DPP opposes bail for suspects in kidney harvest case

Kampala, Uganda | THE INDEPENDENT | Prosecutors have asked the International Crimes Division of the High Court to dismiss the bail application filed by five people accused of harvesting a kidney from an immigrant worker, Judith Nakintu arguing that it is premature at this stage of pre-trial hearing.

The accused are the directors of Nile Treasure Gate Company Limited, Abubaker Sulaiman Kato and Muhammad Mariam, an agent Ali Hassan, the supervisor of the company Jennifer Nalunga, and a board member Salmah Muhammad.

The group which is charged with aggravated trafficking allegedly used deceitful means to recruit, send, receive and confine Nakintu, a migrant domestic worker to Saudi Arabia for the purposes of removing her left kidney in a disguised accident, which has since caused her to suffer mutilation and a life-threatening illness.

The charges instituted against the group by Attorney General Kiryowa Kiwanuka state that the accused persons abused their power and authority and committed the said offenses between December 2019 and October 2021 in Kampala, Uganda and Saudi Arabia.

The accused persons were last month committed to face trial on the said charges in the International Crimes Division of the High Court by the Nakawa Chief Magistrates Court.

Prior to their committal, the accused persons through their lawyers led by Caleb Alaka had applied for bail in April 2022 on the basis that they spent ten days at Jinja road police station shortly after arrest and that the Nakawa court issued orders that they should be unconditionally released but the state defied.

The accused added that it was their right to apply for bail and that they will not interfere with prosecution witnesses and the ongoing investigations.

When the matter came up for hearing on Tuesday before the court presided over by Lady Justice Susan Okalany, the prosecutors led by Joseph Kyomuhendo raised a preliminary point of law and told the court that at this stage, it’s very premature for her to entertain a bail application given what the law says.

Kyomuhendo told the judge that under the Trial and Indictments Act as well as the regulations governing the International Crimes Division, a judge sitting at a pretrial hearing stage cannot entertain a bail application by the accused persons.

He said that instead, an accused person can only apply for bail shortly after the pretrial Judge has confirmed the charges against him or her and the case file is forwarded to the trial judge or a panel of judges who are supposed to try the accused person.

Kyomuhendo added that given this stage when prosecution evidence has not yet fully been adduced for the pretrial court to confirm the charges against the accused, it is very premature for them to seek bail.

But in response, the defense lawyer Caleb Alaka asked court not to uphold the point of law raised by the prosecution and go ahead and hear the bail application.

Alaka has argued that the Uganda Constitution which is the Supreme law of the land provides for bail at any stage of the case and restoration of a person’s right to a fair hearing and personal liberty.

He added therefore that the International Crimes Division Rules which the prosecutors are relying on to object to the hearing of the bail application cannot supersede and override the constitution.

Judge Okalany has now given them a week each to make further research and do written submissions regarding their arguments. She then promised to deliver her decision by mail on October 26th 2022 on whether to hear the bail application or not.

Earlier before this, the prosecution asked for an adjournment of the main case for pretrial on the basis that investigations in this case are incomplete and that they have dispatched a team of investigators to go to Saudi Arabia to conduct the remaining part of the investigations.

The prosecutor argued that this is not a usual case saying that it is peculiar because of the offense having been committed in different countries, and they therefore need a month to finalize investigations.

But the Defense lawyers asked for dismissal of the charges on the basis that the accused persons were committed to face trial on August 15th, 2022 after hearing that inquiries were complete and therefore it’s an abuse of the Court process for the Prosecutors to say investigations are incomplete at this stage when the accused are already in the High Court.

In her brief ruling on this, Lady Justice Okalany declined to dismiss the charges and gave the Prosecution a one-month adjournment to finalize investigations and share part of the evidence in their possession with the defense lawyers, saying the law provides for that during the pretrial stage.

On January 30th 2022, Nakintu was warded 270 million shillings by a Court in Saudi Arabia for the loss of her kidney in a case of a syndicated crime involving her Saudi Arabia employees where it was discovered that she had been taken to a hospital allegedly for a COVID-19 test and then later disguised as an accident and returned to Uganda. But Mulago National Referral Hospital did examinations on her and discovered that her left kidney was missing.

Speaking to Uganda Radio Network, Abdallah Kayonde, the President of Uganda Migrant Worker’s Voice said that Nakintu’s condition has never stabilised and that it is now worse because she cannot do anything without being supported, including eating and visiting the toilets and that whatever she eats “returns back”.

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