Ogwang v Uganda (Criminal Miscellaneous Application 30 of 1993) [1994] UGHC 94 (4 February 1994)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA MISC. CRIMINAL APPLICATION NO. 30/1993 (Original Criminal Case No. MNG 92/92)

OG. HANG ALFRED: ....... $\cdots$ APPLICANT VERSUS

UG!NDA: ... RESPONDENT BEFORE: The Honourable Mr. Ag. Justice E. S. Lugavizi RULING:

The Applicant herein was charged with the offence of defilement contrary to section 123 of the Penal Code before the Chief Magistrate's Court in Moroto. This took place on 2nd November, 1992, after which he was remanded and has been in custody since then.

When the Applicant came before me on an application for bail on 31st January, 1994, he disclosed that before ho was taken to court on 2nd November, 1992, he had been kept in Abim police custody for a period of nine months. In view of the above therefore, he believed that he presently qualified for the grant of bail under section 14B of the Trial on Indictments Decree. In addition, the Applicant said that he was sick and weak.

The Director of Public Presecutions was unrepresented at the time of this application, and so I was unable to have his views.

Be that as it may, section 14B of the Trial on Indictments Decree (incorporated therein by Act 5/90) which lays down the time limit in capital cases where persons who have not yet been tried are on remand, provides as follows: $...12...$

"14B If an accused person has been remanded in custody before the commencement of his trial ^~

> (a) in respect of any offence punishable by death, for a continuous period exceeding four hundred and eighty days, or

(b) .....................

the judge beforewhom he first appears after the expiration of the relevant period shall release him on bail oq. his rooegnicamjo that he is accused of an' offence referred to in section 14A(1), unless,

- (i) he has, prior to the expiration of that period, been committed to the High Court for trial; or - <iO the judge satisfied that it is for the protection of the public that he should not be released from custody".

Although Vto- ipjiiicant Inor-alri ola.ii-.is: to iiw. V-u boon hvlxl in " police custody for nine months before he appeared in court in Moroto, I believe his rights under the above law did not begin to take effect until the Chief Magistrate actually remanded him on 2nd November, 1992. As a result therefore, this part of his w\* application which is based on the above law is premature, for he has not yet been on remand for a continous period exceeding 4SO days. By my calculation, he has covered only around 43 ^o days.

As regards sickness, according to section 14A(2)(a) of the Trial on Indictments Decree (incorporated therein by Act ⁵ of 19B5) an Applicant cannot succeed under this item of

exceptional circumstances unless he shows that he is suffering from grave illness which had been certified by a Medical Board of being incapable of adequate medical treatment while the Applicant is in custody.

$3:$

$\ddot{\phantom{a}}$

However, it is common knowledge that up to now, there is no such Medical Board in place. In the face of that difficulty therefore, cases, such as Ahmad Sengendo vs. Uganda Misc. Cr. Appl. No. 111 of 1986, Lule Tony vs. Uganda Misc. Cr. Appl. No. 25 of 1993, and others, have suggested that it would be appropriate for the court to substitute itself for the Medical Board and consider the available evidence and decide whether the alleged grave illness is really grave and whether it is such as would be incapable of adequate medical treatment while the accused is in custody.

In this case, however, apart from the fact that the Applicant alleged that he was sick and weak, there was absolutely no evidence concerning the state of his health.

In the event therefore, this application for bail would again fail under this itom. Accordingly, the application herein stands dismissed.

Before I take leave of this matter, may I take this opportunity to point out that if the Applicant's claim that he was kept in police custody for 9 months before being produced in a court of law is true, then whoever was responsible for that at Abim Police Station, acted unlawfully and highhandedly. The police would always do well to remember that whenever a suspect is in their hands, he is supposed to be produced before a court of law within the next twenty-four hours. Middle games

E. S. Lugayizi<br>Ag. J U D G E $4/02/1994.$

$.../4...$

Read before:

Mr. Elubu for the State.

The Applicant/Accused present.

• 4

Mrs. Kamkama Court/Clerk.

E. S. Lugayizi

Ag. J ^U ^D GE 4/02/1994.