REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CRIMINAL MISC. APPLICATION. 76 OF 2006

COL. (RTD) DR. KIZZA BESIGYE::::::::::::::::::::::::::::::::::::: APPLICANT

VS
UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

BEFORE: HON. LADY JUSTICE C.A. OKELLO

RULING:
The applicant Col. (Rtd) Dr. Kizza Besigye, is currently awaiting completion of his
trial by the High Court on two offences being treason contrary to section 23 (1)
(c) of the Penal Code Act, and Concealing treason contrary to section 25 of the
Penal Code Act. He was released on interim bail in connection with these
offences and it is the terms of that bail that he has applied to this court to vary.
The orders he seeks through this application are:
1. An order of variation permitting /allowing him to travel out of the
country to two destinations being Accra in Ghana where a meeting
is due to be held from the 4th to the 6th day of August 2006. The
second destination the applicant wishes to travel to is Bournemouth
in England where a conference will be held from the 1st to 4th
October 2006.
2. the second order sought is an order releasing to the applicant his
passport number BD 0458900 for purposes of processing his travel
visas and of course the actual travel to the two destinations.
Several grounds were raised in support of the application. I shall presently
examine them as I consider the arguments made thereon by the learned counsel
for the parties to the application. The respondent has however, objected to the
application. The objections are contained in the affidavit in reply sworn by a
Senior Superintendent of police one Ely Womanya. For easy of consideration, I
shall group the grounds in support of the orders sought, and the grounds in
objection to the application into two groups. The first group can be said to be
either grounds in justification of issuing the orders or grounds in justification of
refusal to grant the orders. The second group deals with likely consequences of
granting the orders. I shall examine the first group of grounds that is to sat, why
the orders should be issued or why they should be denied.

Arguing the first group of grounds, Mr. David Mpanga who appeared for the
applicant submitted that the leading opposition party in the United Kingdom, the
conservative party is organizing two factions in August, and in October 2006. The
August function is a meeting to be held in Accra Ghana for leaders of opposition
parties in Africa, it will run from 4th to 6th August 2006 (annexure “C” to the
applicant’s affidavit in support); while the second function is the conservative
party’s Annual Conference to be held in Bournemounth from the 1st to 2nd Oct,
2006 (annexure “ D” to affidavit in support). Counsel submitted that both
functions from part of joint activities the Conservative party will hold with
opposition parties in Africa the purposes of which are capacity building of
opposition parties and democracy in Africa. He argued that it is necessary for the
applicant to attend both function in his capacity as president of the leading
opposition in Uganda, the Forum for Democratic Change (FDC) and that is why
the organizers of the functions invited Dr. Kizza Besigye rather than other party
official.

The respondent was represented by five Attorneys led by Mr. Simon Byabakama
the Director of Public Prosecution. Others were Mr. Elly Karuhanga, |Mr. Oscar
Kambona, Mr. Sam Mayanja and Mr. Charles Kalumira. Mr. Oscar Kambona
argued the grounds among others that there is no justification for issuing the
order sprayed for. The learned counsel argued that the applicant will be a mere
observer at the two functions as he will not present a paper. The meetings will
therefore not miss him if he does not attend them.

Secondly, the learned Mr. Kambona argued that since the purpose of the
meeting/conference is capacity building, it is the capacity of opposition parties
that is supposed to be build and not that of an individual, it is therefore not
necessary for the applicant to attend the meeting/conference in person. He
argued that FDC has a leader of opposition who sits in parliament who could
attend the functions on behalf of the party.

