Democracy and Human Rights watchdog, Legal Brains Trust, has petitioned the East African Court of Justice seeking interim orders directing Uganda’s High Court to release on bail Molly Katanga, the widow accused of murdering her husband Henry Katanga.  

Molly, 55, is accused of shooting dead her husband on November 2, 2023, in Kampala. She has so far made two unsuccessful bail application attempts on April 9 and May 21. On both applications, criminal division judge Isaac Muwata ruled that Molly does not make out sufficient peculiar circumstances for the court to consider and grant her bail.

Muwata fixed the start of her trial on July 2 – hence effectively keeping her in prison till then. Now Legal Brains is challenging the legality of those two High Court decisions. In the second bail application, Molly attached a medical report from prison where doctors examined her and concluded that she suffers from a grave illness that cannot be ably handled by medical facilities in prison.

In their April 15, 2024 report, doctors at Luzira prison wrote that she suffers from nasal sinusitis, vertigo – a sensational motion or spinning, breast masses and hypertension. The prison doctors then concluded that Molly requires a follow-up with a specialist ENT surgeon and monitoring of her breast symptoms, for which these services are absent in prisons. But Muwata stood his ground and denied her bail.

In their reference to the East African Court of Justice, Legal Brains argues that the High Court decided contrary to the national objectives and directive principles of state policy, which emphasize the importance of respecting, upholding and promoting equality, non-discrimination, personal liberty, dignity, and presumption of innocence, privacy, and the balancing of valid public safety concerns against the fundamental rights of suspects.

“It [court] was duty-bound to override the blatantly repugnant Sections 15(1) (a) and 15(3) of the Uganda Trial on Indictments Act Cap 23, which came into force on 6 August 1971 during President Idi Amin’s undemocratic reign, as well as the blatantly repugnant allegedly unwritten rule of compulsory detention when the main case is fixed for trial, and thus flouted the Treaty principles of democracy, rule of law and accountability,” reads the reference.

In addition, the watchdog contends that the High Court fatally disregarded an overriding treaty-based duty to revise the Ugandan law to consolidate developments on the right to bail, including by taking account of international law and treaty obligations as enshrined in some articles in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.  

They further argue that the High Court ignored soft law standards, the emerging jurisprudence of judicial and quasi-judicial organs of the African Union, of the United Nations Human Rights Committee, other treaty-based bodies, and of the national courts of other free and democratic societies committed to human rights and the rule of law, as well as the need for the elaboration of alternatives to detention that are not incompatible with the treaty.

These highlight anticipatory bail, house arrest (also known as home detention), and digital dimensions of the right to bail such as electronic monitoring and other appropriate technological developments. The reference is supported by an affidavit of Isabella Nakiyonga, a legal officer with Legal Brains Trust who says that she knows that treaty-compliant restrictions on liberty must be proportionate to the risk posed, and prison medical treatment alone does not justify the denial of bail. 

“If the suspect’s medical condition can be treated outside of prison, denying them bail for this reason constitutes an unnecessary restriction, and may disproportionately affect vulnerable individuals with medical conditions that are not promptly detected and/or certified by the prison staff, resulting in discrimination and avoidable cases of prison morbidity and mortality,” she argues.  

According to the evidence before the court, the Attorney General of Uganda/Government which is listed as the only respondent neither publishes official statistics on prison morbidity and mortality nor conducts regular inquests into prison mortality. 

This, the petitioners say, does not mean that the prisons are free of needless suffering, sickness and death and that prison officials have sporadically acknowledged some cases thrust into the public domain. To prove their case, the petitioner has listed several people who have died in prisons after being denied bail or shortly after being granted bail, which they say was unlawful and an infringement on their right to liberty, and presumption of innocence among others. 

Some of the cited deceased include German suspected paedophile Bernard Glaser, Joseph Musasizi Kifefe (opposition politician Kizza Besigye’s brother), and Peter Manyasi among others. For this matter, Legal Brains says that the East African Court of Justice is duty-bound to preserve Molly’s rights from further violations by invoking its inherent powers to temporarily cease her alleged unlawful detention and go ahead to release her on bail pending determination of their main case.

For the avoidance of ambiguity,  the petitioner is seeking a declaration that the respondent’s internal law and authorities must demonstrate a “compelling reason” to deny bail and that the laws cited and reasons given in the impugned decisions are insufficient to justify the denial of bail. 

They also want a declaration that Molly’s right to liberty was violated and go ahead to compensate her. Legal Brains Trust lawyer executive director Isaac Ssemakadde says: “We call upon the Council of Ministers to prioritize treaty-based justice by availing adequate resources to the regional court so that its judges can effectively attend to such urgent matters, like Molly Katanga’s case, and clear case backlog since 2020″

Molly is jointly charged with her two daughters; Martha Nkwanzi and Patricia Kakwanza who are accused of tampering with valuable evidence which would have been used in court to prove their father’s murder. The two daughters together with the family’s shamba boy George Amanyire and a nursing officer Charles Otai were each released on Shs 2 million cash bail more than three months ago, by the same judge who denied Molly bail.