In the jurisprudential theatre of constitutional freedoms, few acts are as dramatic and as profoundly telling as the denial of bail to respected figures accused of grave offences. When Rtd Col Dr Kizza Besigye and his aide Hajj Obeid Lutale Kamulegyeya were denied mandatory bail in the treason and misprision-of-treason case, the judicial restraint exhibited was not merely a function of legal formalism; it became a symbolic and substantive commentary on the tension between liberty, state security, and the resilience of constitutional order.
Article 23(6) of the 1995 Constitution of Uganda enshrines the right of every accused person to apply to a competent court for bail, a recognition derivative of the presumption of innocence in Article 28(3)(a) and the right to liberty in Article 23(1). But critically, Article 23(6)(b) provides that where a person is remanded for sixty days in cases triable by magistrates’ courts or, under Article 23(6)(c), for one hundred and eighty days in offences triable only by the High Court, the court shall release the accused on bail “on such conditions as it thinks fit.” These provisions create a statutory mandate for mandatory bail after lapse of remand thresholds.
The right to bail in Uganda is also captured, for less serious offences, under Section 77 of the Magistrates Courts Act (Cap 16), and for High Court matters under Section 15 of the Trial on Indictments Act, requiring “exceptional circumstances” to justify bail, with due consideration to illness, advanced age, or other conditions to minimise flight risk.
However, for the one hundred and eighty-day remand threshold, the court’s discretion is significantly constrained: once the time threshold is passed, the court must release the accused unless there exists an express legal bar.
The crux of the Besigye and Lutale matter is that they were detained for more than one hundred and eighty days since November 2024, initially before a military court, then transferred to a civilian court.
Their lawyers argued that the period under military custody should count towards the one hundred and eighty-day threshold under Article 23(6)(c), thus mandating bail. Yet Chief Magistrate Nantege ruled on 29 May 2025 that she lacked jurisdiction to grant mandatory bail in capital offences, as that authority resides in the High Court, and she refused to pronounce whether the one hundred and eighty days had indeed elapsed.
In April 2025, the High Court (Justice Rosette Comfort Kania) denied bail despite finding that Besigye and Lutale satisfied all formal legal criteria, including fixed abode, sureties, advanced age, and being first-time offenders, on the grounds that the grave treason charges and ongoing investigations created a real risk of interference.
Most recently, on 8 August 2025, a High Court judge ruled that the one hundred and eighty-day period only began upon remand in the civilian court on 21 February 2025, making them just twelve days short of the threshold and thus technically not yet entitled to mandatory bail, even as their detention approaches nine months.
In Uganda v. Kizza Besigye (High Court, 2005), the High Court underscored that bail is a constitutional right under Article 23(6) of the 1995 Constitution, not a privilege to be granted at the whim of the State.
The court stressed that the purpose of bail is to ensure the accused’s liberty pending trial while securing their attendance in court, and that pretrial detention should never be used as a punitive measure.
Justice Katutsi rejected the argument that the seriousness of the offence alone could justify indefinite pretrial detention, holding that where statutory timelines for mandatory bail are met, the accused must be released regardless of political sensitivities or public pressure.
This decision fortified the principle that time spent in custody, whether lawful or unlawful, must be counted toward the period for mandatory bail under Section 16 of the Trial on Indictments Act.
Similarly, in Foundation for Human Rights Initiative v Attorney General (Const. Appeal No. 3 of 2009), the Supreme Court held that Section 16 of the Trial on Indictments Act was unconstitutional for contravening Articles 23(6), 28, and 20 of the Constitution, thereby reinforcing the supremacy of constitutional bail provisions over statutory limitations.
In Asingwire Alex Mukasa v Attorney General (Const. Pet. No. 44 of 2022) [2025] UGCC 9 (8 August 2025). The Constitutional Court reaffirmed that mandatory release on bail under Article 23(6)(c) must be granted by the High Court, especially in capital offences, limiting Magistrates’ Courts from doing so. It upheld relevant bail practice guidelines under the 2022 Directions.
In Ssewajjiwa Abdul v Uganda (1998), the High Court granted automatic bail after the accused had been held for 480 days before committal, reasoning that even periods of unlawful detention must count towards the remand threshold, lest the State benefit from illegal custody.
These cases offer contrasting judicial approaches: one, reinforcing constitutional mandates and jurisdictional boundaries; the other, upholding equitable recognition of de facto detention.
At the heart of every bail denial must be the balancing of fundamental rights and public interest.
Article 23(6) strongly presumes release after statutory periods to prevent indefinite detention without trial, a core tenet of both domestic constitutionalism and the International Covenant on Civil and Political Rights (ICCPR, Article 9(3)), which provides that “It shall not be the general rule that persons awaiting trial shall be detained in custody.”
Similar language is replicated in the African Charter on Human and Peoples’ Rights (Article 7(1)(d)), where prolonged pre-trial detention is condemned except in strictly limited circumstances.
