Wakilii

Makokha Samuel and Others v Uganda (Criminal Miscellaneous Application 24 of 2024)

High Court · [2024] UGHCICD 17 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Bail application from 36 applicants jointly charged with terrorism in the Chief Magistrates Court at Nakawa and remanded pending committal to High Court for trial
Decision
All 36 applicants granted bail under specified conditions pending committal and trial

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court granted bail to all 36 applicants charged with terrorism, holding that the right to bail under Article 23 of the Constitution and the presumption of innocence under Article 28(3) require that applicants not be detained unreasonably pending trial. The court found that the prosecution had not established exceptional circumstances to deny bail, that all applicants except one had fixed places of abode within Uganda, that each applicant had produced substantial sureties, and that the prosecution's reliance on ongoing investigations did not outweigh the applicants' constitutional rights. The court imposed conditions including cash bonds, surrender of passports, monthly reporting, and a six-month deadline for the prosecution to complete committal proceedings.

Outcome

All 36 applicants granted bail under specified conditions pending committal and trial

Facts

The 36 applicants were jointly charged with one count of terrorism contrary to Section 6(1)(b) and 2(b) of the Anti-Terrorism Act, with particulars alleging that between 22 and 23 July 2024, they travelled from various places in Uganda to Kisumu in Kenya to provide or receive terrorist training. The applicants were arrested on 23 July 2024 at Ukweri Catholic Pastoral Centre in Kisumu during what they assert was a leadership workshop. They were arraigned before the Chief Magistrates Court at Nakawa on 29 July 2024 and remanded to Kitalya Mini Max Prison and Luzira Women's Prison. At the time of the bail application hearing, the applicants had been on remand for over four months without being committed to the High Court for trial. The second applicant is a recognised refugee in Kenya. The prosecution opposed bail on grounds that investigations were incomplete, that the applicants lacked fixed places of abode and substantial sureties, and that they posed a flight risk.

Issues

  1. Whether the applicants should be released on bail pending committal and trial on terrorism charges.
  2. Whether the applicants have substantial sureties to ensure their attendance in court.
  3. Whether the applicants have fixed places of abode within the jurisdiction of the court.
  4. Whether granting bail would interfere with ongoing investigations or compromise the interests of justice.

Orders

  • Application for bail granted.
  • Each applicant shall execute a cash bond of two million shillings (UGX 2,000,000).
  • Each surety shall execute a non-cash bond of fifty million shillings (UGX 50,000,000).
  • The applicants must deposit their passports and/or travel documents with the Deputy Registrar of the High Court for safekeeping.
  • The applicants are prohibited from travelling outside Uganda without prior permission from the High Court.
  • The Deputy Registrar shall inform the immigration authorities of the restrictions and conditions placed on the applicants' travel.
  • Each applicant must report to the Deputy Registrar once a month, with the first reporting date due one month from their release date.
  • The applicants must report to the High Court for six months from 12 November 2024.
  • The Office of the Director of Public Prosecutions will prepare committal papers for the applicants' trial within six months.
  • If the applicants are not committed for trial within six months from 12 November 2024, they and their sureties will automatically be released from all terms and conditions of this bail release.

Rules and key headnotes

Right to Bail — Presumption of Innocence — Court's Discretion
The court has discretionary power to grant bail under Section 15 of the Trial on Indictments Act, and an accused person is not required to prove exceptional circumstances to justify release on bail. The constitutional right to bail under Article 23 and the presumption of innocence under Article 28(3) of the Constitution mean that an applicant should not be deprived of freedom unreasonably, and bail should not be refused merely as punishment.
Bail — Seriousness of Offence — Not Determinative
The seriousness of an offence, including capital offences or offences carrying life imprisonment, does not in itself justify denial of bail. Courts should favour the liberty of the accused provided that the interests of justice are not compromised. The fundamental principle for releasing an applicant on bail is the presumption of innocence.
Bail — Substantiality of Sureties — Socio-Economic Context
The role of a surety goes beyond the ability to forfeit the bond. Bail is not designed as an income-generating avenue for courts. What is pertinent is that sureties have been advised of their roles, have identified themselves properly, and have shown authoritative relationships with the accused demonstrating they can command the accused's appearance in court when needed. Requiring documentary evidence of financial capacity to meet monetary obligations would discriminate against sections of society unable to produce such evidence due to informal employment, contrary to Article 21 of the Constitution.
Bail — Ongoing Investigations — Insufficient Ground for Denial
Claims that releasing an accused on bail would interfere with ongoing investigations must be substantiated with evidence. Mere allegations, fears, or suspicions are insufficient. If courts make decisions based solely on such unsubstantiated allegations, bail could never be granted whenever the respondent raises concerns about witness interference. Incomplete investigations cannot override an applicant's constitutional right to civil liberties as enshrined in the Bill of Rights.
Refugee Status — Non-Refoulement — Bail Considerations
A recognised refugee holding a valid refugee identity card issued by the government of Kenya triggers non-refoulement protection under the 1951 Refugee Convention, the 1969 Convention Governing Specific Aspects of Refugee Problems in Africa, and domestic refugee legislation. The absence of an introductory letter from the LC1 Chairperson regarding a refugee applicant's residence in Kenya, when considered alongside other factors for bail, is not detrimental to the application given the refugee's protected status and the constitutional presumption of innocence and right to liberty.
Trial Delays — High Court Supervisory Jurisdiction — Abuse of Process
Section 17 of the Judicature Act grants the High Court authority to exercise general supervision over magistrates' courts and to utilise its inherent powers to prevent abuses of the legal process, including addressing delays in trials and limiting or discontinuing delayed prosecutions. The prosecution's duty to complete investigations promptly is enforceable, and the High Court may intervene by imposing deadlines for completing investigations, granting bail, or discharging the accused if delays are unjustified. Prolonged detention on remand while the prosecution continues to gather evidence to address gaps in its case is unjust.

Legislation cited (22)

Cases cited (9)

  • Uganda v Dr Kizza Besigye (Constitutional Reference No. 20 of 2005)
  • Foundation for Human Rights Initiative v Attorney General (Constitutional Appeal No. 3 of 2009)
  • Abacha Yassin v Uganda (Criminal Miscellaneous Application No. 4 of 2016)
  • Musijjo Asuman v Uganda (HCT-00-ICD-0019-2018)
  • Kiwanuka John v Uganda (Criminal Miscellaneous Application No. 213 of 2013)
  • Omusinga Charles Wesley Mumbere v Uganda (Criminal Miscellaneous Application No. 75 of 2016)
  • Kigongo Faruq v Uganda (Criminal Miscellaneous Application No. 7 of 2024)
  • Panjur v R (1973) EA 232
  • Foundation for Human Rights Initiatives v Attorney General (Constitutional Petition No. 020 of 2006)

Full judgment

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

Makokha Samuel and Others v Uganda (Criminal Miscellaneous Application 24 of 2024) [2024] UGHCICD 17 (12 November 2024)
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.