The High Court is today expected to determine whether veteran Opposition politician Col (rtd) Dr Kizza Besigye and his aide, Mr Obeid Lutale, will be released on bail or remain in prison, after Justice Emmanuel Baguma reserved his ruling on their applications seeking a stay of criminal proceedings and temporary release.
Justice Baguma reserved his ruling on their applications seeking a stay of criminal proceedings and temporary release.
The ruling, expected today, will determine whether Dr Besigye walks out of prison, after about a year in custody or continues to face the treason charges from behind Luzira Prison bars.
This is the fourth bail attempt by Dr Besigye to regain his temporary freedom following his abduction in Kenya’s capital, Nairobi, in November 2024.
Last week, Justice Baguma said his decision would be communicated to the parties physically, meaning Dr Besigye and his co-accused would be produced in court to receive their bail ruling.
At the hearing, defence lawyer Mr Ernest Kalibbala informed court that the applicants had withdrawn an earlier bail application. He said the withdrawal, communicated through a letter dated December 19, had been uploaded onto the case file.
Assistant Director of Public Prosecutions Thomas Jatiko said the State had no objection, prompting the judge to formally mark the application as withdrawn.
Mr Kalibbala then argued the substantive application, seeking two key orders: a stay of criminal proceedings pending the determination of a constitutional petition and the release of the applicants on bail as a consequence of the stay.
He told court that the application was supported by five affidavits and was anchored in the High Court’s inherent powers to grant remedies necessary to ensure justice and a fair trial.
‘This court has the inherent powers to grant the orders it deems just,’ Mr Kalibbala submitted, arguing that the pending constitutional petition raises fundamental questions about the applicants’ right to a fair hearing and is of both personal and public importance.
According to the defence, the petition challenges the Judicial Officers (Recusal) Directions and raises broader constitutional questions, including the computation of time for mandatory bail. Mr Kalibbala relied on the Supreme Court decision in Charles Onyango Obbo and Andrew Mujuni Mwenda v Attorney General (Constitutional Appeal No. 2 of 2002), contending that constitutional matters should take precedence over proceedings in lower courts.
‘When a stay is granted, it is not a final determination. It is to allow bona fide constitutional issues to be resolved so that a fair trial can be guaranteed,’ he said.
On bail, the defence argued that release pending trial is grounded in the presumption of innocence and the right to liberty. Mr Kalibbala told court that both applicants have fixed places of abode and no prior convictions, and cited Dr Besigye’s history of complying with bail conditions when previously charged with similar offences.
He added that given the gravity of the constitutional issues raised, the case was likely to take time to conclude, noting that investigations were completed when the accused were committed to the High Court on May 29, 2025.
The State opposed the application, with Chief State Attorney Richard Birivumbuka arguing that the High Court lacked jurisdiction to stay proceedings on the basis of a constitutional petition pending before a higher court.
‘The applicants expect you to read the petition and assume the contents are true, which is not correct,’ Mr Birivumbuka submitted, warning that granting a stay would amount to anticipating the Constitutional Court’s decision.