Wakilii

Uganda v No. RA 233382 Pte. Mugisa alias ofatum and 2 Others (Criminal Session 299 of 2019)

High Court · [2022] UGHCCRD 5 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by prosecution to proceed with trial in absence of two accused persons who absconded
Decision
Application dismissed; prosecution directed to amend indictment or enter nolle prosequi

Observed later treatment

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Holding

The High Court held that Article 28(5) of the Constitution, which permits trial in the absence of an accused who misconducts himself, applies only after a trial has commenced following a plea. Where accused persons have not taken plea, they remain presumed innocent under Article 28(3)(a) and cannot be tried in absentia. The prosecution's application to proceed with trial in absence of two accused who absconded before plea was dismissed.

Outcome

Application dismissed; prosecution directed to amend indictment or enter nolle prosequi

Facts

Three accused persons were indicted for aggravated robbery alleged to have occurred on 18 April 2018 at Kigarama Cell, Kabarole District. A1 (Mugisa Francis) was granted bail on 19 December 2019 with two sureties binding themselves for UGX 5,000,000. A1 initially reported monthly as required but stopped appearing after June 2021. A3 (Kamanyire Gerald) escaped from lawful custody on 19 September 2018 when boarding a bus back to prison and remained at large. A2 (Mwesige Charles) also escaped but was re-arrested. The prosecution applied to proceed with trial in absence of A1 and A3, arguing they had placed themselves under the exception in Article 28(5) of the Constitution by absconding. Defence counsel objected on grounds that no reasonable steps had been taken to summon A1 through his sureties and that the application was premature as the accused had not yet taken plea.

Issues

  1. Whether the court has discretion to proceed with the trial of accused persons in their absence where one jumped bail and another escaped from lawful custody before taking plea.
  2. Whether Article 28(5) of the Constitution applies to permit trial in absentia where the accused have not yet taken plea and the trial has not commenced.

Orders

  • Application to proceed with trial in absence of A1 and A3 dismissed.
  • Warrant of arrest issued against A1 (Mugisa Francis) and his sureties Adoc Mary Mugisa and Imuliut Moses to show cause why they should not be committed to civil prison or pay UGX 5,000,000.
  • Warrant of arrest issued against A3 (Kamanyire Gerald).
  • Prosecution directed to either amend the indictment under section 50(2) of the Trial on Indictments Act or enter a nolle prosequi under section 134 of the Trial on Indictments Act.

Rules and key headnotes

Trial in Absentia — Constitutional Requirements — Commencement of Trial
Article 28(5) of the Constitution permits trial in the absence of an accused only where the trial has commenced and the accused misconducts himself or herself so as to render continuance of proceedings in that person's presence impracticable. The provision does not apply where the accused has not taken plea and the trial has not commenced.
Fair Trial Rights — Presumption of Innocence — Pre-Plea Stage
Under Article 28(3)(a) of the Constitution, every person charged with a criminal offence is presumed innocent until proved guilty or until that person has pleaded guilty. Where accused persons have not taken plea, they remain presumed innocent and cannot be tried in absentia regardless of whether they have absconded.
Bail — Enforcement Against Sureties — Warrant of Arrest
Where an accused person granted bail with sureties absconds, the court may issue a warrant of arrest against both the accused and the sureties requiring them to show cause why they should not be committed to civil prison if they cannot produce the accused or pay the sum for which they bound themselves.
Trial in Absentia — Judicial Discretion — Competing Interests
While courts have discretion to continue a trial in the absence of an accused, this discretion must be exercised cautiously, weighing the right of the accused to a fair trial against the public interest in the administration of justice not being unnecessarily impeded. The discretion exists only where the trial has commenced.

Legislation cited (8)

Cases cited (7)

  • Uganda v Gulindwa Paul and Tumusiime (HCT-00-AC-CM-0005-2015)
  • Ekbatani v Sweden (1988) 13 EHRR 509
  • Colozza V Italy
  • Lawrence v The King [1933] AC 699
  • Regina v Johns [1972] 1 WLR 887
  • Diaz v United States 223 US 442 (1912)
  • The Queen v Antonios Mokbel [2006] VSC 520

Full judgment

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

Uganda v No. RA 233382 Pte. Mugisa alias ofatum and 2 Others (Criminal Session 299 of 2019) [2022] UGHCCRD 5 (17 February 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.