50+ STATE LAWYERS NOT ENOUGH? Besigye Loses Bid To Restore Karua, Lukwago To Defence
Erias Lukwago and Martha Karua at the General court Martial at Makindye
The High Court in Kampala has ruled that the denial Senior Counsel Martha Karua from entering Uganda and the detention Erias Lukwago, did not deprive Dr Kiiza Besigye and Hajji Obeid of their constitutional right to legal representation or a fair hearing.
Justice Simon Peter Kinobe delivered the judgment Tuesday as he ddismissed an application Dr. Kizza Besigye and Obeid Lutale.
Dr. Besigye and Lutale had petitioned the court over the circumstances leading to the deportation of Martha Karua and Lukwago’s arrest.
The two lawyers were leading Besigye and Lutale’s defence jailing in relation to the ongoing treason case.
The applicants had argued that the two incidents interfered with their right to be represented by advocates of their choice and threatened the fairness of Criminal Session Case Number 335 of 2025, in which Besigye, Lutale and Captain Denis Oola are facing trial on charges of plotting to overthrow the government of Uganda.
They particularly challenged the decision by immigration authorities to block Karua at Entebbe International Airport on June 22, 2026, classify her as a prohibited immigrant and expel her from Uganda.
They argued that the decision was unlawful, unfair, made without allowing Karua to be heard, and based on “persona non grata”, which they contended is not a recognised ground for declaring a person a prohibited immigrant under the Uganda Citizenship and Immigration Control Act.
The applicants, who had sued the Attorney General and the First Son, Chief of Defence Forces Muhoozi Kainerugaba, also complained that Lukwago’s arrest and subsequent remanding him in Luzira prison on misprision of treason charges prevented him from participating in their defence as one of their lawyers.
Both Muhoozi and the Attorney General had asked for dismissal of the case with costs for being a tactic aimed at delaying the treason trial.
However, in his 42-page judgment, Judge Kinobe has found that Besigye and Lutale had failed to prove that the actions complained of substantially impaired their ability to obtain effective legal representation.
The judge noted that Besigye and Lutale had continued to enjoy representation by approximately 13 law firms comprising more than 50 advocates of their own choosing.
Kinobe also pointed to the conduct of the trial court, which repeatedly adjourned the proceedings to give the applicants time to reorganise their defence whenever difficulties concerning their legal representation arose.
The trial court also directed its Registrar to provide Besigye and Lutale with a list of State Brief advocates from whom they could select lawyers if they wished to invoke that constitutional safeguard.
According to Judge Kinobe, these measures were inconsistent with any suggestion that the trial court intended to deprive Besigye and Lutale of their right to counsel of their choice.
On Karua, the judge has declined to determine whether the immigration authorities acted lawfully in blocking her entry into Uganda.
Kinobe has ruled that a direct challenge to the immigration decision falls within the supervisory jurisdiction of the High Court and should be brought through judicial review rather than through the way Besigye and Lutale had filed this matter.
The judge said Besigye and Lutale were at liberty to establish any infringement or threatened infringement of their constitutional rights arising from the consequences of the immigration decision, but found that the evidence before court did not establish such an infringement.
Kinobe further observed that the physical presence of Karua in Uganda was not, in every circumstance, indispensable to the applicants’ defence.
He referred to the Judicature (Electronic Filing, Service and Virtual Proceedings) Rules, 2025, and the Judicature (Visual-Audio Link) Rules, which provide for remote participation in judicial proceedings.
The judge said Besigye and Lutale could have sought appropriate directions from the trial court for Karua to participate remotely if they considered her involvement necessary for the preparation and conduct of their defence.
He nevertheless cautioned that the availability of virtual proceedings does not extinguish the constitutional right to counsel of one’s choice, but can provide one of the means through which meaningful legal representation is facilitated.
The court also considered the circumstances surrounding Lukwago’s absence from the proceedings.
Kinobe said the evidence showed that Lukwago’s absence resulted from his detention, but held that detention of a lawyer does not, by itself, establish a violation of another person’s constitutional right to legal representation.
The relevant question, according to the judge, was whether Lukwago’s absence, considered together with the other circumstances of the case, substantially impaired Besigye and Lutale’s ability to obtain effective legal representation.
The court then found that Besigye and Lutale had failed to prove this.
Kinobe further observed that the law applies equally to all persons and that the fact that a person is serving as counsel in ongoing litigation does not give that person immunity from the ordinary operation of criminal law.
The Attorney General, who represented Chief of Defence Forces General Muhoozi Kainerugaba and the Government in the case, had earlier asked the court to dismiss the application, arguing that Besigye and Lutale remained adequately represented by a large team of lawyers.
The respondents had also argued that the applicants had not demonstrated that any state agency deliberately interfered with their choice of counsel or that the absence of Karua and Lukwago had prejudiced their criminal trial.
On Karua’s immigration status, the respondents argued that the applicants had used the wrong legal procedure by attempting to challenge an administrative immigration decision through a constitutional application.
The Attorney General maintained that any challenge to the decision declaring Karua a prohibited immigrant should be pursued through judicial review.
The respondents further argued that the applicants had not established a causal link between Karua’s exclusion from Uganda and an alleged violation of their constitutional right to legal representation.
It is against this background that Kinobe has agreed that the immigration decision itself could not properly be determined in the present constitutional proceedings.
The judge also rejected the claim that the applicants had been denied a fair hearing, finding that the evidence did not establish deliberate interference by Muhoozi and the Government or substantial impairment of their access to legal representation.
The court has accordingly found that Besigye and Lutale were not deprived of their constitutional right to a fair hearing under Article 28 of the Constitution and that the circumstances did not amount to a violation of the non-derogable fair-hearing protections under Articles 28 and 44.
The judge, however, emphasised that the right to counsel of one’s choice remains constitutionally protected, although its exercise must be within the law and should involve lawyers who are reasonably available to attend court and facilitate the expeditious conduct of proceedings.
The application was dismissed without an order as to costs, as the Judge said the case raised fundamental constitutional questions which should not be burdened with pecuniary sanctions.
Besigye, Lutale and Captain Denis Oola will return before the Criminal Division Judge Emmanuel Baguma on August 18th 2026, as the Court expects a medical report to show whether he is fit to stand trial or not.
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