It was further argued (I believe), that the applicant’s bail is only interim as
opposed to substantive; it will be revisited once matters relevant to the interim
bail that were referred to another court for determination are finalized. In the
meantime, conditions of the current bail should be varied only when an applicant
for variation shows exceptional circumstances for variation which the current
applicant has failed to show. The last objection argued in this group of objections
was that persons who are acting as sureties in the applicant’s interim bail have
not consented to variation of conditions. The learned Mr. Kambona argued that
there is nothing in the application to show that the sureties are even aware of
the existence of the current application. Yet if current conditions for bail are
varied, the interests of the sureties will be affected because they have
obligations towards the applicant which they have to enforce. It will be difficult
for the sureties to enforce the obligations with the applicant out of the country.
Counsel referred to the case of R Vs Wells Street Magistrates’ Court ex-parte
Albanese (1981) 3 All ER 769.
I start my consideration of the argument with the learned Mr. Kambona’s
argument that variation of the conditions of interim requires proof of exceptional
circumstances. Mr. Kambona did not bring to my attention any law or other
authority so support his argument on this point; I have not come across my law
or authority either on the proposition. I therefore take it that this court is fully
empowered in the exercise of its unfettered discretion in bail applications, to vary
conditions set for the grant of bail, whether the bail is substantive (to use Mr.
Kambona’s expression), or interim as in the case before me, I only add that
variation is usually made at the application of either party to bail. Order of
variation may aim at making conditions more difficult, or may ease original terms
and conditions. Whether or not to vary conditions depends upon the facts
surrounding each case.

Concerning other arguments in Justification of either issuing or refusing to issue

the orders sought, I find no substance in the ones advanced by the respondent.
To begin with Mr. Kambona knows well that in order to hold a meeting or
conference worth its name, the function needs to have participants as well as
resource persons. I do not believe that it is useful to hold a conference that is
attended only by resource persons; in fact, the real beneficiaries of such
functions are usually the participants by whatever name. An observer is a
participant who stands to derive benefit from attendance.

There is no substance either to the argument that since the functions are meant
to build the capacity of FDC, it is not necessary for the party president to attend
as and that other party official should be delegated to attend on behalf of the
party. It should be observed that FDC is a juristic person, its capacity and it
dealings and transactions has, inevitably, to be done through natural persons
such as the applicant. The pertinent point in Mr. Kambona’s argument whether
the party president should delegate another official to attend the two functions
on his behalf. Having pursued the two invitation letters, I note that they were
both addressed to the applicant personally, and as FDC party President. The
wordings of the invitations, as was argued by the learned Mr. Mpanga, have not
left room for delegation suggesting that the organizers of the meeting and
conference expect the applicant to attend in person rather than by sending
party, to start with building the capacity of its head as it is usually the head that
leads the whole party with the rest more or less following. The head leads.

I move on to the second set of grounds that address the likely consequences of
granting the application.

Mr. Mpanga argued that if the application is successful, the applicant will, at the
end of his travels, return to Uganda to await completion of his trial on pending
charges at the following reasons:
1. The applicant has a track record of observing bail conditions. He has
observed the conditions of his interim bail even when he was engaged in
presidential campaigns and was at the same time standing trial for the
offence of rape as court record shows (annexure “A” to his affidavit).
2. The applicant has five substantial sureties who are either Member of the
current parliament or of the Seventh parliament who are willing to stand by
their obligations as sureties.
3. The applicant is leader of a political organization; he cannot abscond because
doing so would cause embarrassment not only to his party, but to the
organizers of the two functions and the countries where the functions will be
held.
4. The objections contained in the respondent’s affidavit are either irrelevant, or
are too contentious to be dealt with in a proceeding wherein evidence is by
affidavit. In the contentious category were:
(i) a new paper report quoting the applicant t have said that he does not
need
a passport to abscond from Uganda, (ii) an assertion that the offences for
Which the applicant is currently on trial were partly committed while he was
Out of the country and that has refused to renounce rebellion. (iii) That the
PRA rebel organization is still in operation and that it regards the applicant as
Its leader.

