The High Court in Kampala has ruled that jailed opposition leader Dr Kizza Besigye could have engaged his preferred lawyer, Kenyan Senior Counsel Martha Karua, remotely through Zoom despite her being barred from entering Uganda.
Justice Simon Peter Kinobe said the Judiciary’s rules on electronic filing and virtual proceedings provide for remote participation in court proceedings by judicial officers, parties and witnesses.
The judge said Dr Besigye’s lawyers could have applied for appropriate directions from the trial court to enable Ms Karua to participate virtually in his treason trial.
‘The court may, on its own motion, or on application by a party, allow proceedings to be conducted virtually. These provisions demonstrate that physical presence within Uganda is not, in every circumstance, indispensable to participation in judicial proceedings,’ Justice Kinobe ruled on Tuesday.
He added: ‘In the circumstances of the present case, the Applicants could have sought appropriate directions from the trial Court regarding remote participation by Hon. Martha Karua, SC, if they considered such participation necessary for the effective preparation and conduct of their defence.’
The ruling comes amid a prolonged dispute over Dr Besigye’s choice of legal representation, which has contributed to delays in the commencement of his treason trial.
On June 22, Ms Karua, who is also a Kenyan politician, was denied entry into Uganda at Entebbe International Airport and declared persona non grata by the Ugandan government.
She had travelled to Kampala to join the defence team representing Dr Besigye and Kampala Lord Mayor Erias Lukwago, who were facing charges arising from an alleged plot to overthrow the government.
Following Ms Karua’s exclusion from Uganda, Dr Besigye’s trial faced delays as he insisted on being represented by lawyers of his choice, including Ms Karua and Mr Lukwago.
The court has since attempted to provide state-appointed lawyers to represent him, but Dr Besigye has rejected them, insisting on his preferred counsel.
The dispute escalated on July 29 when Dr Besigye collapsed in the court dock after protesting for nearly 30 minutes against the state-appointed lawyers.
He was subsequently rushed to Mulago National Referral Hospital for medical attention.
Mr Lukwago is currently on remand at Luzira Prison on related charges of misprision of treason.
Right to counsel
In his ruling, Justice Kinobe said there was no evidence that Dr Besigye had been prevented from obtaining legal advice from Ms Karua through lawful means, including remote communication.
‘The evidence further does not establish that Hon. Martha Karua, SC, was thereby precluded from advising the Applicants, preparing pleadings, settling legal strategy, consulting with advocates on record or otherwise participating in the Applicants’ defence through lawful means,’ the judge said.
However, the judge cautioned that the availability of virtual proceedings should not be interpreted as removing an accused person’s constitutional right to counsel of choice.
‘The Court must, however, emphasise that the availability of virtual proceedings does not, of itself, extinguish the constitutional right to counsel of choice; rather, it is one of the mechanisms through which meaningful legal representation may, where appropriate, be facilitated,’ Justice Kinobe ruled.
The judge was interpreting Rule 32 of the Judicature (Electronic Filing, Service and Virtual Proceedings) Rules, 2025, which provides for the phased implementation of video conferencing and virtual court platforms.
The rules allow courts, either on their own motion or upon application by a party, to permit proceedings to be conducted virtually.
The four-time presidential candidate and Hajj Lutale had asked Justice Kinobe to declare that they are entitled to be defended by advocates of their own choice, including their lead counsel, Karua.
They had also asked to declare that the blocking, detention and expulsion of their lawyer Karua at Entebbe, and her classification as a prohibited immigrant and as a persona non grata – the sole ground stated being “persona non grata,” which is not a ground recognised by the Uganda Citizenship and Immigration Control Act, Act No. 3 of 1999, was unconstitutional.
They reasoned that the said acts were taken without lawful authority, without any hearing, in bad faith and for an improper and collateral purpose, and were contrary to the constitution.
Dr Besigye’s treason case is scheduled to resume next Tuesday before Justice Emmanuel Baguma.
The prison authorities are expected to furnish the court with a medical report on Dr Besigye’s condition and whether he is medically fit to stand trial.
Prosecution alleges that Dr Besigye, Hajj Obeid Lutale, and Captain Denis Oola participated in meetings held in Uganda and abroad between 2023 and 2024 as part of a plan to overthrow the government.
The three accused persons deny the allegations.