Wakilii

Sheikh Muhamad Yunusu Kamoga v Uganda (Criminal Application No. 77 of 2017)

Court of Appeal · [2018] UGCA 17 · 2018 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for bail pending appeal against conviction and sentence for terrorism
Decision
Application for bail pending appeal dismissed; record of proceedings ordered to be produced expeditiously to enable the appeal to proceed

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Holding

The Court dismissed the application for bail pending appeal by a person convicted of terrorism and sentenced to life imprisonment. It held that upon conviction the presumption of innocence under article 28(3)(a) of the Constitution ends, shifting the burden to the applicant to show exceptional circumstances and an overwhelming likelihood of success on appeal. Given the severity of the sentence, the nature of the offence, and the absence of a memorandum or record of appeal, the applicant failed to demonstrate an overwhelming chance of success. Advanced age and serious illness were insufficient absent evidence the condition could not be managed in prison. The Court instead directed expedited preparation of the record.

Outcome

Application for bail pending appeal dismissed; record of proceedings ordered to be produced expeditiously to enable the appeal to proceed

Facts

On 21 August 2017 the applicant, a Muslim cleric aged 66, was acquitted of murder and attempted murder but convicted of terrorism under the Anti-Terrorism Act and sentenced to life imprisonment by the High Court International Crimes Division. He filed a notice of appeal and repeatedly requested the record of proceedings, which had not been availed nearly a year later. He applied for bail pending appeal, relying on advanced age, substantial sureties, a serious medical condition (hypertensive heart disease, chronic gastritis, obesity), plausible grounds of appeal with a high likelihood of success, and possible substantial delay in hearing the appeal. He argued the terrorism conviction was centred on the murder counts of which he had been acquitted. The State opposed, contending the likelihood of success was speculative absent a memorandum or record of appeal, that the offence involved personal violence, and that the life sentence created a high risk of absconding. A co-convict, Sheikh Siraje Kawooya, had earlier been denied bail on the same facts.

Issues

  1. Whether the applicant, a convicted person, continues to enjoy the presumption of innocence pending appeal.
  2. Whether the applicant satisfied the conditions for the grant of bail pending appeal, in particular an overwhelming likelihood of success of the appeal.
  3. Whether the applicant's advanced age and medical condition constituted exceptional circumstances warranting bail pending appeal.

Orders

  • Application for bail pending appeal dismissed.
  • The Registrar of the International Crimes Division directed to produce the record of proceedings within 40 days.
  • Order to be served on the Chief Justice to give directions for expediting preparation of the record under rule 64(7).
  • Appeal to be fixed for hearing expeditiously.
  • Record to be availed to the applicant to lodge his intended memorandum of appeal.

Rules and key headnotes

Presumption of Innocence — Extinction upon Conviction — Article 28(3)(a)
Under article 28(3)(a) of the Constitution, the presumption of innocence lasts only until a person is proved guilty or pleads guilty; upon conviction it ends, and the burden shifts to the convicted person to show cause why the conviction should be set aside.
Bail Pending Appeal — Burden and Standard — Overwhelming Likelihood of Success
An applicant for bail pending appeal bears a higher burden than an applicant for bail pending trial and must demonstrate exceptional or unusual circumstances, including an overwhelming probability that the appeal will succeed, because the conviction is presumed to have been proper.
Bail Pending Appeal — Assessment of Prospects — Necessity of Record and Memorandum
The likelihood of success of an intended appeal cannot ordinarily be conclusively determined in the absence of a memorandum of appeal and record of proceedings, and mere reliance on the trial judgment does not establish an overwhelming chance of success.
Bail Pending Appeal — Severity of Sentence and Risk of Absconding
The longer the term of imprisonment, the greater the likelihood that a convicted applicant will abscond; a sentence of life imprisonment weighs heavily against the grant of bail pending appeal.
Bail Pending Appeal — Ill-Health and Advanced Age as Exceptional Circumstances
Advanced age or ill-health per se does not justify bail pending appeal; an applicant must show that the medical condition cannot be adequately managed in prison, and it is the duty of the prison authorities to evacuate a prisoner for treatment where necessary.
Terrorism — Ingredients of the Offence — Distinction from Murder
The offence of terrorism under section 7 of the Anti-Terrorism Act has ingredients distinct from murder or attempted murder and is committed where any prohibited act, including threatened murder or maiming, is carried out for the requisite purpose; acquittal of murder does not preclude conviction for terrorism.

Legislation cited (15)

Cases cited (22)

  • Arvind Patel v Uganda (Criminal Application No. 1 of 2003)
  • Igamu Joanita v Uganda (Criminal Application No. 0107 of 2013)
  • Kyeyune Mitala Julius v Uganda (Miscellaneous Application No. 4 of 2017)
  • Sheikh Siraje Kawooya v Uganda (Criminal Application No. 86 of 2017)
  • Raghbir Singh Lamba v R [1958] 1 EA 337
  • Girdhar Dhanji Masrani v R [1960] 1 EA 320
  • Chimambhai v Republic (No. 2) [1971] 1 EA 343
  • David Chandi Jamwa v Uganda (Criminal Application No. 20 of 2011)
  • Kaguma v Republic [2004] 1 EA 68
  • Karanja v Republic [1986] KLR 612
  • Somo v Republic [1972] 1 EA 476
  • Sande Pande Ndimwibo v Uganda (Miscellaneous Application No. 241 of 2014)
  • Ekusia Joseph v Uganda (Criminal Application No. 69 of 2016)
  • Ramanlal Trambaklal Bhatt v R [1957] 1 EA 332
  • John Kashaka Muwanguzi v Uganda (Criminal Reference No. 797 of 2014)
  • Busiku Thomas v Uganda (Criminal Appeal No. 33 of 2011)
  • Teddy Sseezi Cheeye v Uganda (Miscellaneous Criminal Appeal No. 37 of 2009)
  • Kabaza Jackson v Uganda (Criminal Application No. 097 of 2016)
  • Susan Kigula and Others v Uganda (Constitutional Appeal No. 3 of 2006)
  • R v Foy [1962] 2 All ER 245
  • Tigo Stephen v Uganda (Criminal Appeal No. 08 of 2009)
  • Ssekawoya Blasio v Uganda (Criminal Appeal No. 24 of 2014)

Full judgment

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

Sheikh Muhamad Yunusu Kamoga v Uganda (Criminal Application No. 77 of 2017) [2018] UGCA 17 (18 May 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.