Besigye Lawyer Accuses Courts of Failing to Defend Constitutional Liberties

The refusal to grant bail to former Kampala Lord Mayor Erias Lukwago has renewed debate over whether Uganda’s courts are adequately safeguarding constitutional rights, according to constitutional lawyer Abubaker Sekanjako.

Speaking during a public discussion organised by Uganda Law Society President Isaac Ssemakadde under the theme “Remand without Remedy: Is Uganda’s Judiciary Failing Human Rights?”, Sekanjako argued that recent court decisions suggest an increasing preference for detention over liberty, even where judges have the discretion to order release.

The lawyer, who has represented opposition figure Dr Kizza Besigye in several constitutional cases, said courts should begin every criminal proceeding from the constitutional principle that an accused person is presumed innocent until proven guilty.

“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.”

His remarks come amid growing concern among lawyers and civil society groups about prolonged pre-trial detention, access to bail and the use of habeas corpus applications.

Sekanjako pointed to the case of Mr Lukwago, arguing that the court failed to adequately consider medical concerns that had been raised before ordering his continued detention.

“The right call would have been to send him to Mulago, at the very least, not Luzira,” he said.

“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.”

According to Sekanjako, Article 23 of Uganda’s Constitution guarantees detained persons access to medical treatment and legal representation, protections which courts should actively enforce.

He argued that some judicial officers now focus first on the seriousness of criminal charges rather than on the constitutional right to liberty.

Citing a 2005 interim bail ruling involving Dr Besigye, delivered by former Principal Judge James Ogoola, Sekanjako described the judgment as a landmark defence of personal freedom.

“Justice Ogoola made it very clear that it is the responsibility of the court to justify why an accused person should remain in custody,” he 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.”

Sekanjako also reflected on legal efforts made after the Supreme Court ruled that civilians could no longer be tried by military courts. He questioned the legality of Dr Besigye’s continued detention during the transition period before his case was transferred to a civilian court.

“We found ourselves asking a simple constitutional question,” he said.

“If the General Court Martial could no longer lawfully exercise jurisdiction over civilians, under what lawful authority was Dr Besigye still being detained?”

The lawyer further expressed concern about what he described as a narrowing interpretation of habeas corpus, a legal remedy used to challenge unlawful detention.

“It defeats logic,” he said.

“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.”

He argued that courts should require state agencies to account for missing persons whenever credible evidence suggests they may have been detained.

Sekanjako also cited the case of the late Kawempe North MP Muhammad Ssegirinya, saying repeated bail requests were rejected despite medical evidence indicating his health was deteriorating while in custody.

“We placed medical documentation before the court showing his condition,” he said.

“Those documents demonstrated that his health could only properly be managed outside prison. Yet the courts repeatedly remanded him.”

The lawyer additionally questioned inconsistencies in judicial decisions, comparing a court order that allowed Rwenzururu King Charles Wesley Mumbere to travel under supervision to bury his mother with the refusal to permit detained National Unity Platform politician Alex Waiswa Mufumbiro to attend his wife’s burial.

“The question is what principle distinguishes the two cases,” he said.

He also dismissed suggestions that shortages of judges make it difficult to hear urgent bail applications, arguing that the judiciary has demonstrated its ability to quickly deploy judges when necessary.

“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.

Sekanjako acknowledged that the judiciary’s Electronic Court Case Management Information System (ICMIS) has the potential to improve access to justice but said technical challenges continue to delay hearings and prolong detention.

“You may upload every document required for a bail application. Then the judicial officer says, ‘I cannot see the documents,'” he said.

“The consequence is another week on remand while paperwork is sorted out. Technology should reduce barriers to liberty, not create new ones.”

Despite his criticism, Sekanjako maintained that Uganda’s Constitution contains sufficient protections for personal liberty. He argued that the greater challenge lies in ensuring courts apply those safeguards consistently and robustly.

“The Constitution was not written to become a museum piece,” he said.

“Its provisions must continue to grow and respond to the demands of every generation. If courts become hesitant to defend liberty, then the rights guaranteed on paper risk becoming promises that citizens cannot meaningfully enjoy.”

His comments add to an ongoing national debate over bail, prolonged remand and the role of the judiciary in protecting fundamental rights, particularly in politically sensitive cases.