Court name
HC: International Crimes Division (Uganda)
Judgment date
8 January 2020

Ahamad Ssebuwufu v Uganda (HCT-OO-ICD-CM-2019/21) [2020] UGHICD 1 (08 January 2020);

Cite this case
[2020] UGHICD 1
Coram
Adonyo, J

IN THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA – AT KAMPALA

HOLDEN AT INTERNATIONAL CRIMES DIVISION

HCT-00-ICD-CM-0021-2019

 

AHAMAD SSEBUWUFU :::::::::::::::::::::::::::::::::::::::::::        APPLICANT

V E R S U S

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

 

 

BEFORE: HON. DR. JUSTICE HENRY PETER ADONYO

 

RULING

 

  1.  

The Applicant has applied to this Court for orders to be released on bail pending trial. He was indicted with the offences of belonging to a terrorist organization contrary to Section 11 (1) (A) and 11 (3) Of The Anti-Terrorism Act, 2002 and Aiding, Abetting or Financing or Harboring Acts of Terrorism Contrary to Section 8 of The Anti-Terrorism Act 2002. He is awaiting trial before this Honourable Court.

The Applicant brings this application under Article 23 (6) (a) of the Constitution of the Republic of Uganda (As Amended), Section 14 (1) of The Trial On Indictment Act Cap.23 and Rule 2 of The Judicature, (Criminal Procedure) (Applications Rules) S. I 13.

During the hearing of this application, The Applicant was represented by Learned Counsel Turyamusiima Godfrey assisted by Ms. Lydia Mwebaza whilst the Respondent was represented by Ms. Marion Ben Bella, State Attorney. Mr. Lino Anguzu, an Assistant Director of Public Prosecution, argued the case of the Respondent.

  1. Grounds of Application:

The main grounds for the Application as set out in the Notice of Motion and the Applicant’s Affidavit are as follows;

  • That on September 15 2018, the Applicant was arrested from his work place by intelligence officers (CMI) and detained at a safe house in Mbuya for more than a month, where he was kept and denied access to his family.
  • That he was later informed that he would only be released once they got the information which they wanted from him. Instead the applicant was produced before Nakawa Chief Magistrates Court where he was charged with the offences of belonging to a terrorist organization c/s 11 (1) (a) and 11 (3) of the Anti-Terrorism Act, 2002; and Aiding and abetting or financing or harbouring acts of terrorism c/s 8 of the Anti-Terrorism Act 2002.
  • That he was committed for trial on the 31st May 2019
  • That the Applicant has patiently waited for the trial of his case to start since then in vain, and owing to the busy schedule of the court, he is not certain when his trial will commence.
  • That all the offences charged against the applicant are bailable by this honorable court
  • That the applicant is presumed innocent until proved guilty and his continued detention is a violation of the same right.
  • That the applicant has a fixed place of abode within the jurisdiction of this honorable court and shall not abscond when granted bail
  • That the applicant has substantial sureties within the jurisdiction of the court and shall not abscond when granted bail.

In his affidavit in support of the application, the applicant, also states that he has a fixed place of abode at Mutundwe, Makindye, Ssabagabo in Kampala District. He attached a letter from the Area LC I Chairman (Annexture A) and a copy of the certificate of title comprise in Mengo, Kyaddondo, Block 264, Plot 1456, land at Mutundwe (Annexture D) and averred that he will reside here if released on bail (See paragraph 11 and 12); that he has substantial sureties within the jurisdiction of the court. (See paragraph 13). He also averred that he has 11 children aged between two years and twenty years who are all dependent on him.  (See paragraph 15)

Mr. Tworekirwe Wilbern Batura, a Detective AIP attached to the Special Investigations Division swore an affidavit opposing the application for bail.     Paragraphs 3 to 5 of his affidavit is similar in content and repeats those made by the Applicant in his affidavit cited above. I will not repeat them.  However, in paragraphs 6, 8 and 9 Mr. Tworekirwe avers that the offences with which the applicant is charged with are very grave and carry a maximum sentence of death; that the applicant does not have a clear permanent place of abode as he claims and lastly that he does not have sound and substantial sureties within the jurisdiction of the court. Furthermore, Mr. Tworekirwe averred in paragraph 10 that there is evidence to prove that the applicant was involved in transmitting funds for the purpose of terrorism activities which justifies the reason for his detention. He thus opposed the grant of this application.

  1.  

