Lawyers decry Uganda's judiciary for treating Constitution as a 'museum piece'

Legal practitioners in Uganda are raising alarm bells, suggesting the nation’s judiciary is failing to uphold its constitutional mandate to protect personal liberty. The recent denial of bail to former Kampala Lord Mayor Erias Lukwago, alongside the ongoing remand of opposition leader Dr. Kizza Besigye despite multiple bail applications, has intensified scrutiny on judicial decisions.

Abubaker Ssekanjako, a lawyer involved in cases concerning Dr. Besigye, argues that a pattern has emerged where courts are increasingly leaning towards detention, even when the Constitution allows for discretion. This shift, he contends, undermines the fundamental principle that an accused person is presumed innocent until proven guilty. The gravity of an accusation, Ssekanjako observed, is becoming a de facto substitute for proven guilt, overshadowing crucial constitutional safeguards.

During a public discussion hosted by the Uganda Law Society, Ssekanjako highlighted instances where medical concerns and constitutional rights were seemingly disregarded in favour of pre-trial detention. He pointed to the case of Erias Lukwago, whose remanded status, despite cited health issues, exemplified a trend of subordinating liberty and health to incarceration. Ssekanjako stressed that Article 23 of the Constitution guarantees specific rights to detainees, including access to medical treatment and legal counsel, which courts are expected to actively enforce.

He contrasted the approach taken in Lukwago’s case with a past ruling by former principal judge James Ogoola, which strongly affirmed the principle that courts must justify continued custody rather than expect the accused to prove their entitlement to freedom. Ssekanjako lamented that this robust defense of liberty has gradually eroded, with judicial officers now appearing hesitant to assert constitutional authority.

Further illustrating these concerns, Ssekanjako cited the prolonged detention of Dr. Besigye after a Supreme Court ruling declared the trial of civilians by the General Court Martial unconstitutional. The legal team faced challenges when Besigye remained in prison while the case had not yet been transferred to civilian courts, raising questions about the lawful basis for his continued detention and the effectiveness of the habeas corpus writ.

Ssekanjako also criticized the courts’ handling of delays in urgent bail applications and the perceived reluctance to enforce habeas corpus when security agencies deny holding detainees. He argued that technology, such as the Electronic Court Case Management Information System (eCCMIS), should facilitate, not impede, access to justice and liberty. “The Constitution was not written to become a museum piece. Its provisions must continue to grow and respond to the demands of every generation,” Ssekanjako concluded, emphasizing the need for judicial interpretation to evolve alongside societal understanding of human dignity and rights.

Source: The Observer (Uganda)