Why court’s denial of Tumukunde’s bail plea sets bad precedent for Uganda

Political contests in Uganda, right from the colonial era, have an uncanny tendency of playing out in courtrooms. Judges occasionally find themselves entangled in the labyrinth of contradictions among adults in our political space. At one point it was colonial subjects being paraded in courts manned by White men for challenging colonialism, at another era it was ministers once in president Milton Obote’s government in court for crossing his path.

At another juncture, it is President Museveni’s Bush War time medical aide running from one courtroom to another answering treason, rape and a cocktail of other charges after he offers himself for the presidency. Sometimes it is a presidential election gone bad that needs the Supreme Court to pronounce itself on whether it was free or fair.

And so, presidential hopeful Lt Gen Henry Tumukunde was arrested, with the State accusing him of treason and illegal possession of firearms. His lawyers took to the High Court to apply for bail and on April 14, a ruling was delivered. That decision by Justice Wilson Kwesiga has elicited different opinions.
Judges, unlike politicians, deliver rulings that leave one party, in most cases, unhappy. In contentious cases, especially those with high stake politricks (sic), as a judge, you are damned if you do, damned if you don’t. Accordingly, judges only have one recourse, and that is the law.
So how did Justice Kwesiga fair on the law, and fidelity to that blind goddess of justice to which he swore to his God to serve without fear or favour?

What the High Court ruled
The judge acknowledged in his ruling that the grant of a bail application is a purely discretionary decision of court, judiciously arrived at after examining circumstances and evidence of each application. To that end, the judge noted: “I am not bound by previous decisions in bail applications, whether decided by me or other judges.”
He then agreed that the applicant was of advanced age, had a fixed place of abode in Kololo, Kampala, which is within the jurisdiction of court, and overruled the Director of Public Prosecution’s objection that having been previously convicted by the General Court Martial, the applicant was not qualified for grant of bail.
The judge also rejected the State’s objection to the application on the ground that investigations into the case are complex, are at an early stage and grant of bail would hinder success of the inquiry.

Recognising that it is a bad practice to arrest, remand and take time to investigate, the judge declined to indulge in debate on whether the Tumukunde case is complex, but took cognisance of the fact that in the disabling circumstances of the Covid-19 pandemic and its lockdown effects on the country, “the solution is to accommodate both parties.”

To protect State evidence yet to be gathered, the solution, the judge held, “is not to reject releasing the applicant on bail, but to delay the release for a reasonable time due to prevailing national precautions that stopped movement of persons to prevent regrettable health occurrence.”
In criminal cases, justice starts with investigation, gathering evidence and preserving it for trial. He noted that the detectives had been understandably delayed in completion of their investigations as contact with persons has been limited by government’s Covid-19 measures.
The bail application would be reconsidered when the circumstances around the pandemic have changed.

In effect, the judge did not outrightly deny Gen Tumukunde bail on the basis of this ground, but made a persuasive argument for the grant of that bail to be delayed; firstly, to allow the State time to conclude its investigations in light of the delays caused by the pandemic, and secondly, to review the application after those circumstances have changed.
In effect, the judge was trying to balance a tight rope, on one side the interests of the applicant, and on the other the State. Justice means justice for both parties.
A High Court judge I discussed this ruling with off the record opined that she found this ground particularly justifiable because it is important to protect witnesses and not to compromise evidence or the entire investigation process, at least in principle.

To that end, any objective mind looking at the judge’s decision with the whole picture in mind would be inclined to give the court the benefit of doubt.
Of course, arguments such as ‘but Tumukunde did not cause the pandemic’ or ‘why would he be denied bail by investigation delays caused by the pandemic?’ are valid, but largely for sentimental and moral value.
The legal wrap up to this would be that the court exercised its discretion judiciously to the extent that it did not outrightly deny the applicant bail, but made a case for delay of grant of bail, leaving room for review of the application when the circumstances around the lockdown of the country change.
In that regard, the judge appears to have justified his discretion to deny the General bail.

Alarming precedent
There is a challenge, however, and an alarming precedent that the judge set in the second and arguably most important ground to deny the applicant bail. The crux of this issue is substantiality of sureties; those men and women any of us may at one point in life need to give a guarantee to court that the accused will turn up for his or her trial if released on bail. They accept the responsibility to pay a fixed sum of money to government if the accused does not appear. They must be adults of sound mind and of good standing in society.

As the judge observed, substantial sureties depend on the circumstances of each case. The most important consideration should be whether the surety can prevail over, control and where necessary, compel the accused to abide by the terms and conditions of bail. This calls for persons of proven influence or authority over the accused.
Noting that Tumukunde is a General of the UPDF (though retired), whose application for bail projected a man with a high profile and substantial influence, the judge declined to grant him bail. He found his sureties not substantial. In the test of substantiality of sureties, the court aroused controversy.

In building his argument through analogy, nay speculation, the judge noted that an army General has in the past defied court summons and this embarrassment must be avoided. Rather than review Tumukunde’s own record on bail and behaviour when he has been subject of court process, the judge chose to indulge in an expedition of fishing evidence outside his court room.

