Faced with an application for bail pending a last appeal, how should a senior court approach the reality of this situation: long delays will mean that the accused could well have served his entire sentence by the time the appeal is heard? Here is what Uganda’s highest court had to say on the subject.
Jean Louis Sumbu did not gloss over the facts. When he asked Uganda’s Supreme Court to order that he be allowed out on bail pending his last-ditch appeal before that same court he had to explain the whole story.
Sumbu, “a male adult, Congolese, of sound mind”, is 64 and has had a stroke.
He was arrested and charged with embezzlement but pending the start of his trial he was released on police bond and was obliged to report regularly to the police. When the trial started, he was charged with embezzlement and forgery in the anti-corruption division.
During his trial he successfully applied for bail and his bail continued until his conviction on both counts during December 2016 with a combined sentence of seven years, five years for embezzlement and two for forgery.
Then he challenged the outcome at the Court of Appeal. While he waited for that to be heard, he applied for bail and again it was granted. In March this year his appeal was dismissed, but in the interim he did not default on his bail conditions.
Now he has noted a final appeal, this time to the Supreme Court. But what was to happen in the meantime until the appeal was finalised? He wants to be given bail again, pending the outcome of his final chance to reverse his conviction. But the prosecution has other views on the matter and has opposed the idea.
According to Sumbu, his lawyers say that because of “systemic delays” in the court system, he is likely to serve a substantial portion of his sentence – perhaps even the whole thing – before the appeal is finalized.
Then he described his medical condition, for which he needed attention 24 hours a day. According to him his health was such that it could not be managed while in jail. Further, he has no further criminal record. He lived with his family as the bread winner, and there was no legal bar to his bail being extended. Additionally, the “substantial sureties” who have stood by him thus far “already know their responsibilities”.
In response Josephine Namatovu of the prosecutor’s office said that Sumbu had not given enough information in his bail application for the court to know whether Sumbu’s pending appeal was not perhaps vexatious or frivolous or whether there was any chance of success.
As to his claim that, because of “systemic delays”, he might serve most if not all of his sentence while waiting for his appeal at the Supreme Court, this was “mere speculation” with “no factual basis”, said the prosecutor. Moreover, his conviction of embezzlement and forgery meant he was not a person of “reputable character”, and on top of that, the Court of Appeal had dismissed his attempt to have conviction set aside. He had produced no “exceptional circumstances” to warrant his release on bail pending the appeal, and so his application should be rejected.
Justice Faith Mwondha, who heard the bail application, was less skeptical than the prosecution about Sumbu and whether he should be given bail.
She said she had listened carefully to argument by both sides, and had also studied the medical reports by Sumbu’s witnesses. On the medical findings alone, she said, the Supreme Court would have granted bail. But there were also other considerations that should not be overlooked.
Sumbu’s sureties were “substantial”. One of them, Sumbu’s wife, had already shown that she clearly had the “capacity” to make sure that her husband attended court. It was clear from the prosecution’s affidavit that he had never absconded or in any other way breached the bail conditions that two courts had imposed.
There was also no doubt in the mind of the judge that he would continue to observe his bail conditions. Besides, she said, he was a first offender and of an advanced age. Sumbu’s appeal was clearly not frivolous because if it were, the prosecution would surely have put up evidence or argument to this effect. As to the other argument by the prosecution, namely that it was “speculation” that there would be long delays before his appeal was heard by the Supreme Court, Justice Mwondha said it was not “speculation” that there would be a substantial delay in the appeal being heard and finalized; delays were obvious, given the time the case had already taken to reach this point.
The law and precedent both allowed her to use her discretion in deciding what should be done in relation to the application. It was not a case in which the death penalty had been imposed – in such a matter she would have been barred from allowing bail. And under established precedent a court had to consider which, if any, of six or more stipulated conditions existed before deciding whether to grant bail; they did not all have to be present, but where two or more criteria existed, that might be sufficient to result in a grant of bail.
In her view, these conditions did exist, and so she released Sumbu on bail of UShs 100 000 000, ordering that the three sureties should also have to pay a similar amount. She further ordered that Sumbu should report to the Supreme Court registrar monthly from the end of May 2019 until the finalization of his appeal.