The High Court in Kampala has dismissed an application by opposition figure Kizza Besigye seeking to have his ongoing treason trial referred to the Constitutional Court, saying the case did not raise any substantial issue that warranted constitutional interpretation.
Besigye, together with his co-accused Hajj Obeid Lutale and Capt. Denis Oola, had asked the court to halt the trial before Justice Baguma, arguing that continuing with proceedings under a judge they had already complained about before the Judicial Service Commission (JSC) would compromise their right to an impartial hearing.
Their lawyers maintained that the matter touched directly on constitutional provisions that protect the right to a fair and independent trial.
The defence team had framed the central question as whether a judicial officer, against whom a complaint seeking removal from office is pending, can preside over a case in line with Article 28(1) and Article 44(c) of the Constitution.
In his ruling delivered on Thursday, Justice Baguma said the arguments raised by Besigye and his lawyers did not meet the required standard under Article 137(5)(b) of the Constitution to justify a reference to the Constitutional Court.
“In the final result, it is this court’s finding that counsels for the accused persons have not made out a prima facie question of law to warrant reference to the constitutional court,” the judge said. He directed that the case should proceed to scheduling and plea taking.
Justice Baguma stressed that the accusations of bias made against him were based on speculation, noting that courts must only refer matters to the Constitutional Court if a real question of constitutional interpretation arises.
“Article 137(5)(a) and (b) require that before a reference is made, the court must be satisfied that a prima facie case exists that interpretation of a constitutional provision is required. If this is not established, then no reference should be made,” he said.
He supported his position by citing past decisions, including Sheikh Abdul Karim Sentamu & Another v Uganda (1998) and Hon. Sam Kuteesa v Attorney General (2011).
He noted that the authorities relied on by the defence, such as Professor Isaac Newton Ojok v Uganda and Tumaini v Republic (1972), did not apply in this context.
“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,” the judge said.
He also dismissed the claim that the accused would not receive a fair hearing. “The allegations that the accused persons will not get a fair trial are an imagination because Article 28 of the Constitution lays down the principles of the right to a fair hearing, which this court is mandated to observe,” he added.
Moments after the ruling, there was drama in court when Hajj Lutale’s daughter protested the decision and was immediately arrested.
Earlier in the day, Besigye’s legal team — led by Martha Karua, Elias Lukwago, Ernest Kalibbala, and Fredrick Mpanga — had urged the judge to step aside from the case due to the pending complaint lodged with the JSC.