Rather than cite examples of another General (whom he did not name) that defied court summons, the judge could have as well reviewed how other senior military officers who have been tried before our courts have behaved, if he was not in the mood of looking at how Tumukunde conducted himself when he was on trial in the Court Martial.
Dr Kizza Besigye, a retired Colonel, and Gen David Sejusa, who had similar or even more clout than Tumukunde, just like Gen Kale Kayihura who is currently facing trial, have all obeyed court summons when subjected to court process. Why the judge chose to rely on the example of the unnamed General who disobeyed court summons when he had in the dock, a General once tried by court and several other military officers who have not defied court summons, raises more questions than answers.

This reasoning by analogy is important to point out to the extent that it is the foundation of the argument on why court thought the sureties weren’t substantial and the subsequent test of substantiality of sureties in this case.
In his view, “Military officers seeking to be released on bail should furnish court with sureties who have capacity to trace, prevail over them or even compel them to abide by court orders.”

The appropriate sureties, he ruled, “should have been two military officers of his rank or higher ranks provided if the sureties are serving officers, they shall submit a letter of introduction from the Chief of Defence Forces (CDF).”
Tumukunde had presented his wife, relative Hannington Byaruhanga, former army commander, Maj Gen Mugisha Muntu, and FDC vice president for eastern region Proscovia Salaamu Musumba. The judge found all these sureties not substantial. Other judges I have discussed this ruling with are persuaded that an adult family member like the applicant’s wife would pass the substantiality test as would Maj Gen Muntu and even Musumba.

Compare and contrast
By contrast, when four-star Gen David Sejusa sought bail not so long ago, he presented as sureties Kampala Lord Mayor Erias Lukwago and a one Deo Kizito. The High Court then didn’t make similar demands in terms of substantiality of his sureties.
Similarly, when Col Besigye in 2005 sought bail, the High Court accepted Mr John Ken Lukyamuzi (then Rubaga South MP, and secretary general of the Conservative Party), Dr Francis Epetait, (MP for Ngora County at the time), Capt Charles Byaruhanga (MP for Kibaale County then), Odonga Otto (Aruu County MP) and Mr Monamed Kibirige Mayanja (president of Jeema party then).

When ex-police chief Gen Kayihura sought bail, the General Court Martial accepted two sureties who were below his rank of four-star General; Maj Gen Sam Kavuma, the Deputy Commander of Land Forces, Maj Gen James Mugira, CEO of National Enterprise Corporation, which is the business arm of the UPDF, and a civilian, Rosemary Tumusiime, the MP of Entebbe Municipality.

Had the High Court in 2005 followed Justice Kwesiga’s reasoning in 2020, that would mean Besigye, a retired senior army officer like Tumukunde, would have had to submit two sureties of his rank or above, serving army officers with introduction letters from the army commander. That would mean, in real terms, no bail for the applicant. The same is true with Gen Sejusa and Gen Kayihura’s bail applications.

Justice Kwesiga, though not bound by these precedents, would have had a wiser and fairer ruling if he had consulted these authorities instead of reasoning by analogy and speculation constructed around foretelling and forestalling an imaginary embarrassment to his court by assuming the General may defy court summons and the sureties, who included his wife, a fellow retired general, a senior party leader and former MP, cannot compel or cause the applicant to appear in court when needed.
Even then, one would have to be from outer space to imagine that it is practical, in our political context, for the CDF to introduce serving army officers as sureties for a man facing a treason charge and running against his Commander-in-Chief. To flip the mental coin, close your eyes and imagine court asking Besigye in 2005 to get sureties who are serving army officers at, or above, the rank of Colonel with clearance from the army commander in an election year.

If the judge’s reasoning be stretched further, this monstrous precedent means that tomorrow, another judge will demand that a Makerere University professor facing trial produces academics of his rank or higher who must have clearance from the vice chancellor, or an MP presents sureties of his level or higher with clearance from the Speaker of Parliament, or a High Court judge on trial presents sureties at his or higher level with a letter from the Chief Justice.
By setting this standard, the judge has opened floodgates of unfeasible benchmarks for substantiality of sureties, and it is a road most dangerous for Uganda’s rule of law.

To back this up, I will seek the wisdom of two judges. Although Mr Kwesiga insists he is not bound by their decisions, at least he may find their appreciation of the law persuasive.
The basic object of bail is to secure the accused’s subsequent appearance before court when his presence is needed, a position amplified in the American case of Johnson vs Shaffer.

Bail, as Justice James Ogoola held in Kizza Besigye vs Uganda (criminal misc. application no. 228 of 2005) is, “the judicial instrument for ensuring the liberty of the individual. In this regard, the quest for bail is a quest for liberty. The right to the liberty of the individual is next only to the individual’s right to life itself. Liberty is as crucial in a free and democratic society, as breath is to life.”
Liberty, as Ogoola held, is so precious a commodity that during the American struggle for independence some 300 years ago, one of the American independence protagonists - Thomas Paine – “summed up the situation with the following eloquent and immortal declaration - a declaration not of suicide and despair, but of defiance and triumph: “ Give me liberty, or give me death.”

