Legal Proceedings and Constitutional Ruling in Uganda
The High Court in Kampala recently made a significant ruling regarding the case of veteran opposition politician Kizza Besigye and his co-accused Hajj Obeid Lutale. The court declined to refer their application to the Constitutional Court, stating that the matter does not involve a substantial question of constitutional interpretation.
In a decision delivered on Thursday, Justice Emmanuel Baguma ruled that the application filed by Besigye, along with Lutale and Capt. Denis Oola, did not meet the requirements outlined in Article 137(5)(b) of the Constitution for referral to the Constitutional Court. According to Baguma, the accused’s legal team failed to present a prima facie question of law that would warrant such a referral.
“I accordingly decline to refer the proposed question of law to the Constitutional Court and direct that the matter be fixed for scheduling and plea taking,” said Baguma.
The accused individuals are facing treason charges and had sought to have their case referred to the Constitutional Court. Their lawyers argued that Justice Baguma, against whom they have filed a formal complaint before the Judicial Service Commission (JSC), could not preside over their trial impartially. They framed their constitutional question as follows: “Whether a court presided over by a judicial officer against whom a complaint by the accused persons seeking removal from office is pending is an independent and impartial court in accordance with Article 28(1) and Article 44(c) of the Constitution.”
However, Baguma ruled that the matter did not involve a genuine constitutional interpretation but rather an allegation of bias, which could be addressed through ordinary judicial processes. He cited precedents such as Sheikh Abdul Karim Sentamu & Another v Uganda (1998) and Hon. Sam Kuteesa v Attorney General (2011), emphasizing that a reference to the Constitutional Court can only occur when a real question of constitutional interpretation arises.
“However much a party may request, he cannot have referred a matter that does not involve the interpretation of the Constitution. Nor can a party give the court jurisdiction which the court does not have by law,” Baguma stated.
The judge further described the allegations of bias as speculative, noting that the existence of a complaint before the JSC does not automatically disqualify a judge from handling a case. He emphasized that the principles of the right to a fair hearing, as outlined in Article 28 of the Constitution, must be observed by the court.
Baguma also pointed out that none of the authorities cited by Besigye’s lawyers were relevant to the issue of constitutional reference. This included cases such as Professor Isaac Newton Ojok v Uganda and Tumaini v Republic (1972).
Earlier this week, Besigye’s legal team, led by Martha Karua, Erias Lukwago, Ernest Kalibbala, and Fredrick Mpanga, had requested Justice Baguma to recuse himself, citing a conflict of interest arising from their complaint before the JSC. However, the judge declined to step aside, ruling that the mere filing of a complaint does not prevent a judge from continuing to preside over a matter.
Following Thursday’s ruling, Besigye’s lawyers requested time to consult with their clients regarding the next course of action. The court subsequently adjourned the proceedings to December 4, 2025.
The session briefly descended into commotion when Lutale’s daughter, Mariam Obeid Lutale, protested the judge’s decision. Court security intervened swiftly, detaining her and escorting her to the holding cells within the court premises.