v Uganda (Criminal Miscellaneous Application No. 107 of 2013)
  • Foundation for Human Rights Initiative v Attorney General (Constitutional Petition No. 20 of 2006)
  • Wepukhuli Nuguli v Uganda (Criminal Application No. 21 of 2001)
  • Tigawalana Bakali Ikoba v Uganda (Criminal Application No. 23 of 2013)
  • Obey Christopher and Others v Uganda (Miscellaneous Application Nos. 045, 046 and 047 of 2015)
  • Dr. Ismail Kalule and 3 Others v Uganda (Criminal Miscellaneous Applications No. 57, 58, 59, 60 of 2010)
  • Panju v Republic [1973] E.A 282
  • Kizza Besigye v Uganda (Criminal Application No. 83 of 2016)
  • Kizza Besigye & Others v Uganda (Criminal Miscellaneous Applications No. 228 and 229 of 2005)
  • Uganda (DPP) v Col. (Rtd) Dr. Kizza Besigye (Constitutional Reference No. 20 of 2005)
  • Foundation for Human Rights Initiative v Attorney General (Supreme Court Constitutional Appeal No. 03 of 2009)
  • Okello Augustine v Uganda (Criminal Miscellaneous Application No. 006 of 2012)
  • Masaba Geoffrey v Uganda (Criminal Miscellaneous Application No. 38 of 2016)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bakulha & 48 Others v Uganda (Miscellaneous Application 17 of 2022; Miscellaneous Application 18 of 2022) [2022] UGHCICD 8 (19 December 2022)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.