Counsel for the Applicant urged this Honourable court to grant the Applicant bail on the basis the applicant has been since in custody for a long time with no trial date for his case set and that Article 23 (6) (a) of the Constitution of the Republic of Uganda (As Amended) which provides that :“…Where a person is arrested in respect of a criminal offence- the person is entitled to apply to Court to be released on bail, and the Court may grant that person bail on such conditions as the Court desires reasonable” recognizes his right to apply for and be granted bail premised on the presumption of that the Applicant is innocent until proved guilty or until that he pleads guilty which constitutional presumption of innocence is provided for by Article 28 (3) (a) of the Constitution which states:

“Every person who is charged with a criminal offence shall-

  • Be presumed innocent until proved guilty or until that person has pleaded guilty…”

Further it was submitted that the rationale of the right to grant of bail is based on the that an accused could be released on bail so long as he or she can prove to court that he or she has a fixed place of abode and that he or she has sound sureties who will ensure the attendance of court by the suspect of his or her trial whenever required.

Additionally that Section 14 (1) of the Trial on Indictment Act allows a High Court to grant bail to an accused person for it provides that;

“… The High Court may at any stage in the proceedings release the accused person on bail, that is to say, on taking from him or her a recognizance consisting of a bond, with or without sureties, for such an amount as is reasonable in the circumstances of the case, to appear before the Court on such a date and at such time as is named in the bond.”

Counsel for the Applicant informed the court that indeed he was alert to the provisions of Section 15 (1) of the Trial on Indictment Act on the other hand which the High Court may use to refuse to release an accused person on bail where exceptional circumstances exist to justify his or her release to bail but informed the court that this particular provision was constitutionality challenged in court in the case of Foundation for Human Rights Initiative v Attorney General (2008) AHRLR 235 where the Constitutional Court held that this requirement was but regulatory with the Constitutional Court in the case of DPP v Col. (Rtd) Dr. Kizza Besigye Constitutional Reference No. 20 of 2005 (unreported) going on to state that bail should not be refused mechanically simply because the State wanted such a situation but that the court had the discretion to so grant bail which power ought to be exercised judiciously.

Further, counsel pointed out that in the case of Dr. Ismail Kalule vs Uganda ICD Criminal Miscellaneous Application No. 001/2018, indeed the requirement for an accused person to furnish exceptional circumstances in order to be granted bail was held to be not the most relevant sole consideration for which an Application may be granted bail but that a court while considering whether or not an accused person should be granted bail must satisfy itself that the accused once granted bail will not or is likely to abscond from his or her trial taking into account two factors only of;

  • Whether the accused person has a fixed place of abode within the jurisdiction of the Court or is ordinarily resident outside Uganda
  • Whether the accused has sound sureties within the jurisdiction to undertake that the accused shall comply with his or her bail.

In support of his application, the Applicant informed court that he was a person resident within the jurisdiction of this court being that he had his place of abode at Mutundwe, Makindye-Ssabagabo in Wakiso District where he was resident and was the owner of the private mailo piece of land of the place of his abode which even registered in his names on 25th day of November, 2009. He tendered in an original land title in his names showing the fact that the said piece of land was situated at Mutundwe Mengo Block 264 Plot 1456. In addition, he tendered a National identity card NIN CM76098100W0EC to identify himself and an introductory letter addresses to the Court of justice from the Chairman LC 1 of Mutundwe Wabiyinja Cell LC 1 dated 5th October, 2019 indicating that indeed he was a resident of the said village for a long time, a Ugandan Muganda by tribe who should be rendered assistance. In addition to above, the Applicant presented whose details are listed below and whom he informed the court where explained to their roles and duties as sureties to remind the applicant to attend court once granted bail and that they have willingly accepted to stand for him as sureties upon the terms and conditions which may be set by court.

The proposed sureties are;

  1. Mr. Yiga Jamilu: 1st Surety

A male adult aged 43 years old who is stated to be a friend and business partner in a joint shoe shop where the two have been working together for the last five years. This surety is stated to be a resident of Buwaali Cell, Nsangi I Kyengera Town Council in Wakiso District. He tendered his National ID NIN CM76045100X5KG and a letter of introduction from the L.C I Chairman of Buwaali Cell dated 11th October 2019. He is contactable on telephone number is 0756500570.

  1. Ms. Namagembe Amina: 2nd Surety

A female adult aged 32 years old and a wife to the Applicant. She resides at Mutundwe Wabiyinja Cell, L.C I, in Makindye-Ssabbagabo Municipality. She tendered in her National ID NIN CF85098103T5QG and a letter from the area L.C I Chairperson dated 8th November 2019. She is contactable on telephone number is 0708231102.

