KAMPALA. The High Court in Kampala has declined to refer veteran opposition politician, Dr Kizza Besigye’s application to the Constitutional Court.
Dr Besigye had sought interpretation on whether a judge facing a complaint before the Judicial Service Commission (JSC) can fairly preside over a case involving the same complainants.
Justice Emmanuel Baguma in his Thursday ruling held that the application filed by the four-time presidential contender and his co-accused, Hajj Obeid Lutale and Capt. Denis Oola, did not raise a substantial question of constitutional interpretation under Article 137(5)(b) of the Constitution.
“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,” Justice Baguma ruled.
Adding…“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.”
The accused persons, through their lawyers, had requested the High Court to refer their case to the Constitutional Court, arguing that proceedings before Justice Baguma, against whom they have a pending complaint before the JSC violate 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 application 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 & Another v Uganda (1998) and Hon. Sam Kuteesa v 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 the 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 that the allegations of bias arising from the pending complaint were speculative and did not justify halting proceedings.
“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,” the judge noted.
Justice Baguma concluded that none of the authorities cited by Dr Besigye’s lawyers, including Professor Isaac Newton Ojok v Uganda and Tumaini v Republic (1972), related to constitutional references.
Earlier this week, Dr Besigye’s legal team, led by lawyers Martha Karua, Elias Lukwago, Ernest Kalibbala, and Fredrick Mpanga, requested Justice Baguma to step aside from the treason trial, citing a conflict of interest due to their complaint before the JSC.
Justice Baguma declined to recuse himself, ruling that the filing of a complaint seeking the removal of a judge from office is not a bar from continuing to hear a case.
Following that decision, Besigye’s lawyers invoked Article 137(5)(b), requesting that the issue be referred to the Constitutional Court for interpretation.
However, after the ruling, Besigye’s lawyers asked the court for some time to discuss with their clients the way forward. The judge consequently adjourned the proceedings to December 4.
During court proceedings, there was commotion as Hajj Lutale’s daughter protested Justice Baguma’s decision.
She was, however, detained by the court’s security team that led her to their holding cells in the premises.