High Court Judge Simon Peter M. Kinobe has dismissed a constitutional application by jailed opposition figure Col. (Rtd) Dr Kizza Besigye and Hajji Obeid Lutale, ruling that the pair failed to prove that the exclusion of their lead lawyer, Kenyan Senior Counsel Martha Karua, and the detention of their co-counsel Erias Lukwago had denied them their constitutional right to a fair hearing.<\/p>\n\n\n\n
The ruling represents a significant legal setback for Besigye and Lutale, who had asked the High Court to make sweeping declarations against Chief of Defence Forces Gen. Muhoozi Kainerugaba and the Attorney General over what they described as a coordinated campaign to dismantle their defence team.<\/p>\n\n\n\n
Justice Kinobe, however, found that the evidence before him did not establish a constitutional violation and dismissed the application without an order as to costs.<\/p>\n\n\n\n
The ruling was delivered on August 11, 2026 in Miscellaneous Application No. 248 of 2026, arising from Besigye and Lutale’s criminal trial in Criminal Session Case No. 0335 of 2025 and a separate human rights application.<\/p>\n\n\n\n
One of the central battles in the case concerned Karua, who was blocked from entering Uganda at Entebbe International Airport on June 22, 2026 and returned to Nairobi.<\/p>\n\n\n\n
Besigye and Lutale argued that Karua had been unlawfully denied entry and that her removal from Uganda was deliberately designed to deprive them of their counsel of choice.<\/p>\n\n\n\n
They wanted the High Court to nullify the immigration decision declaring Karua a prohibited immigrant and \u201cpersona non grata\u201d, permanently restrain authorities from blocking her return to Uganda and compel the Government to facilitate her legal representation of the two accused persons.<\/p>\n\n\n\n
But Justice Kinobe drew a sharp distinction between human-rights enforcement proceedings and judicial review.<\/p>\n\n\n\n
The judge held that while the High Court has jurisdiction to determine whether constitutional rights have been violated or threatened, the legality of an administrative immigration decision must be directly challenged through judicial review.<\/p>\n\n\n\n
In other words, the court refused to use the human-rights application as a shortcut to determine whether immigration authorities acted illegally in excluding Karua.<\/p>\n\n\n\n
The judge said the proper legal route would have been judicial review, where the court could examine whether immigration officials acted illegally, irrationally or with procedural impropriety.<\/p>\n\n\n\n
The ruling therefore did not declare Karua’s deportation lawful. Instead, it declined to determine the legality of that decision because the case had been brought through the wrong procedural avenue.<\/p>\n\n\n\n
That distinction is crucial.<\/p>\n\n\n\n
The applicants had presented a much broader picture.<\/p>\n\n\n\n
They alleged that Karua’s deportation was part of a sustained campaign to obstruct their defence, particularly following the arrest and detention of their other lawyer, Erias Lukwago.<\/p>\n\n\n\n
They also pointed to statements attributed to Gen. Muhoozi Kainerugaba on X, including a statement in which he claimed: \u201cI deported her myself. She’s no longer allowed in our country.\u201d<\/p>\n\n\n\n
Other statements attributed to Muhoozi included a declaration that Besigye would not escape his \u201cjust sentence\u201d and the chilling statement: \u201cwe will hang him very soon.\u201d<\/p>\n\n\n\n
The applicants argued that such statements demonstrated political interference with the judicial process and were evidence of an effort to intimidate or dismantle their legal team.<\/p>\n\n\n\n
They wanted the court to declare that the alleged targeting of their lawyers violated their right to a fair hearing, the independence of the legal profession and their right to counsel of their choice. <\/p>\n\n\n\n
They also sought orders stopping the prosecution of Lukwago over allegations of misprision of treason arising from his representation of Besigye.<\/p>\n\n\n\n
But those allegations did not carry the day.<\/p>\n\n\n\n
Justice Kinobe specifically addressed the social-media statements attributed to Muhoozi.<\/p>\n\n\n\n
The judge found that the applicants had not established a sufficient evidential connection between the statements and the immigration decision affecting Karua.<\/p>\n\n\n\n
Crucially, the court said there was no cogent evidence establishing that Muhoozi exercised legal authority over the immigration officers responsible for the decision or that the immigration decision was made at his direction.<\/p>\n\n\n\n
Simply producing the social-media posts was not enough to prove the constitutional violation alleged by the applicants.<\/p>\n\n\n\n
That finding effectively undercut one of the most explosive elements of the application: the claim that Muhoozi’s public statements demonstrated that the deportation of Karua was part of a deliberate state campaign against Besigye’s defence.<\/p>\n\n\n\n
The judge did not accept that the evidentiary threshold had been met.<\/p>\n\n\n\n
A major factor in the court’s decision was the sheer size of Besigye and Lutale’s remaining legal team.<\/p>\n\n\n\n
The Attorney General’s side told court that the accused were being represented by 13 law firms and more than 50 advocates of their choice.<\/p>\n\n\n\n
The judge accepted the evidence that the accused had continued to have extensive legal representation even after the absence of Karua and Lukwago.<\/p>\n\n\n\n
The trial court had also adjourned proceedings to allow the defence time to reorganise its legal team and had directed that the accused be given a list of State Brief advocates if they wished to invoke that option.
