The question of whether Dr Kizza Besigye’s treason trial can proceed while he remains hospitalised is likely to put Uganda’s constitutional guarantees of a fair trial to a significant test when the case returns to the High Court on Tuesday, August 18, 2026.
Dr Besigye collapsed in the court dock on July 29 after protesting for nearly 30 minutes against the commencement of the treason trial without his preferred defense lawyers.
He was subsequently rushed to Mulago National Referral Hospital, where he has remained in intensive care.
Since the collapse, the trial has been adjourned three times at the request of his state-appointed lawyer, Ms Sylvia Namawejje, who has argued that a criminal trial cannot ordinarily proceed without the physical presence of the accused.
The presiding judge, Justice Emmanuel Baguma, is expected to receive a medical report from Uganda Prisons Service indicating whether Dr Besigye is medically fit to attend and participate in the proceedings.
At the heart of the dispute is Article 28 of the 1995 Constitution, which guarantees an accused person the right to a fair and public hearing within a reasonable time.
Legal experts say the provision does not merely require the State to bring an accused person before court; it also safeguards the accused’s ability to understand the proceedings, follow the evidence and participate meaningfully in his defence.
Advocate Eron Kiiza says Dr Besigye’s absence on account of illness cannot be treated in the same way as an accused person deliberately refusing to attend court.
‘A trial is not a formality performed on an accused – it is something he must be present for,’ Mr Kiiza said, arguing that the right to be present allows an accused to hear the evidence, face witnesses and instruct his lawyers.
Article 28(5), however, provides limited circumstances in which criminal proceedings may continue without an accused person being physically present. These include situations where an accused consents to being tried in their absence or voluntarily absconds after being duly summoned.
The Constitution also allows the court to remove an accused person from proceedings where their conduct makes it impossible for the trial to continue.
That provision could become particularly significant in Dr Besigye’s case because his July 29 protest was disruptive. However, his lawyers and human rights advocates maintain that the disruption cannot be separated from the circumstances surrounding it – particularly his objection to proceeding without lawyers of his choice.
Mr Kiiza argues that Dr Besigye has neither consented to the trial proceeding in his absence nor voluntarily absconded from court.
‘He has not consented. He has disrupted nothing. He is simply unwell – and illness is not misconduct,’ Mr Kiiza said.
Human rights defender Dr Livingstone Sewanyana similarly argues that the physical presence of an accused person is one of the fundamental safeguards of a criminal trial.
He says proceeding without Dr Besigye could render the trial vulnerable to challenge because the accused would be unable to follow proceedings or give instructions to his lawyers.
‘The principle is clear: the accused must be tried in his/her presence and with a lawyer procured by him/her or by the state with his/her consent. So in their absence, it’s a trial in futility as it will be lacking the constitutional safeguards, and it will be an abuse of court process,’ he warned
Adding, ‘The Trial judge should be mindful of the tenets of a fair trial and should they be trampled on, they are subject to appeal.’
The Uganda Law Society has also cautioned against what it described as sacrificing fundamental safeguards in the name of speedy justice.
In a statement issued on July 30, the lawyers’ body cited Article 28(1), warning that haste should not be confused with speedier justice where medical fitness, legal representation and other fair-trial guarantees are at stake.
The stakes are even higher because Dr Besigye faces a capital offence.
ULS president Isaac Ssemakadde has warned that proceeding to conviction and sentencing without Dr Besigye being present and medically fit could result in an appeal.
He cited Article 28(3)(d) of the Constitution and Article 14(3)(d) of the International Covenant on Civil and Political Rights, which Uganda ratified in 1995.
‘For a capital offence like treason, the trial cannot meaningfully ‘go on’ to conviction and sentencing without Dr Besigye being present and in full medical fitness to hear witnesses and give instructions to counsel of his choice,’ Mr Ssemakadde said.
Where the dispute gets complicated
The prosecution’s position and the court’s previous conduct suggest that the case is not simply about whether Dr Besigye is physically in the courtroom.
The July 29 proceedings showed the difficult balance the judge must strike between the accused’s constitutional rights and the State’s interest in having a criminal case determined without unnecessary delay.
Justice Baguma had directed the prosecution to call its first witness after rejecting defence objections over the absence of Dr Besigye’s preferred lawyers.
The prosecution then called Mr Andrew Wilson, alias Orlando, an American national, as its first witness.
Before the witness could meaningfully testify, however, Dr Besigye began protesting from the dock, repeatedly banging his fists on the wooden surface and demanding that the proceedings stop.
Prison officers eventually restrained and handcuffed him. He continued protesting before his voice faded and he collapsed.
The incident transformed the courtroom from a setting for the commencement of testimony into an emergency scene, forcing an abrupt halt to the proceedings.
Dr Besigye’s preferred lawyers include former Kenyan Justice Minister Martha Karua, who has been barred from accessing Uganda, and Kampala Lord Mayor Erias Lukwago, who is himself in Luzira Prison facing a related charge of misprision of treason.
The prosecution alleges that Dr Besigye, Hajji Obeid Lutale and Capt Denis Oola participated in meetings in Uganda and abroad between 2023 and 2024 as part of a plot to overthrow the government. The accused deny the allegations.
What happens next?
The medical report expected could provide the immediate answer.
If Dr Besigye is found medically unfit, the court is likely to face pressure to adjourn until he is sufficiently recovered to participate in the proceedings.
If he is declared fit, the court could direct that the trial resumes immediately, potentially reopening the question of how his objections over legal representation should be handled.
The more difficult constitutional question would arise if the court attempted to proceed substantially with the trial while Dr Besigye remains medically incapable of participating.
That could turn the case into a broader legal battle over the limits of judicial discretion, the meaning of personal participation in a criminal trial and the extent to which the right to a fair hearing can be protected while courts seek to prevent delays.
For the prosecution, the case is about bringing serious allegations of treason to a conclusion. For the defence and human rights advocates, it is about ensuring that the State does not secure a conviction at the expense of constitutional safeguards.
The Tuesday`s court decision may therefore determine more than the next hearing date. It could establish an important precedent on how Uganda’s courts should handle criminal trials when an accused person becomes medically incapable of participating in proceedings.
At the weekend, the Minister of Health, Dr Chris Baryomunsi, checked on Dr Besigye and said that he was steadily recovering.
“I paid a visit to Dr Besigye this morning at Mulago Hospital, where he is hospitalized. He is steadily recuperating, and I wish him a quick recovery. I thank the team of medical workers that are attending to him.’Dr Baryomunsi posted on his X handle.