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“HIV+ or not, all are presumed innocent before trial,” rules High Court in landmark bail case

Do persons living with HIV enjoy a right to a fair trial and a presumption of
“Yes,” was the emphatic verdict from Justice Musa Ssekaana of Mbarara High
Court, according to a decision he made in a case involving Adrine Kemigisha, a
24-year-old HIV positive girl from Bushenyi District.
When Kemigisha was accused of, and charged with, aggravated defilement of
an 11-year-old boy, she denied the charge. But that did not stop the local press
around Uganda from vilifying and shaming her in newspaper articles and radio
broadcasts as a monster and almost passing a guilty verdict against the accused
even before her trial had begun.
Kemigisha was remanded to Nyamushekyera Government Prison in July 2019,
where she spent seven months.
In that time, UGANET, which works to fight the criminalization of persons
living with HIV/AIDS, examined Kemigisha’s case file. The organization’s
research presented evidence that Kemigisha’s case is likely to be one of many in
the recent past where persons living with HIV have been criminalized within
their communities because of their status.
Consequently, UGANET offered to support Kemigisha at the High Court, the
only bench at which her case or bail application can be heard.
During the bail application, Kemigisha, was represented by Counsel Paul
Mukiibi, a private lawyer hired by UGANET. He presented a medical report
from Bushenyi Medical Center showing that she is HIV positive and requires
special attention because her condition had deteroriated. He also presented
before Court three sureties for the applicant.
However, the counsel for the state put up a strong objection to the bail
application, arguing that there was no report from the prison that they cannot
manage the young lady’s HIV status. The state counsel also argued that
aggravated defilement is such a grave offence that bail should not be granted.
For Kemigisha, the position taken by the counsel for the state must have
brought back memories of the vilification by the media. This is because even
before the Courts, her HIV status had not only turned a case of alleged

defilement into one of aggravated defilement, but it was also threatening to
deny Kemigisha her Constitutionally-granted right to bail.
Justice Ssekaana, however, considered both arguments and then decided in his
January 24, 2020 ruling that any applicant for bail, whether living with
HIV/AIDS or not, deserves a right to freedom.
In his assessment of each side’s arguments, Justice Ssekaana said the spirit to
grant bail is embodied in Article 28 (3) (a) and Article 23 (6) (a) of the
Constitution, while the discretionary power of Court to grant bail is captured
under Section 14 (1) of the Trial on Indictments Act.
Justice Ssekaana further noted that Section 15 of the Trial on Indictments Act
says Court can grant bail under exceptional circumstances, such as grave illness,
presentation of a certificate of no objection from the Director of Public
Prosecutions (DPP), infancy or advanced age.
“In the instant case, the Applicant pleads exceptional circumstances as they are
severely HIV positive and require special attention, although there is no
presented proof of a report from prison that their condition could not be
handled,” submitted Justice Ssekaana.
According to Justice Ssekaana, a bail applicant should not be incarcerated if
they have a fixed place of abode and has sound sureties capable of guaranteeing
that the accused will comply with the conditions of his or her bail.
“I, therefore, find that in the view of the personal liberty, the severity of the
Applicant’s HIV status and the proof of a fixed place of abode and substantial
sureties as the applicant has adduced, the Applicant’s matter is one to rightly
grant bail,” he wrote.
Kemigisha’s successful bail application is one of six cases that UGANET had
handled during the last six months, says Dora Kiconco Musinguzi, the
Executive Director of UGANET.
“We have had one successful verdict and three successful bail applications. Two
cases remain challenging but we now have hope that the Courts have started to
open up to address these cases with fairness and equity,” she said.
Ms Musinguzi added, “We celebrate this first win in the legal battle to have her
freedom back. Indeed, court is now opening up to listen to issues of HIV

At a time when there is evidence of rising stigmatization of persons living with
HIV because of their status, UGANET is calling on the public to take cue from
the courts and take a stand against HIV-related stigma that is causing such cases
to mushroom in different parts of Uganda.

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