What began as a tense legal proceeding at the High Court yesterday quickly turned chaotic when Justice Emmanuel Baguma delivered a ruling declining to refer Opposition leader Dr Kizza Besigye and his co-accused’s application to the Constitutional Court.
The courtroom descended into disorder shortly after the decision, as emotions spilled over among relatives of the accused. Moments after Justice Baguma concluded that Dr Besigye and his co-accused, Mr Obeid Lutale and Capt Denis Oola, had failed to raise a substantial constitutional question, a woman identified as Mariam Obeid Lutale, Mr Lutale’s daughter sprang from her seat and rushed to the bar.
Wearing a blue hijab over a grey suit and a white blouse, Mariam grabbed microphones, belonging to various media houses, within her reach.
Shouting over the murmurs in court, she cried out that her family was tired of what was happening in the case. ‘We are tired of this! This is too much!’ she exclaimed, moving toward the judge’s bench in tears.
Within a spitting distance were counter terrorism police officers deployed at the court who jumped over the furniture to reach her. The security officers moved swiftly to restrain her, but she resisted, pulling at the microphones of journalists and shouting at the officers.
‘I will beat you!’ she warned, pointing a microphone toward a police officer before several officers overpowered her and dragged her out of the courtroom. The commotion halted proceedings for about 10 minutes. Journalists, lawyers, and family members stood in stunned silence as order was restored. Dr Besigye and Mr Lutale stood in the dock all this while, observing the proceedings in silence.
When the court reconvened, defence lawyer Martha Karua rose to address the bench. ‘My Lord, from your ruling we need to get instructions from our client,’ she began calmly. Ms Karua added: ‘The lady, who has just been carried out is a daughter of Hajji Obeid Lutale. She must have been carried away by emotions. We pray that you use your discretion to order her release. When she gets released, I promise we will sit with her and calm her down not to repeat what she has done.’
Assistant Director of Public Prosecutions Thomas Jatiko then stood to address the court and said:’In view of your guidance that this matter be fixed for scheduling, the State associates itself with the court’s direction.’
Defence lawyer Fredrick Mpanga, who appeared with Ms Karua and other counsel, requested that the legal team be allowed some time to speak privately with their clients before they were returned to confinement. ‘The last time we were allowed to speak to them briefly,’ he said. ‘In light of our schedules, we request for three weeks to organise our affairs and come back. Before we go, we also request for space to talk to our clients, we all cannot go to prison. We regret the incident that has happened.’
Mr Mpanga expressed concern about what he called ‘harsh conditions’ for the defence team’s access to court. ‘In the more rigid environment of the military, we were allowed in court. We do not hope to see civil courts acting the other way,’ he said, adding that the defence would advise the public about court decorum to avoid further disruption. Taking the floor, Capt Oola, one of the accused, spoke softly, saying: ‘It has taken me two years in prison, and I have not seen or talked to my mother and family. I am happy that my mother is in court today.’ He asked the judge to allow him a brief moment to speak to his mother before being taken back into custody.
The prosecution did not object to the defence’s request for more time. ‘We associate ourselves with the defence counsel for purposes of this adjournment,’ said Mr Jatiko. ‘We pray that court grants us four weeks. We have some high-profile matters coming up next week, including the Kagezi murder case and the Jamilu Mukulu case.’ Justice Baguma agreed to the joint request, fixing the plea-taking and scheduling for December 4. ‘This court will be available even today for a meeting with the parties and security officials to discuss issues of access and entry into court,’ the judge said before adjourning the case.
Earlier, Justice Baguma had ruled that Dr Besigye’s bid to refer the matter to the Constitutional Court did not meet the threshold under Article 137(5)(b) of the Constitution. He held that no substantial question of constitutional interpretation had been established, emphasising that ‘Article 28 of the Constitution lays down the principles of the right to a fair hearing, which this court is mandated to observe’.
The accused persons, through their lawyers, had requested the High Court to refer their case to the Constitutional Court, arguing that continuing with proceedings before Justice Baguma against whom they have a pending complaint before the Judicial Service Commission (JSC) violates their constitutional right to a fair and impartial hearing.
Their lawyers had framed the proposed constitutional question as: ‘Whether a court presided over by a judicial officer against whom a complaint by the accused persons seeking removal from office is pending is an independent and impartial court in accordance with Article 28(1) and Article 44(c) of the Constitution.’
However, Justice Baguma ruled that the matter did not meet the threshold for constitutional interpretation.
‘Article 137(5)(a) and (b) require that before a reference is made, the court must be satisfied that a prima facie case exists that interpretation of a constitutional provision is required, If this is not established, then no reference should be made,’ he stated.
Quoting previous authorities, including Sheikh Abdul Karim Sentamu and Another vs Uganda (1998) and Hon Sam Kuteesa vs Attorney General (2011), the judge emphasised that the court must first determine whether a real question of interpretation arises in the proceedings.
‘However much a party may request, he cannot have referred a matter that does not involve interpretation of the Constitution. Nor can a party give the court jurisdiction which the court does not have by law,’ Justice Baguma said.
He added:’The allegations that the accused persons will not get a fair trial are an imagination because Article 28 of the Constitution lays down the principles of the right to a fair hearing, which this court is mandated to observe.’
With that ruling, the treason case now moves toward trial preparations. Dr Besigye and Mr Lutale were returned to Luzira prison after the court session.