MBALE — On Thursday 18th April 2019, the now-deceased Bob Kasango appeared before Justice Muhanguzi of the Court appeal for a ruling on his bail application. His entire application had been premised on his ill health.
He had argued that Luzira prison was not well equipped to manage his health complications due to a lack of specialists and treatment. His application was rejected even when he had expressed willingness to proceed with his bail up to the Supreme Court as he awaits determination in the court of appeal.
Bob Kasango had in the year 2018 received a 16-year jail term by the High court Anti-corruption division Judge Margret Tibulya for allegedly stealing 15.4 billion shillings which had been budgeted for and released by the Ministry of Finance to pay the 6340 pensioners and to cater for emoluments of former presidents and their vices. He was convicted with three others who were already serving their sentences.
Justice Tibulya in her judgment had argued that evidence brought to court had proved that the trio in their respective capacities unlawfully paid the 15.4 billion shillings to Kasango’s defunct Law firm of Hall and partners as legal fees claiming the firm had successfully handled the worker’s case against Government in the year 1998 which according to the findings of the court was not true.
Having appealed against the conviction and sentence in the Court of appeal, Kasango was still maintaining his right of innocence with a likelihood of his application succeeding. The purposes of the bail if granted would give Kasango another lease of life until his appeal could be fixed, heard and disposed of in the Court of appeal. By the time of his death, a panel of three Justices had been constituted to entertain the appeal.
In his application for bail, Kasango had listed 12 grounds for consideration by the court. He proved that he suffered from cardiac complications for which he required frequent specialized medical attention in preparation for corrective heart surgery. Who knows, maybe by the time the Court of appeal could cause list his case, his health would be much better to stand prison life.
Kasango had also stated that he had been diagnosed with acute lung complication and he was recommended to have a daily oxygen supplement, which is hard to achieve in prison and went on to provide medical evidence to prove his claim. Bob also provided proof that he suffered a lapsed lower spinal disc and acute ulcers which are all serious medical conditions which evidence was disregarded by court leaving his fate to the dictates of mother nature to determine his destiny.
In rejecting his application, the court noted that since this was Kasango’s first the appeal, it was difficult to assess his compliance with the bail terms pending his appeal. Court further noted that the gist of Kasango’s application was to be allowed to travel abroad and seek specialized treatment, which the Judge said was alien to and not available in Uganda.
The court stated that having looked at the whole bulk of documents attached to the application from several doctors and from several health institutions, court was unable to decipher whether or not such treatment was unavailable in Uganda. To me, having confirmed the authenticity of the medical certificates, the Court should have restricted Kasango movements to only health facilities in Uganda other than denying him bail just because the documents attached in evidence recommended treatment and or surgery outside of Uganda, I may not blame the DPP for opposing the application because that is what they are trained to do but the courts rejecting Kasanga’s application when there was evidence that he had serious medical conditions is extremely harsh.
The judge noted that as a condition for grant of bail, Kasango had to prove that he has a fixed place of residence within the jurisdiction of the court. I personally find this condition discriminatory in nature as it only favors the well to do and that anyone without a fixed place aboard is not entitled to bail. A fixed place of aboard is a sweeping statement and means a permanent home but who says such a person cannot relocate or even sell the property and escape the jurisdiction of the court.
Kasango the predicament is not isolated as many convicts and those on remand have died in prison because the court could not see a need to invoke Article 28(3)(a) of the 1995 Constitution. The provision provides for the presumption of innocence which entitles I believe entitles accused persons to bail. The provision was intended to be carried by all accused persons who have preferred an appeal the decision of the lower court until confirmed by the Supreme Court.
I still hold the conservative position based on the 2003 decision of Arthur Oder JSC as he then was in the case of Arvind Patel v Uganda on bail pending appeal despite Justice Esther Kisaakye sitting as a single Judge in the case of Joshua Magombe differed substantially from the above decision arguing that granting bail pending appeal is alien to the human rights regime under Chapter four of the Constitution.
I still believe and know that article 28(3)(a) of the 1995 Constitution was included in our laws to cater for situations like sickness and to give temporary freedom to an accused person or convict to receive specialized or proper treatment outside prison life as they await the outcome of his appeal. This is premised on the fact that the convict would have disagreed with the findings of the trial court and wishes to proceed with a further appeal in a higher court and must be treated as innocent the moment an appeal is lodged challenging the decision of the lower court.
Although many healths related deaths have not caught the eye of the press, in 2019-2020 alone, several people died under avoidable circumstances in Uganda Prisons. Bernhard Glaser, a German-born Belgian national who was facing charges of aggravated child trafficking died in Luzira prison just because he could not afford to 30,000,000/= cash bail. Bernhard Glaser, a director of Ssese Humanitarian Services, a community-based organisation located at Mwena landing site in Kalangala district was sent back to prison awaiting the payment of the cash bail in order to have his freedom and treatment.
Irrespective of the sentiments of the Directorate of Public Prosecutions in opposing the grant of bail, the last say remains with the judicial officer to determine the fate of an accused person seeking bail for one reason or another.
Besides being a constitutional right, an accused person should always be a candidate for bail more so those who are found to have complicated illnesses, a person of advanced age, a bread winner, a single parent, a person with no past criminal record, a breast feeding mother among others.
The courts have the capacity to set conditions to ensure that the accused person doesn’t abscond.