Besigye lawyer urges courts against retreating from duty to protect liberty

Kampala, Uganda | URN | The denial of bail to former Kampala Lord Mayor Erias Lukwago has reignited debate over whether Uganda’s courts are living up to their constitutional duty to protect personal liberty.

One of Dr Besigye’s lawyers, Abubaker Sekanjako, argues that the judiciary is increasingly retreating from its role as the guardian of the rights of accused persons.

Speaking during a public discussion hosted by Uganda Law Society President Isaac Ssemakadde, Ssekanjako, who has represented opposition leader Dr. Kizza Besigye in several constitutional cases, said a series of recent judicial decisions points to an emerging pattern in which detention is increasingly favoured over liberty, even where courts have the constitutional discretion to order otherwise.

The discussion was under the theme “Remand without Remedy: Is Uganda’s Judiciary Failing Human Rights?

His concern comes amid growing public debate over prolonged pre-trial detention, access to bail, habeas corpus applications, and the treatment of opposition politicians facing criminal charges.

“The Constitution presumes every accused person innocent until proven guilty,” Sekanjako said.

“No matter the offence,  whether it is murder, terrorism, or treason, so long as a person has not been tried and convicted, they remain an accused person. Courts must approach every application from that constitutional starting point. Unfortunately, what we increasingly see is that the gravity of an allegation is treated as if it is already proof of guilt. The seriousness of the charge overshadows the constitutional presumption of innocence,” he observed.

The advocate, who previously worked at Lukwago and Company Advocates before co-founding Olympia Advocates, has participated in several landmark constitutional and election cases, including the presidential election petition, the constitutional challenge to the age-limit amendment, and litigation involving military trials of civilians.

He was also among the lawyers who intervened in a Constitutional Court petition challenging Section 11 of the Human Rights Enforcement Act.

The constitutional Court two weeks ago, Sekanjako said he and other constitutional lawyers sought to join the case because they believed the Attorney General was effectively conceding the petition, leaving fundamental constitutional protections without meaningful defence.

“We realised that unless we intervened, nobody would adequately defend those constitutional guarantees,” he said.

“We had a clear position. We believed these protections are central to Uganda’s constitutional order. We were not joining the case merely as friends of the court; we had a direct interest in ensuring that rights which protect every Ugandan from abuse by the state are not weakened through litigation.”

On the controversy about the denial of bail to opposition leaders, Ssekanjako stated that bail is about liberty, not punishment.

He said the remand of former Kampala Lord Mayor Erias Lukwago was one of the clearest examples of what he described as the judiciary’s increasingly restrictive approach to liberty.

He argued that despite medical concerns raised before the court, the decision to return Lukwago to prison ignored constitutional guarantees protecting accused persons.

Referring to the proceedings, Ssekanjako said the court had been presented with uncontroverted arguments that Lukwago required specialised medical care outside prison.

“The right call would have been to send him to Mulago, at the very least, not Luzira. The court was presented with medical concerns and extensive submissions, yet there was no meaningful response to those arguments. Instead, the decision was to remand him. That illustrates the growing tendency to subordinate liberty and health to detention.”

He said Article 23 of the Constitution guarantees detained persons access to medical treatment and legal representation, arguing that courts should actively enforce those protections instead of treating detention as the default option.

Ssekanjako argued that many judicial officers now begin with the seriousness of the offence instead of the constitutional right to liberty, reversing principles that have guided criminal justice for decades. He cited former Principal Judge James Ogoola’s landmark interim bail decision in the Besigye case in 2005, describing it as one of the strongest judicial affirmations of liberty ever delivered in Uganda.

“Justice Ogoola made it very clear that it is the responsibility of the court to justify why an accused person should remain in custody,” Sekanjako said. “The duty is not on the accused to convince the court that they deserve freedom. The duty lies with the court to explain why liberty should continue to be taken away. That understanding places constitutional rights where they belong, at the centre of criminal justice.”

According to Ssekanjako, later decisions have gradually retreated from that standard. “Courts today appear restrained from asserting their constitutional authority,” he said.

“Instead of acting as guardians of liberty, many decisions now appear to prioritise detention. The constitutional provisions remain the same, but the willingness to breathe life into them has diminished.”

Ssekanjako also reflected on his role in representing opposition leader Dr. Kizza Besigye following the Supreme Court’s decision declaring the trial of civilians before the General Court Martial unconstitutional.

He said the legal team faced an unprecedented situation because the Supreme Court had ordered its judgment to take immediate effect, yet Besigye remained in prison while prosecutors had not transferred his case to civilian courts.

“We found ourselves asking a simple constitutional question,” he recalled. “If the General Court Martial could no longer lawfully exercise jurisdiction over civilians, under what lawful authority was Dr. Besigye still being detained? The Director of Public Prosecutions had not yet taken over the matter, yet prisons continued holding him. We considered the writ of habeas corpus because we believed the continued detention raised serious constitutional questions.”