Mr. Kambona and Mr. Byabakama Mugenyi for the respondent on the other
hand argued that the applicant will not return to the jurisdiction of this
court if he permitted to travel out of the country for the following reasons:
a. He is facing very serious charges the gravity of which is
indicated by the sentence of death that A CONVICTION WOULD
ENTAIL.
b. The cases against him are part-heard. The applicant has heard
part of the evidence which might scare him into absconding.
c. The applicant will be out of the jurisdiction of the court with the
result that court will not be in a position to enforce his
attendance of court.
d. The applicant will be out of the reach of his sureties who
therefore will not be able to discharge their duties which include
ensuring that he attends court.
e. That the charges for which the applicant is standing trial were
partly committed when he was out of the country and that he
may yet commit other offences when out of the jurisdiction of
the court.
f. That the applicant has the capacity to act illegally because he
fled the country in 2001 when there were no criminal charges
against him. But he faces charges now making it more likely to
abscond.
g. He used unauthorized means to get out of Uganda once.
I have examined the arguments for the both parties and comments on them are
the following:
It is a truism that the offence of treason is one of the most serious ones in the
statute books of this country. It is also true in this case that the one against the
applicant is part- heard, but it appears that the trial judge is yet to rule whether
the prosecution has established a prima facie case against him until then, I find it
inappropriate to make a pronouncement on the quality of evidence before the
trial judge. I believe that to do so would amount to usurpation of the jurisdiction
of a colleague who is seized of the trial. The argument that the current offences
against the applicant were partly committed when the applicant was out of
Uganda is again on that I cannot take at face value. I can only consider it as part
of the prosecution’s case in the main trial the veracity of which is yet to be
determined by the trial judge in the treason trial. Had the applicant been put of
his defence in the pending trial, I could probably have reached a different
consideration on these two arguments.

Regarding the argument that this court and his sureties will lose control over the
applicant once he is out of Uganda, my view is that there would be no real loss
of control because if the bail conditions were to be varied, the applicant would
be out only temporarily on terms to be determined by court. The argument that
the applicant has the capacity to act illegally, addresses only the capacity. There
is no concrete evidence that he will act illegally were he to travel out for the
specific conference and meeting. The argument that the RPA taking the applicant
as their leader does not go as far as suggesting that the applicant himself
regards himself as the leader of the group in any case, no concrete evidence has
been adduced in this application to prove that he will link with that organization
when out of Uganda.

All in all, I am of the view that this court should not smother the infant or baby
democracy that this country has given birth to by over circumscribing the rights
of persons who appear to be participants in the building processes and basing
decisions on mere suspicion that opposition party leader invited for specific
function out of Uganda, will be out to no good once he/she is out of the country.
A modicum of trust in their patriotism while out of the country need to be built.
And in the case of this particular applicant, he has so far demonstrated that he
respects his interim bail conditions. I believe that he is not likely to abscond from
the jurisdiction as so doing will not only be an embarrassment to the party that
he leads; but more important, it would greatly embarrass the organizers of the
meeting and conference.

I therefore see no reason to dismiss this application. I am granting it and issue

those orders:
1. Leave is granted to the applicant to travel to Ghana and later to Bournemouth
England to the meeting and conference subject of this application.
2. The applicant’s five sureties should each swear an affidavit to the effect that
The surety has no objection to temporary variation of the applicant’s bail
Conditions.
3. It is ordered that after the affidavits are filed on court, the applicant’s passport
Number B0458900 currently deposited in this court shall be released
forthwith
To the applicant to enable him travel to Accra Ghana.
4. The applicant shall redeposit the said passport with the Deputy Registrar
(Crime) within five days from his return from Accra. In the absence of
Evidence of the date of his return from Accra, I have assumed that he will
Have returned by the 10th August.
5. The Deputy Registrar (Crime) shall further release to the applicant his
passport for his travel to Bournemouth Conference seven days before the
scheduled date of departure to enable him arrange for travel visa. The
applicant shall thereafter deposit the passport with the Deputy Registrar
 (crime) five days after his return from U.K., the date of return being taken to
be not later than the 7th October 2006.
6. The condition requiring the applicant to report to the Deputy Registrar shall
suspended for period pf 4th August and the period of 1st 7th October 2006.

C. A. Okello
Judge
31/07/2006.

Court:
The Deputy Registrar (crime) is directed to read this Ruling that is already signed
and dated to the parties to it.

C.A.Okello
Judge
31/07/2006.