The High Court in Kampala has dismissed a constitutional application by Dr Kizza Besigye and Hajji Obeid Lutale, ruling that the exclusion of Senior Counsel Martha Karua from Uganda and the detention of lawyer Erias Lukwago did not violate their right to legal representation or a fair hearing.
Justice Simon Peter Kinobe delivered the 42-page judgment on Tuesday, rejecting the applicants’ argument that the two incidents had compromised their defence in the ongoing treason case.
Besigye and Lutale had challenged the circumstances surrounding Karua’s deportation and Lukwago’s arrest, arguing that the actions interfered with their constitutional right to be represented by advocates of their choice.
The two are facing trial alongside Captain Denis Oola in Criminal Session Case No. 335 of 2025, in which they are accused of offences related to an alleged plot to overthrow the Government.
The applicants had particularly contested the decision by immigration authorities to stop Karua at Entebbe International Airport on June 22, 2026, classify her as a prohibited immigrant and remove her from the country.
They argued that the decision was unlawful and unfair because Karua was allegedly not given an opportunity to be heard. They also disputed the use of the term “persona non grata” as a basis for declaring her a prohibited immigrant under the Uganda Citizenship and Immigration Control Act.
Besigye and Lutale also argued that Lukwago’s arrest and subsequent remand at Luzira Prison on charges of misprision of treason prevented him from participating in their defence as one of their lawyers.
The Attorney General and Chief of Defence Forces Gen Muhoozi Kainerugaba, who were sued in the matter, had urged the court to dismiss the application, arguing that it was intended to delay the criminal proceedings.
However, Justice Kinobe found that the applicants had not demonstrated that the absence of Karua and Lukwago substantially affected their ability to secure effective legal representation.
The judge noted that Besigye and Lutale continued to have access to a sizeable defence team comprising about 13 law firms and more than 50 advocates of their choice.
He further observed that the trial court had on several occasions adjourned proceedings to allow the accused persons to reorganise their legal team whenever challenges arose.
The trial court had also directed its Registrar to give Besigye and Lutale a list of State Brief advocates from whom they could choose should they decide to invoke their constitutional entitlement to legal representation.
According to Justice Kinobe, the steps taken by the trial court did not support the applicants’ claim that they had been deliberately denied lawyers of their choice.
Karua Challenge
On Karua’s exclusion from Uganda, Justice Kinobe declined to determine whether immigration officials acted lawfully in blocking her entry.
He held that a direct challenge to an immigration decision falls under the High Court’s supervisory jurisdiction and should ordinarily be pursued through judicial review rather than a constitutional petition of the nature filed by Besigye and Lutale.
The judge said the applicants remained free to demonstrate that the immigration decision had infringed, or threatened to infringe, their constitutional rights. However, he found that the evidence presented did not establish such a violation.
Justice Kinobe also rejected the argument that Karua’s physical presence in Uganda was necessarily required for the defence to proceed.
He referred to the Judicature (Electronic Filing, Service and Virtual Proceedings) Rules, 2025, and the Judicature (Visual-Audio Link) Rules, which allow parties to participate in proceedings remotely.
The judge said the defence could have asked the trial court to make arrangements for Karua to participate virtually if her contribution was considered necessary.
He nevertheless stressed that the availability of virtual proceedings does not take away the constitutional right to counsel of one’s choice, but can be used to facilitate effective representation where appropriate.
Lukwago’s Detention
On Lukwago, the court acknowledged that his absence from the proceedings was a result of his detention but held that the detention of a lawyer does not automatically amount to a violation of his client’s constitutional rights.
Justice Kinobe said the key issue was whether Lukwago’s absence, viewed alongside the other circumstances of the case, materially weakened Besigye and Lutale’s ability to obtain effective legal representation.
The judge concluded that the applicants had failed to prove that it did.
He also emphasised that lawyers are subject to the same laws as other citizens and that acting as counsel in a criminal case does not grant a person immunity from criminal proceedings.
The respondents had maintained that there was no evidence that any Government agency had deliberately interfered with the accused persons’ choice of lawyers or that the absence of Karua and Lukwago had prejudiced the treason trial.
They also argued that the applicants had used the wrong legal procedure in challenging Karua’s immigration status and should instead have sought judicial review.
Justice Kinobe agreed with the respondents on this point, holding that the legality of the immigration decision could not properly be determined through the constitutional proceedings before him.
The court ultimately found that Besigye and Lutale had not been denied a fair hearing under Article 28 of the Constitution and that the circumstances did not amount to a violation of the fair-hearing protections under Articles 28 and 44.
Justice Kinobe, however, reaffirmed that the constitutional right to choose one’s lawyer remains protected, subject to the law and the practical requirement that counsel be reasonably available to participate in proceedings.
The application was dismissed without an order for costs. The judge said the matter raised important constitutional questions that should not attract financial penalties.
Besigye, Lutale and Captain Oola are expected back before Criminal Division Judge Emmanuel Baguma on August 18, 2026. The court is expected to consider a medical report regarding Besigye’s fitness to stand trial.
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