Although the application was overtaken by events after Besigye was subsequently produced before a civilian court, Sekanjako said the incident illustrated weaknesses in the protection of personal liberty.

Ssekanjako expressed concern that courts have increasingly taken a narrow view of habeas corpus, one of the oldest legal safeguards against unlawful detention.

He criticised decisions where courts declined to order the production of missing detainees after security agencies denied holding them.

” It defeats logic. The purpose of habeas corpus is not to wait for the state to admit that it arrested someone. If the state could simply deny custody and defeat the application, then the remedy would become meaningless. The court must assess the evidence before it and compel accountability wherever there is a reasonable basis to believe the state knows the whereabouts of a disappeared person.”

He added that international human rights standards impose a duty upon governments to account for every individual within their territory. “The state bears that obligation. Whenever credible evidence suggests someone has disappeared after contact with state agents, courts should require an explanation rather than accept blanket denials,” he said.

Ssekanjako also cited the late Kawempe North MP Muhammad Ssegirinya as an example of what he believes were missed opportunities for the courts to uphold constitutional protections.

Despite presenting medical reports showing the legislator’s deteriorating health during prolonged detention, he said repeated bail applications were unsuccessful.

“We placed medical documentation before the court showing his condition. Those documents demonstrated that his health could only properly be managed outside prison. Yet the courts repeatedly remanded him. Looking back, it raises profound questions about how judicial discretion was exercised where liberty and the right to health intersect.” Sekanjako said.

He said there have been inconsistencies in judicial decision-making on bail applications.

He gave an example of Rwenzururu King Charles Wesley Mumbere, who was allowed by the High Court to travel to Kasese under strict conditions to bury his mother. According to Sekanjako, the decision showed that courts can balance liberty with the public interest even in serious criminal cases.

“The judges demonstrated that the gravity of the offence must not always be prioritised over liberty. No matter whether someone is charged with treason, terrorism, or murder, they remain an accused person until convicted. If there are legitimate concerns that the person may abscond, the court has many options; it can impose conditions, require security, or direct the state to supervise the accused throughout the period of temporary release.”

He contrasted that decision with the case of detained NUP politician, Alex Waiswa Mufumbiro, who was denied permission to leave prison to bury his wife.

He argued that the different outcomes exposed inconsistencies in the exercise of judicial discretion. “The question is what principle distinguishes the two cases,” he said, arguing that similar constitutional considerations should produce consistent judicial outcomes. Sekanjako also challenged explanations that shortages of judges make it difficult to hear urgent bail applications. He pointed to the election petition involving Justine Nameere, in which a judge was deployed from Kampala to Masaka to hear the matter. “If a judge could be dispatched to determine an election dispute, why can’t the judiciary do the same when someone’s liberty is at stake?” he asked.

“Fixing a bail application should not become an impossible exercise. We have many judges. If one station has no available judicial officer, another can be assigned. We saw that happen in an election matter. The same urgency should apply where a person’s constitutional right to liberty is involved.”

Ssekanjako argued that the comparison demonstrated that the judiciary has the administrative capacity to prioritise urgent cases when it chooses to do so.

He maintained that liberty should receive at least the same institutional urgency as election litigation because prolonged pre-trial detention directly affects fundamental constitutional rights.

He contrasted the treatment of accused persons with the expectations judicial officers themselves have regarding access to specialised healthcare.

Asked by Ssemakadde whether the judiciary’s Electronic Court Case Management Information System (ICMIS) has improved access to justice, he acknowledged its potential benefits. He, however, said lawyers continue to face practical obstacles that sometimes unnecessarily prolong detention.

“You may upload every document required for a bail application. Then the judicial officer says, ‘I cannot see the documents.’ Even when you have the original hard copies in court, they may refuse to consider them because the electronic system has not reflected the upload. The consequence is another week on remand while paperwork is sorted out. Technology should reduce barriers to liberty, not create new ones,” he explained.

He also criticised delays in admitting electronically filed documents and issuing hearing notices, saying these technical challenges frequently disrupt court schedules.

He maintained that the Constitution contains adequate protections for personal liberty but argued that the challenge lies in their implementation.

Ssekanjako urged judicial officers to adopt a more purposive interpretation of constitutional rights, arguing that courts must remain independent guardians against abuse of state power.

“The Constitution was not written to become a museum piece. Its provisions must continue to grow and respond to the demands of every generation. Human dignity evolves with society, and constitutional interpretation must evolve with it. If courts become hesitant to defend liberty, then the rights guaranteed on paper risk becoming promises that citizens cannot meaningfully enjoy,” he argued.

His criticism comes as lawyers and civil society organisations continue to debate access to bail, prolonged remand, and the judiciary’s role in protecting fundamental rights amid politically sensitive prosecutions.