By Spy Uganda
Defence lawyers representing opposition figure Dr. Kizza Besigye and his co-accused Obeid Kamulegeya Lutale have petitioned the High Court to refer their treason trial to the Constitutional Court, citing a fundamental question about judicial impartiality and the right to a fair hearing.
The move comes in the wake of a controversial ruling by Justice Emmanuel Baguma, who on Wednesday declined to recuse himself from the case despite having been accused by the defence of bias and incompetence — allegations currently pending before the Judicial Service Commission (JSC).
Lead defence counsel Ernest Kallibala told court that the situation raises serious constitutional questions under Articles 28(1) and 44(c) of the Constitution, which guarantee an independent and impartial tribunal.
“The question is whether a judge who is already a respondent to a complaint before the Judicial Service Commission can fairly determine the innocence of the very person accusing him,” Kallibala submitted.
He invoked Article 137(5) of the Constitution, which empowers courts to refer matters for constitutional interpretation whenever a substantial question of law arises.
According to Kallibala, the principle at stake is not about personal grievance but about constitutional integrity — whether justice can still be seen to be done when the presiding judge’s impartiality is under formal investigation.
The prosecution, however, opposed the application, insisting that no genuine constitutional issue exists. They cited the precedent in Uganda vs Serugo Ismail v Kampala Capital City Authority & Attorney General, which held that dissatisfaction with a judge’s conduct does not automatically translate into a constitutional question.
Kallibala countered that the prosecution’s opposition was “curious and misplaced,” arguing that its duty is to present evidence, not to dictate whether the defence may seek constitutional interpretation.
He stressed that the ongoing complaint against Justice Baguma was purely between the accused and the Judicial Service Commission — a matter the prosecution should not interfere with.
Defence lawyer Erias Lukwago also criticized the timing and tone of Justice Baguma’s ruling, saying it reinforced perceptions that “the case is being managed with personal interest rather than judicial detachment.”
Judge Dismisses Bias Claims as Unfounded
In his ruling, Justice Baguma refused to step aside, describing the accusations as baseless and unsupported by law.
“It is my considered view that the denial of mandatory bail was decided on its own merit based on the facts and the law,” he stated, adding that such a decision cannot be interpreted as proof of bias.
He further asserted that the existence of a pending complaint before the JSC “is not a legal bar to judicial proceedings” and that recusal on such grounds would set a dangerous precedent.
“The pendency of a complaint against a judicial officer does not automatically disqualify him from handling a case,” he ruled, insisting that the High Court retains full jurisdiction over the matter.
Dr. Besigye had last week made a passionate address before court, accusing the judge of gross incompetence and systematic bias, alleging that the court was “being used to legitimise prolonged illegal detention.” He and Mr. Lutale have now spent over 330 days in detention awaiting trial.
Defence Pushes for Constitutional Review
The defence’s renewed push for a constitutional reference now hinges on a single question:
Can a court presided over by a judicial officer facing an active complaint for removal from office be deemed independent and impartial within the meaning of Articles 28(1) and 44(c) of the Constitution?
Lawyers argue that once a judge becomes the subject of such a serious disciplinary process, his capacity to dispense justice — especially in a case involving his accuser — is irreparably compromised.
“The gravity of the complaint itself — one that seeks the judge’s removal from office — fundamentally undermines public confidence in his neutrality,” Kallibala noted.
The High Court is expected to rule on October 6 whether to allow the matter to proceed to the Constitutional Court before the main treason trial resumes.
If granted, the referral could set a significant precedent in Uganda’s jurisprudence — clarifying how courts should handle conflicts of interest involving judicial officers under investigation while safeguarding the constitutional right to a fair hearing.
Background
Dr. Kizza Besigye, a four-time presidential contender and long-time critic of President Yoweri Museveni’s administration, was arrested alongside Obeid Lutale on charges of treason and incitement to violence.
Their detention — now stretching beyond 330 days — has drawn widespread condemnation from opposition leaders and human rights defenders, who describe it as politically motivated persecution disguised as prosecution.
Legal analysts say the ongoing dispute over Justice Baguma’s impartiality may expose deeper structural questions within Uganda’s judiciary — particularly how judicial independence is preserved when accusations of bias intersect with politically sensitive trials.
