Wakilii

Kalule v Uganda (Criminal Miscellaneous Application No. 001 of 2018.)

High Court · [2018] UGHCICD 1 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for bail pending trial at the High Court following committal for trial on terrorism charges
Decision
Applicant granted bail pending trial with conditions

Observed later treatment

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Holding

The High Court granted the applicant bail pending trial on terrorism charges. The court held that while the charges are serious and triable only by the High Court, the applicant was not required to prove exceptional circumstances where he had been on remand for over one year since committal and the committal file had not been delivered to the ICD. The court was satisfied the applicant would not abscond based on his prior compliance with bail conditions, fixed place of abode, family ties, and the presence of substantial sureties.

Outcome

Applicant granted bail pending trial with conditions

Facts

The applicant, Dr. Ismail Kalule, was arrested on 26 May 2016 at the High Court Criminal Division following his acquittal on terrorism and murder charges. He was detained at Nalufenya Police Station. On 2 June 2016 he was charged before the Chief Magistrate's Court at Jinja with two counts: terrorism contrary to Section 7(1) and (2)(w) of the Anti-Terrorism Act 2002, and conspiracy to commit terrorism contrary to Section 25 of the same Act. The Chief Magistrate ordered remand at Kirinya Prison but the applicant claims he was returned to Nalufenya and held there for several months. He was eventually remanded at Luzira Government Prison. On 19 December 2016 he was committed for trial by the High Court. By the date of this application (15 February 2018), one year one month and twenty-five days had elapsed since committal. The committal file had not been received by the International Crimes Division from the Chief Magistrate's Court, and the applicant's case had not been registered at the ICD Registry. The applicant applied for bail. He had previously been granted bail in a different terrorism case and had complied with all bail conditions. He is a medical doctor, married with four school-going children, and has a fixed place of abode at Kiwatule. The prosecution objected but presented no evidence of danger to the public, likelihood of absconding, or risk of interference with witnesses or the investigation.

Issues

  1. Whether the applicant should be granted bail pending trial on charges of terrorism triable only by the High Court.
  2. Whether the applicant is required to prove exceptional circumstances under Section 15 of the Trial on Indictments Act to be granted bail.
  3. Whether the proposed sureties are substantial and sufficient to ensure the applicant's attendance at trial.
  4. Whether the applicant has demonstrated that he will not abscond if released on bail.

Orders

  • Application allowed.
  • Applicant to be released on bail subject to conditions.
  • Applicant to enter an undertaking with the Registrar, ICD, in the amount of UGX 20,000,000 (not cash) guaranteeing attendance at trial.
  • Each of the three sureties to enter an undertaking with the Registrar, ICD, in the amount of UGX 10,000,000 (not cash) guaranteeing the applicant's attendance at trial.
  • Applicant to surrender his passport to the Registrar (ICD) within one week from the date of the order.
  • Applicant to report to the Registrar (ICD) twice every month on every second Tuesday and every last Tuesday of the month.
  • Applicant to be disciplined, humble and co-operate with security officers carrying out surveillance work.
  • Applicant not to engage in rhetoric or make addresses causing public excitement, but may lead fellow Muslims in prayer using humble and sober language.
  • If applicant instructs students or adults in religious matters, he must allow security officers to monitor his teachings and surrender teaching materials to security organs when requested.
  • Applicant to restrict visitors to his place of residence and be prepared to identify any visitor to security officers when called upon.

Rules and key headnotes

Bail — Terrorism offences triable only by High Court — Statutory period of 180 days — Requirement to prove exceptional circumstances
An accused person charged with an offence triable only by the High Court under the Anti-Terrorism Act 2002 may apply for bail under both Section 6 of that Act and Section 14(1) of the Trial on Indictments Act. Where the accused has not pleaded exceptional circumstances under Section 15(3) of the Trial on Indictments Act, the court's primary consideration is whether the accused will attend trial and not abscond, in light of the constitutional presumption of innocence and the right to apply for bail under Article 23(6)(a) of the Constitution.
Right to bail — Article 23(6)(a) of the Constitution — Applicability to all criminal offences without exception
Article 23(6)(a) of the Constitution applies to every person awaiting trial for a criminal offence without exception. 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 of the class of criminal offence for which the person is charged. Refusal of bail must not be used as punishment or to deprive one of liberty unreasonably.
Bail — Burden of proof — State's duty to present evidence in objection to bail
Where the prosecution opposes a bail application on grounds such as danger to the public, likelihood of absconding, or risk of interference with witnesses or investigation, the prosecution must present specific evidence to the court supporting those concerns. General or vague assertions without supporting evidence are insufficient to satisfy the court that the applicant should be refused bail.
Bail — Assessment of sureties — Independence and financial capacity
In assessing the suitability of proposed sureties, the court must consider whether they are independent and whether they are likely to be indemnified by the accused. A biological mother, while having sufficient nexus to the accused, may be disqualified as a surety where her advanced age renders her vulnerable and erodes her independence, such that she cannot independently meet the cash requirements of a bond without recourse to the accused.
Bail — Factors for granting bail in terrorism cases — Prior compliance with bail conditions
In determining whether to grant bail in a case involving terrorism charges, the court may consider the applicant's prior conduct when previously released on bail in a similar case. Evidence that the applicant duly complied with previous bail conditions and attended court as required is relevant to the assessment of whether the applicant will abscond if released.

Legislation cited (19)

Cases cited (4)

  • Uganda (DPP) v Col. (Rtd.) Dr. Kiiza Besigye (Constitutional Reference No. 20 of 2005)
  • His Majesty Omusinga Mumbere Charles Wesley v Uganda (High Court Criminal Miscellaneous Application No. 075 of 2016)
  • Attorney General v Tumushabe (2008) EA 26
  • Okello Augustine v Uganda (Criminal Miscellaneous Application No. 006 of 2012)

Full judgment

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

Kalule v Uganda (Criminal Miscellaneous Application No. 001 of 2018.) [2018] UGHCICD 1 (10 April 2018)
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.