For Justice Kinobe, these facts were difficult to reconcile with the claim that the State had effectively stripped Besigye and Lutale of their right to legal representation.<\/p>\n\n\n\n
The judgment states that the record showed the applicants had engaged more than 13 law firms of their choice, with instructions to fully represent them.<\/p>\n\n\n\n
The court also rejected the argument that Karua’s physical absence from Uganda automatically meant Besigye and Lutale could no longer receive effective representation from her.<\/p>\n\n\n\n
Justice Kinobe pointed to Uganda’s virtual justice framework, noting that the Judicature (Electronic Filing, Service and Virtual Proceedings) Rules and the Visual-Audio Link Rules permit lawyers and other participants to take part in proceedings remotely.<\/p>\n\n\n\n
The judge stressed that physical presence in Uganda is not indispensable in every circumstance.<\/p>\n\n\n\n
Karua could, according to the ruling, advise the accused, prepare pleadings, develop legal strategy and consult with lawyers on the ground through lawful means.<\/p>\n\n\n\n
But the judge also issued an important qualification: virtual proceedings do not abolish the constitutional right to counsel of choice. Rather, they provide another mechanism through which meaningful representation can be facilitated.<\/p>\n\n\n\n
The court separately considered the absence of Erias Lukwago, who was in detention.<\/p>\n\n\n\n
Besigye and Lutale had argued that Lukwago’s detention formed part of the alleged campaign to dismantle their defence.<\/p>\n\n\n\n
Justice Kinobe, however, said the mere fact that a lawyer is detained does not automatically establish that his clients’ constitutional right to a fair hearing has been violated.<\/p>\n\n\n\n
The critical question was whether Lukwago’s absence, considered together with all the other circumstances, had substantially impaired the applicants’ ability to obtain effective legal representation.<\/p>\n\n\n\n
The judge further observed that lawyers do not enjoy immunity from the ordinary operation of criminal law merely because they are representing an accused person.<\/p>\n\n\n\n
The ruling nevertheless contains an important warning about the constitutional right to counsel.<\/p>\n\n\n\n
Justice Kinobe affirmed that Article 28 of the Constitution guarantees an accused person a fair hearing and the right to appear through a lawyer of their choice.<\/p>\n\n\n\n
The right to a fair hearing is also expressly protected as a non-derogable right under Article 44(c).<\/p>\n\n\n\n
But the judge held that the right to choose one’s lawyer must be exercised within the bounds of law and reasonableness.<\/p>\n\n\n\n
Counsel must be reasonably available to attend court so that the administration of justice is not unnecessarily stalled.<\/p>\n\n\n\n
The court therefore drew a line between the right to choose counsel and an alleged right to insist that proceedings cannot continue whenever a particular lawyer is unavailable.<\/p>\n\n\n\n
In the final analysis, the judge said the burden was on Besigye and Lutale to prove, on a balance of probabilities, that the respondents had deliberately interfered with or substantially impaired their constitutional right to legal representation.<\/p>\n\n\n\n
They failed.<\/p>\n\n\n\n
\u201cThe evidence instead demonstrates,\u201d the court found, that the applicants retained extensive legal representation, were given adequate time to reorganise their defence and continued to access legal services through lawyers remaining on record and the Judiciary’s virtual justice mechanisms.<\/p>\n\n\n\n
The court consequently made three decisive findings.<\/p>\n\n\n\n
First, Besigye and Lutale were not deprived of their constitutional right to counsel and the circumstances did not render their criminal proceedings unfair.<\/p>\n\n\n\n
Second, they had been accorded their right to counsel of choice, although that right must be exercised by appointing lawyers reasonably available to attend court.<\/p>\n\n\n\n
Third, the involvement of more than 13 law firms demonstrated that their constitutional entitlement to legal representation had been respected and safeguarded.<\/p>\n\n\n\n
The court ultimately dismissed the application.<\/p>\n\n\n\n
But Justice Kinobe stopped short of ordering Besigye and Lutale to pay the respondents’ legal costs.<\/p>\n\n\n\n
He said the matter raised fundamental constitutional questions that should not be burdened with pecuniary sanctions.<\/p>\n\n\n\n
The ruling was accordingly entered \u201cwith no order as to costs.\u201d<\/p>\n\n\n\n
The judgment leaves one major legal question open: whether the decision to block and deport Martha Karua was itself lawful.<\/p>\n\n\n\n
Justice Kinobe expressly declined to decide that question.<\/p>\n\n\n\n
That battle, according to the ruling, remains open to the applicants through the proper judicial-review procedure.<\/p>\n\n\n\n
For Besigye, therefore, the ruling is both a defeat and an unfinished legal fight. His attempt to have the High Court declare that the alleged targeting of his lawyers had rendered his trial constitutionally unfair has failed.<\/p>\n\n\n\n
But the court has not endorsed the legality of Karua’s deportation.<\/p>\n\n\n\n
It has simply said that if Besigye and Lutale want that immigration decision quashed, they must fight that battle in a judicial-review proceeding \u2014 not through the human-rights enforcement application they brought before Justice Kinobe.<\/p>\n","protected":false},"excerpt":{"rendered":"
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