As opposition leader Kizza Besigye marks a year in detention over treason charges, focus has shifted sharply to High Court judge Emmanuel Baguma, whose repeated refusals to recuse himself have become a central feature of the long-running legal standoff. Over the past months, the courtroom has seen a series of confrontations, applications and letters, all centred on whether Justice Baguma can continue presiding over a case in which the accused have filed a pending complaint against him before the Judicial Service Commission (JSC).
On October 15, the judge declined, for the second time, to step down from the treason trial, insisting there was no valid reason to justify his withdrawal. ‘I have scrutinised the entire lower court record. In my view, the Criminal Division is a division of the High Court and, therefore, has jurisdiction to handle this case,’ he ruled, rejecting the defence argument that the file belonged to the International Crimes Division.
He dismissed the allegations of bias as unfounded.
‘The denial of bail at one stage does not mean that the judge is biased or will never grant bail in the future,’ he said. He added: ‘It is not proper for parties to use decisions that are not in their favour to allege bias against a judge.’ Defence lawyers-led at various stages by Ernest Kalibbala, Fredrick Mpanga, Martha Karua and Erias Lukwago-argued that Justice Baguma should not preside over the case while a complaint seeking his removal from office is pending. But the judge was unmoved, ruling thus at one point: ‘The filing of a complaint seeking the removal of a judge from office is not a bar to him continuing to hear a case.’
Shortly after that decision, the defence asked the court to refer the matter to the Constitutional Court, arguing that the question of judicial impartiality raised fundamental issues under Article 28. Mr Kalibbala submitted thus: ‘The specific problem is whether a judge who is a respondent in a complaint before the JSC can try to sit in a matter to determine the innocence of the persons complaining against him.’ Chief State Attorney Richard Birivumbuka opposed the request, saying no constitutional issue requiring interpretation had been established. ‘The premise of the application is the alleged complaint to the JSC. There is no copy of that complaint. and even then, it is the duty of the JSC to serve it to the judicial officer,’ he argued.
On November 6, Justice Baguma ruled on this application, again declining to halt the proceedings. ‘In the final result, it is this court’s finding that counsel for the accused persons have not made out a prima facie question of law to warrant reference to the Constitutional Court,’ he said. ‘I accordingly decline to refer the proposed question of law to the Constitutional Court and direct that the matter be fixed for scheduling and plea taking.’ He added that allegations of bias were speculative, noting thus: ‘The allegations that the accused persons will not get a fair trial are an imagination because Article 28. lays down the principles of the right to a fair hearing, which this court is mandated to observe.’
The defence asked for time to consult with their clients, and the matter was adjourned to December 4.
Away from the formal applications, tension between the judge and the accused escalated on October 4, when Dr Besigye wrote a three-page letter demanding to know the law preventing him from speaking directly in court while represented by counsel. ‘Being a person accused of a serious offence, I find it strange and oppressive if I cannot raise a concern directly in open court,’ he wrote, adding: ‘If each time a written submission. has to be made and time fixed for your response, the case may never be concluded.’
Dr Besigye asked the judge ‘to point me to the provisions of the law that bar an accused person from orally raising concerns in court.’ This followed a heated exchange on October 1 in which the judge insisted that only lawyers could address the court unless they formally withdrew. He later allowed Dr Besigye to speak, but only through written submissions. Tension over recusal had been evident earlier on September 9 when Dr Besigye and Mr Lutale refused to appear for their second bail application.
Their lawyer, Mr Lukwago, told court that his clients would not appear before a biased judge, citing earlier remarks by Justice Baguma and arguing the case file was wrongly before him. The judge, however, ruled that the recusal matter had already been determined on August 19 and scheduled further proceedings. Throughout, the judge has maintained that he remains the proper judicial officer to preside over the case, while the accused insists he should withdraw until the JSC complaint is resolved.
Reply
Throughout, the judge has maintained that he remains the proper judicial officer to preside over the case, while the accused insists he should withdraw until the JSC complaint is resolved.