In our constitutional matrix here in Uganda, the retired Principal Judge noted: “liberty looms large. The liberty of one, is the liberty of all. The liberty of anyone must never be curtailed lightly, wantonly or, even worse, arbitrarily.”
Article 23, Clause (6) of the Constitution grants a person who is deprived of his or her liberty, the right to apply to a competent court of law for the grant of bail. The courts from which such a person seeks refuge and solace, “should be extremely wary of sending such a person away empty handed - except, of course, for good cause. Ours are courts of justice. Ours is the duty and privilege to jealously and courageously guard and defend the rights of all, in spite of all.”

By sending away Tumukunde empty handed on the basis of want of substantial sureties using a test of substantiality most alien in our jurisprudence, the court’s decision, analysed through the Ogoola standard in the Besigye case, did not only dispense of its discretion injudiciously, but also curtailed his liberty and by extension, liberty of other Ugandans through the power of precedent, “lightly, wantonly or, even worse, arbitrarily.”

In Kenny’s Outlines of Criminal Law, 19th Edition, the learned author advises courts in exercising the discretion to admit a remand prisoner to bail to consider what likelihood there is of his failing to appear for trial. The courts are also advised to consider whether the proposed sureties are independent or are likely to be indemnified by the accused. It is this test that Justice Kwesiga relied on as the ground to dismiss Tumukunde’s application.

High Court Criminal Miscellaneous Application No. 075 of 2016 (His Majesty Omusinga Mumbere Charles Wesley vs Uganda) is also instructive. In that case, the applicant was, jointly with others, charged with multiple offences of terrorism, murder, attempted murder, aggravated robbery, treason, and malicious damage to property. At the time of the application for bail, police investigations were still on going.
Learned judge Eva K. Luwata said: “In our law, the primary purpose of bail should be to ensure that the applicant appears to stand trial without the necessity of being detained in custody during the period of trial.”

In Dr Ismail Kalule vs Uganda (criminal miscellaneous application no. 001 of 2018) where the applicant was arrested in May 2016, at the High Court Criminal Division soon after his acquittal of several counts of terrorism and murder, Justice Moses Mukiibi held: “….the court must be satisfied that the applicant will appear for trial and not abscond. If facts come to light that there is a substantial likelihood of the applicant offending bail, it is advisable to reject the application.”
It appears that the only substantial likelihood of Tumukunde absconding from trial, according to the judge, is the fact that in Uganda’s court history, an unnamed General has ever disregarded court summons. To save his court from embarrassment, the judge chose to raise the substantiality bar on sureties for the applicant.

Justice Mukiibi standard on bail
In the Kalule case, Justice Mukiibi considered the following factors in a bail application: The need to give the applicant for bail the full benefit of his constitutional rights and freedoms, absence of any evidence that the applicant may cause lawlessness to society if released on bail, absence of any evidence from the respondent that there is a risk of the applicant absconding, absence of any evidence that the applicant has any likelihood of interfering with the course of justice, the seriousness of the charges against the applicant, absence of any evidence that the applicant is likely to commit other offences while on bail, absence of any indication that the applicant is violent or threatens violence against anyone.

He added absence of any evidence that the applicant is likely to interfere with the prosecution’s witnesses, the status of the case that after more than one year and three months the Chief Magistrate’s Court committal file has not been delivered to the International Crimes Division, and the constitutional requirement that the applicant must be presumed to be innocent until he is proved guilty or until he pleads guilty, the caution that bail should not be refused as a form of punishment for the applicant.

Other considerations are: The presence of sound sureties within the jurisdiction of court who are ready to undertake that the applicant shall comply with the conditions of his bail. The fact that the applicant has a wife and children and leads a settled existence, with a fixed place of abode within the jurisdiction of court. Absence of any information from the respondent that there are other charges pending against the applicant.

The import of these standards as set out by Justice Mukiibi is that the court must be satisfied that the applicant will appear for trial and not abscond. The nature of sureties must be such as to have independence and capacity to cause and compel the applicant to appear in court. Nowhere in the law is that capacity of sureties tied to ranks or seniority, even if each case must be considered on its merits. Justice Kwesiga’s decision, therefore, is out of its depth even if the strictest legal measure was applied.

Considering all the foregoing factors, Justice Mukiibi was satisfied that the applicant would return to attend his trial. Had the judge addressed his mind to the Mukiibi standard on factors to be considered in granting bail, and read that together with the Ogoola and Luswata decisions in the Besigye and King Mumbere cases respectively, the court would have most likely set more reasonable parameters for substantial sureties.
Even when court is clothed with discretionary power, that power is not a magic wand to issue edicts that defeat the ends of justice, erode principles built over time in our jurisprudence and undermine the very essence of the right to bail.