The High Court in Kampala has declined to refer an application by veteran opposition politician and four time presidential candidate Kizza Besigye and his co-accused Hajj Obeid Lutale to the Constitutional Court, ruling that the matter does not raise a substantial question of constitutional interpretation.
In a ruling delivered on Thursday, Justice Emmanuel Baguma held that the application filed by Besigye, together with Lutale and Capt. Denis Oola, did not meet the threshold required under Article 137(5)(b) of the Constitution for referral to the Constitutional Court.
"In the final result, it is this court's finding that counsels for the accused persons have not made out a prima facie question of law to warrant reference to the Constitutional Court. 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," said Baguma.
The accused, who are facing treason charges, had through their legal team sought to have the High Court refer their case to the Constitutional Court. Their lawyers argued that Justice Baguma, against whom they have filed a formal complaint before the Judicial Service Commission (JSC), could not preside over their trial impartially.
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They framed their 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, Baguma ruled that the matter did not involve a genuine constitutional interpretation but rather an allegation of bias, which could be addressed through ordinary judicial processes rather than a constitutional reference.
Citing precedents including Sheikh Abdul Karim Sentamu & Another v Uganda (1998) and Hon. Sam Kuteesa v Attorney General (2011), the judge noted that a reference to the Constitutional Court can only be made where a real question of constitutional interpretation arises.
"However much a party may request, he cannot have referred a matter that does not involve the interpretation of the Constitution. Nor can a party give the court jurisdiction which the court does not have by law," Baguma said.
Baguma further described the allegations of bias as speculative, stating that the existence of a complaint before the JSC does not automatically disqualify a judge from handling a case.
"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,"he said.
He added that none of the authorities cited by Besigye's lawyers, including Professor Isaac Newton Ojok v Ugandaand Tumaini v Republic (1972), were relevant to the issue of constitutional reference.
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Earlier this week, Besigye's legal team -- led by Martha Karua, Erias Lukwago, Ernest Kalibbala, and Fredrick Mpanga -- had requested Justice Baguma to recuse himself, citing a conflict of interest arising from their complaint before the JSC. The judge declined to step aside, ruling that the mere filing of a complaint does not prevent a judge from continuing to preside over a matter.
Following Thursday's ruling, Besigye's lawyers requested time to consult with their clients regarding the next course of action. The court subsequently adjourned the proceedings to December 4, 2025.
The session briefly descended into commotion when Lutale's daughter, Mariam Obeid Lutale, protested the judge's decision. Court security intervened swiftly, detaining her and escorting her to the holding cells within the court premises