  1. Hajati Masitula Nassanga: 3rd Surety

A female adult aged 74 years old and mother to the Applicant. She is a peasant farmer by occupation and a resident of Bulalo L.C I village in Butenga Sub-County in Bukomansimbi District. She presented a National ID NIN CF450981022K1E and an introductory letter from the Chairman of Bulalo L.C I dated 7th November 2019. She is contactable on telephone number is 0757563639.

  1. Bruhan Ssebandeke: 4th Surety

A male adult aged 71 years and father to the Applicant. He is a peasant farmer and a resident of Gayaza C village in Kawuku Parish, in Butenga Sub-county Bukomansimbi. He presented a National ID NIN CM480981004HTA and a letter of introduction from the L.C I Chairman of Gayaza C L.C dated 7th November 2019. He is contactable on telephone number is 0752516478.

Having provided the above information including those of his sureties, the Applicant prayed that he be granted bail on such terms as the court would find fit but taking into account his financial and family conditions.

In response to the above, Mr. Lino Anguzu, representing the Respondent submitted that the Applicant had not submitted satisfactory evidence to prove that he has a permanent place of abode. He argued that there are grave inconsistencies in the three documents that the applicant submitted for according to him whereas the L.C I letter and the land title indicate that the applicant’s place of abode was at Mutundwe, Bunamuwaya, Ssabbagabo, Makindye, his national ID showed the applicant’s village as being Blue Room, Kisenyi Parish, located in Central Kampala Division arguing that since the national ID was the original identifying document, then it should found to supersedes the other documents. He insinuated foul play by the Applicant as to why the applicant would chose to register for a national ID in a place which was different from his place of abode.

Additionally Mr. Anguzu invited the Court to take note of the letter of introduction of Wabiyinja Cell which he submitted was very brief and bore no specific purpose as to why the letter was written arguing that when all these are taken into account then they go prove that the applicant had no fixed place of abode.

In regards to the sureties presented by the Applicant, Mr. Anguzu representing the Respondent had no objection to the 2nd, 3rd and 4th sureties but objected to the 1st surety that is Mr. Yiga, on the grounds that his place of residence was also different from that which reflected on his national ID.

Responding to Mr. Anguzu’s objections Counsels  for the Applicant submitted that that the inconsistencies in regards to identification and place of work could not be fatal to this application for bail since both Makindye Ssabagabo and Kisenyi were within the jurisdiction of this Honourable Court   that even though the applicant’s national ID indicated Kisenyi as the place of residence it was in fact his place of work with this inconsistency cured by the L.C I letter which clearly states the Applicant’s place of abode and even confirming the fact of the area authorities knowing  him very well.

Counsels thus prayed to court to grant bail accordingly.

  1.  

Having heard the submissions from both sides and carefully looked at the applicant’s documents which indeed show variance as to his place of abode vis a vis his place of work and having noted that indeed on record is the letter written by the L.C I Chairman indicating that the applicant is a resident of Mutundwe Wabiyinja Cell L.C I , I would surmise that the inconsistency in regards to the place of abode is cured by the LC letter for it clearly states that the Applicant is  a resident of the place where he purports to hailing form with this piece of evidence supported by the Land title which indeed confirms this fact.

Therefore my  conclusion in regards to this is that the inconsistencies between the National ID and the Letter from LC1 do in whole affect proof of place of abode for there was not tendered in court contrary evidence to prove that it was requirement that one must be a resident in a place in order to get a national ID yet to the contrary, the LC letter supported by the land title tendered in court conclusively and positively confirms the place of abode of the applicant and that he has a permanent place of abode at Mutundwe Wabiyinja Cell. This ratio decidendi applies to the same issue raised in regards to Surety No 1.

Mr. Anguzu Lino for the respondent implored the court to consider the gravity of the offences against the Applicant in exercising its discretion submitting that the offence of terrorism is more serious than other capital offences that attract the death penalty or it is committed with tact, premeditation and preparation. This submission was rebutted by the counsels for the Applicant who asked the court to take note of the fact that the gravity of an offence can only be relevant once substantial evidence has been adduced as was noted in the case of Dr. Ismail Kalule vs Uganda Criminal Misc. Application No. 001/2018 wherein the honorable court while considering a similar argument referred to the views of Mulenga, JSC in Attorney General vs Tumushabe (2008) E. A 26 as quoted in Okello Augustine VS Uganda Criminal Misc. Application NO. 006 /2012 noted that ‘….the Court may at its discretion, grant the application irrespective of the class of criminal offence for which the person is charged’

In the same case Mulenga J went on to note further that ‘courts have been cautioned not to treat refusal of bail as a punishment against the applicant or to deprive one of liberty unreasonably. The preference has been to allow the accused the full benefit of his civil liberties, the gravity of the charges against him/ her notwithstanding.’

