Dr Kizza Besigye
By Isaac Christopher Lubogo (Suigeneris)
Introduction
From the echoing corridors of Luzira Upper Prison, a handwritten letter from Dr Kizza Besigye has resurrected one of the most delicate questions in Ugandan constitutionalism: Can a judge lawfully silence an accused person who seeks to speak in open court while represented by counsel?
The letter—more than a protest—is a constitutional manifesto. Besigye decried Justice Emmanuel Baguma’s directive that barred him from personally addressing the High Court during his treason trial, calling it “strange and oppressive.” His lament is not mere defiance; it is a reminder that voice is not etiquette—it is essence.
The question is not trivial. It pierces into the heart of Article 28 of the Constitution of the Republic of Uganda (1995) and tests the architecture of participatory justice in the post-colonial courtroom.
1. The Constitutional Core: The Right to Speak in One’s Own Voice
Uganda’s Constitution under Article 28(1) guarantees to every person “a fair, speedy and public hearing before an independent and impartial court.” Clause (3)(d) expands that promise, providing that an accused must be permitted “to appear before the court in person or, at that person’s own expense, by a lawyer of his or her choice.”
The conjunction “or” is decisive—it signifies choice, not exclusion. The framers envisaged co-existence of voice and representation, not the substitution of one for the other. A judge’s discretion to manage proceedings cannot mutate into a veto on personality. The constitutional floor is that every accused retains the right of personal audience in matters touching their liberty (Constitution of Uganda, 1995).
Moreover, Article 44(c) enshrines the right to a fair hearing as non-derogable. Any attempt to gag an accused must, therefore, be weighed under Article 43(2)(c), which forbids limitations that are not demonstrably justifiable in a free and democratic society (Musinguzi & Kazoora, 2020).
2. Comparative Jurisprudence and the Grammar of Participation
The International Covenant on Civil and Political Rights (ICCPR), to which Uganda is a State Party, in Article 14(3)(d), echoes the same guarantee: the right “to be tried in one’s presence, and to defend oneself in person or through legal assistance of one’s own choosing” (UN Human Rights Committee, 2007).
The African Charter on Human and Peoples’ Rights (1981), under Article 7(1), reinforces the same ethos. The African Commission’s Principles and Guidelines on the Right to a Fair Trial (2003) interpret this to include meaningful participation—that the accused must be able to present personal concerns, challenge evidence, and communicate directly when justice so requires (ACHPR, 2003).
Comparatively, in the United States, the doctrine of allocution grants defendants an inviolable right to address the court personally before sentencing (Rule 32(i)(4)(A)(ii), Federal Rules of Criminal Procedure). In R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, the House of Lords held that fairness requires the opportunity to make representations before an adverse decision. The principle is universal: he who bears the burden of punishment must be allowed to speak.
3. Ugandan Judicial Practice and the Shadow of Control
While Ugandan judges retain wide discretion to regulate proceedings, the exercise of that discretion is subject to constitutional supremacy under Article 2(2). In Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997), the Supreme Court affirmed that judicial discretion cannot override explicit constitutional rights.
Similarly, in Katureebe v Attorney General (1995) UGCA 7, the Court of Appeal noted that the fairness of a trial depends not only on counsel’s performance but also on the accused’s ability to participate effectively. A directive that sterilizes that participation collapses the delicate balance between order and justice.
4. The Philosophical Crux: Voice as Dignity
To silence a man on trial for his life is to kill him twice—first by incarceration, then by erasure. The Lubogo doctrine of participatory dignity posits that voice in court is not procedural but existential; it affirms personhood within the machinery of law (Lubogo, 2024).
Dr Besigye’s defiance is thus more than personal; it is jurisprudential theatre, dramatizing the tension between state order and individual conscience. In this tension lies the soul of constitutionalism.
5. Human-Rights Implications Beyond Uganda
A judicial practice that forbids an accused from addressing court personally—if normalized—sets a dangerous continental precedent. It risks turning African criminal trials into performances of counsel, excluding the human being whose liberty is at stake.
Globally, such silencing violates Uganda’s obligations under Article 14 of the ICCPR and Article 7 of the African Charter, both binding under Article 287 of the Ugandan Constitution. The UN Human Rights Committee has repeatedly stressed in General Comment 32 that participation is an indispensable component of equality of arms (UNHRC, 2007).
6. Legal Remedies and the Road Ahead
Several remedial avenues are available:
1. Tailored Accommodation within Trial: The court may allow Besigye limited but meaningful intervals to raise personal concerns—ensuring order without suppressing substance.
2. Constitutional Reference (Article 137(5)): The trial court can refer the interpretive question—whether Article 28(3)(d) permits silencing of an accused represented by counsel—to the Constitutional Court for authoritative determination (Mukasa, 2018).
3. Constitutional Petition (Article 137(3)): Besigye could petition directly for a declaration that the directive violates Articles 28, 43, and 44, and seek interim relief staying proceedings.
4. Interlocutory Appeal under Certificate of Importance: A rarely invoked but potent channel to the Court of Appeal on a substantial question of law (Court of Appeal Rules, r. 44).
5. Regional and International Remedies: Should domestic remedies fail, Besigye could lodge communications before the African Commission on Human and Peoples’ Rights and the UN Human Rights Committee under the First Optional Protocol (ACHPR, 2003; UNHRC, 2007).
7. The Lubogo Reflection: The Voice, the Bench, and the Nation
When a nation begins to fear the voice of the accused, it has already begun to doubt its own justice. A fair trial is not measured by the eloquence of lawyers but by the audibility of conscience within the courtroom.
Dr Besigye’s plea from Luzira should not be read as rebellion but as a constitutional sermon—that justice must not only be done but must be heard speaking through those who suffer under its weight.
References
African Commission on Human and Peoples’ Rights (ACHPR) (2003) Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa. Banjul: ACHPR.
African Charter on Human and Peoples’ Rights (1981) Adopted 27 June 1981, entered into force 21 October 1986. OAU Doc. CAB/LEG/67/3 rev. 5.
Attorney General v Tinyefuza (1997) UGSC Const. Appeal No. 1 of 1997 (Supreme Court of Uganda).
Constitution of the Republic of Uganda (1995).
Katureebe v Attorney General (1995) UGCA 7 (Court of Appeal of Uganda).
Lubogo, I.C. (2024) Philosophies of Participation and Dignity in the Ugandan Courtroom. Kampala: SuiGeneris Press.
Musinguzi, P. & Kazoora, J. (2020) ‘Constitutional Limitations and Judicial Discretion in Criminal Procedure’, Makerere Law Journal, Vol. 15 No. 2, pp. 44–61.
Mukasa, G. (2018) ‘The Role of Constitutional References in Uganda’s Criminal Justice System’, East African Law Review, Vol. 4, pp. 89–112.
Rule 32(i)(4)(A)(ii) Federal Rules of Criminal Procedure (United States).
United Nations Human Rights Committee (UNHRC) (2007) General Comment No. 32: Article 14 — Right to Equality before Courts and Tribunals and to a Fair Trial, CCPR/C/GC/32.
R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 (House of Lords).
Epilogue — In the Spirit of Ubuntu
Justice, in its purest form, is not the silence of the accused but the harmony of voices—judge, counsel, and citizen—each bearing the weight of truth. Uganda’s constitutional promise demands not docility but dialogue.
Dr Besigye’s hand-written plea is, therefore, a timeless reminder that the first liberty of man is the liberty to speak—even from behind the walls of Luzira.
