No law bars non-Ugandans from applying for bail, court told

Lawyers of the jailed American couple that is accused of aggravated trafficking and aggravated torture have told the court that there is no law in Uganda that bars non-citizens from applying for bail.

The couple; Mr Nicholas Spencer and Ms Mackenzie Leing Mathias Spencer that is facing charges of aggravated trafficking of a 10-year-old, appeared Thursday before the High Court Judge Isaac Muwata seeking bail pending the hearing of the charges against them.

Their lawyer Mr David Mpanga, while citing the decision of the Constitutional Court in the case against the Attorney General and Dr Kizza Besigye, noted that bail should not be denied mechanically simply because the state wishes it.

Mr Mpanga presented three Ugandan sureties who noted that they are friends of the couple, have employment, with fixed places of abode and understand their duties as sureties.

“There is no bar in law to non-Ugandans applying for bail. There is no citizen requirement as for what is required for a non-citizen is the same as for a citizen,” Mr Mpanga submitted.

He further noted that the couple has serious pre-existing medical conditions that require management outside the confines of prison thus presenting medical documents from the United States of America to prove the same.

“It is our humble request that this court finds the medical evidence sufficient for it to find exceptional circumstances namely grave illness suffered by both the applicants,” Mr Mpanga submitted.

The trial judge Muwata adjourned the matter to March 15 when the state is expected to respond to the bail application.

In her affidavit, Ms Mackenzie (32) a consultant with New Frontiers Technology Consult Limited noted that they have been married to her husband since 2013.

“That at the age of 16, I was diagnosed with Ehlers-Danlos Syndrome an inherited disorder that affects connective tissues in the body especially joints, skin and blood vessel walls,” reads in part her affidavit.

Adding …“Owing to this disease, I do not and cannot have biological children of my own. The nature of the disease is such that having biological children is overly risky to the mother owing to the high possibility of rupture of blood vessels and organs such as the uterus and intestines.”  

Ms Mackenzie who has undergone nine surgeries and the last being in 2021 for purposes of routinely stabilising parts of her body, states that she lives in constant pain and thus cannot be adequately managed in custody and that she is already having difficulty in receiving pain management medication.

Court documents indicate that the couple moved to Uganda in early 2017 for the purposes of fostering children with the intent of adopting them through Carolina Adoption Services and Wasatch International Adoptions both accredited and ethical adoption agencies in the United States which connected them with children’s home called Welcome Home Ministries thus fostering three children.

According to the documents the couple fostered the three children through a lawful process under the auspices of the Ministry of Gender Labor and Social Development and the supervision of the court.

“That the said children remained in our foster and physical care until our arrest and since then their whereabouts are unknown to us and during the time, we have fostered them, we have provided to each one of them together as a family all the necessities of life,” the bail application reads in part.

Ms Mackenzie further states that one of their foster children has a complex psychiatric disorder which was diagnosed by a clinical psychologist and causes him to engage in serious disruptive behaviour including self-harm and causing physical harm to others.

“That our struggle at managing the disruptive and harmful behaviour of this child is at the centre of the misunderstanding which led to the allegations we face in this case,” she stated in her affidavit.

Prosecution led by Ms Joan Keko and Joseph Kyomuhendo alleges that the couple between December 2020 and December 2012 at Naguru in Kampala district recruited, transported and maintained the 10-year old whose name is withheld because he is a minor by means of the position of vulnerability for purposes of exploitation.

It is further alleged that the couple also committed an act of aggravated torture charges contrary to the Prevention and Prohibition of Torture Act 2012 against the minor whose punishment upon conviction is life imprisonment.

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