I am in total agreement with this view and would arrive at the same conclusions for the constitutional and regulatory provisions in regards to whether bail should or not be granted are clear and cannot be merely abridged by mere wishful thinking of what a particular party may want but must be grounded on well-known provisions of the law such as the presumption of innocence as provided for in the constitution clearly guides on what legal regime ought to followed in terms of when an accused person appears before a court charged with a criminal offence. Therefore any taking into account the seriousness of an offence resulting in the denial of bail would only arise where there is presented concrete evidence which would sway the court to act otherwise which in the instant matter I find wanting.

Therefore, taking into account all the above and mindful of the submissions and the legal positions in regards to matters such as those of which the applicant is standing trial in this court for, I would still be inclined to grant bail to the applicant but on the following stringent conditions.

  1. Order:
  1. By taking from the Applicant a recognizance consisting of a CASH bond of UGX. 5,000,000/= (Five Million Uganda shillings only).
  2. The Applicant to deposit the ORIGINAL Certificate of Land Title in respect of Land situated at Kyandondo, Mengo BLOCK 264 PLOT 1456 with the Assistant Registrar of this court which are in his names.
  3. The Applicant to deposit recently taken Two (2) = (Black and white) Passport size photographs with the Deputy Registrar, ICD to be attached to his court and prosecution files, respectively.
  4. The Applicant to report to the Deputy Registrar, on the every First Tuesday of every month beginning on the 4th of February 2020.
  5. Within a period of ONE (1) week from the date of this order, the Applicant must surrender any passport held by him to the Registrar ICD for safe custody
  6. The Four sureties presented by the Applicant are approved as substantial. These are ;
  • Mr. Yiga Jamilu: 1st Surety

A male adult aged 43 years old who is stated to be a friend and business partner in a joint shoe shop where the two have been working together for the last five years. This surety is stated to be a resident of Buwaali Cell, Nsangi I Kyengera Town Council in Wakiso District. He tendered his National ID NIN CM76045100X5KG and a letter of introduction from the L.C I Chairman of Buwaali Cell dated 11th October 2019. He is contactable on telephone number is 0756500570.

  • Ms. Namagembe Amina: 2nd Surety

A female adult aged 32 years old and a wife to the Applicant. She resides at Mutundwe Wabiyinja Cell, L.C I, in Makindye-Ssabbagabo Municipality. She tendered in her National ID NIN CF85098103T5QG and a letter from the area L.C I Chairperson dated 8th November 2019. She is contactable on telephone number is 0708231102.

  • Hajati Masitula Nassanga: 3rd Surety

A female adult aged 74 years old and mother to the Applicant. She is a peasant farmer by occupation and a resident of Bulalo L.C I village in Butenga Sub-County in Bukomansimbi District. She presented a National ID NIN CF450981022K1E and an introductory letter from the Chairman of Bulalo L.C I dated 7th November 2019. She is contactable on telephone number is 0757563639.

  • Bruhan Ssebandeke: 4th Surety

A male adult aged 71 years and father to the Applicant. He is a peasant farmer and a resident of Gayaza C village in Kawuku Parish, in Butenga Sub-county Bukomansimbi. He presented a National ID NIN CM480981004HTA and a letter of introduction from the L.C I Chairman of Gayaza C L.C dated 7th November 2019. He is contactable on telephone number is 0752516478.

  1. Each of the approved sureties shall deposit two (2) passport size photographs with the Deputy Registrar, ICD for attaching on the court and prosecution files, respectively.
  2. Each of the Approved sureties shall sign an individual NON-CASH bond of UGX 5,000,000/= (Five Million Uganda Shillings Only) forfeitable to the state if and when the Applicant at any single occasion, without leave of court, fails to attend Court to answer the indictment against him.

 

  1. Any Failure to adhere to any of the above set will automatically lapse the conditions set above and where the Applicant is set free and does not fulfil his reporting terms his bail shall automatically cancel with an arrest warrant issuing subsequently for his Arrest to return custody till the completion of his trial or as otherwise ordered by this Honourable Court.

 

 

…………………………………………………………………….

HON. DR. JUSTICE HENRY PETER ADONYO

JUDGE

8TH JANUARY 2020