In such cases, the judiciary’s invocation of “ongoing investigations” and “risk of interference” must be weighed against the principle that justice delayed is justice denied, especially when charges of such gravity invoke heightened public scrutiny.
Comparative precedent offers guidance. Defence lawyers pointed to the case of the Rwenzururu King, Charles Wesley Mumbere, who, despite serious charges, was granted bail with stringent restrictions limiting his movement.
A similar bespoke judicial approach could have mitigated risk while preserving liberty. The High Court’s categorical refusal to consider anything short of full custodial confinement raised a concern: was the court’s discretion being exercised proportionally, or with over-caution? The authorities’ argument that the “clock” for mandatory bail only began ticking upon transfer to civil jurisdiction raises troubling semantics.
Must justice be recalibrated based on procedural technicalities rather than substantive reality? If detention in a military court is now universally disallowed for civilians, contributed substantively to the accused’s loss of liberty, fairness demands that time be credited, not discounted. Yet judges often resist recognising the de facto over the de jure status of detention, insisting that only legally permissible processes count, thus concurring with the state’s narrow interpretation.
The political question doctrine, imported from U.S. constitutional law, holds that certain controversies, particularly those involving highly politicised or executive-policy decisions without judicially manageable standards, fall outside judicial competence.
In Uganda, the doctrine has a venerable pedigree: in Uganda v Commissioner of Prisons, Ex Parte Matovu (1966), the High Court navigated between refusing to adjudicate the validity of government while asserting the power to interpret constitutional supremacy.
In the Besigye context, the case resides at the confluence of political dissent, executive security prerogatives, and judicial independence.
The question emerges: when alleged treason collides with high-profile opposition and the executive wields investigatory and prosecutorial power with political undertones, should the judiciary acquiesce to cautious reticence or affirm its role as guardian of rights? If bail is denied purely due to political fraughtness, the court risks sliding into “political question” abrogation, where “state interests” trump judicial mandate.
The Matovu framework suggests a more nuanced path: courts may refrain from decisions exclusively concerning executive legitimacy, but they must uphold constitutional rights, including liberty, when legal standards command it. That delicate line is tested when state urgency is measured against procedural fairness.
The executive’s potential interference in arresting Besigye in Nairobi, trying him initially in a military court, and prolonging investigations invokes concerns of overreach.
The judiciary, by refusing bail and deferring to “ongoing investigations,” may be seen as yielding to executive urgency over procedural justice. Yet Matovu affirms that courts cannot abdicate oversight out of fear of a politicised environment; the oath of judicial office compels them to uphold constitutional protections, not sideline them.
Internationally, both the ICCPR and the African Charter enshrine the right to a timely trial and freedom from arbitrary detention. Under the UN Human Rights Committee’s jurisprudence, issues regarding mandatory bail and remand limits must be approached with urgency and scrutiny.
Uganda ratified the ICCPR in 1995 and the African Charter in 1986, and its legal system must interpret domestic law in light of these obligations, reinforcing that extended pre-trial detention, especially in politically charged cases, must be justified by compelling necessity, not expediency.
The UN Human Rights Guidelines on Arbitrary Detention stress that “justice delayed is justice denied,” and states must expedite proceedings when detention continues past statutory limits.
What strikes the literary eye is the tragic irony: two elder statesmen, one aged sixty-eight, the other sixty-five, high in public esteem, detained amid legal limbo not because they pose a threat, their sureties including MPs and family, but because of their political stature.
The judge’s ruling that they may “fall prey to temptation to interfere” is phrased in paternalistic diction, as though these defendants, labelled venerable, are childlike agents of chaos. Here, language betrays logic: protections predicated on innocence erode when the vocabulary shifts from presumption to suspicion.
Classic literature often portrays protagonists ensnared by rigid authority, Shaw’s “Pygmalion,” Orwell’s “1984,” Kafka’s “The Trial.”
In such works, the accused is not always guilty but is victimised by systems indifferent to nuance. Here too, the brilliance lies in the subtle shift: the law acquires a masculine force, abstract and unmoved by equity, enforcing rules at the expense of justice.
A balanced judgment requires acknowledging the state’s duty to investigate alleged conspiracies to overthrow the government by force.
The crimes of treason and misprision of treason are grave and punishable by death, and the state must treat them seriously. Where evidence spans jurisdictions, a delay in the investigation may be justified.
Yet the judiciary must not be held hostage by prosecutorial delay, nor allow procedural formalism to trump substantive constitutional duty.
Once remand thresholds are crossed or nearly crossed, courts must exercise their discretion to impose protective conditions, restrictions, or supervision, ensuring both liberty and integrity of investigations.
The magistrate’s refusal to declare whether the one hundred and eighty days had elapsed citing jurisdiction was unduly evasive. A bolder adjudication, recognising de facto detention time, would have better served justice.
The High Court’s denial rested on the risk of interference but failed to explore less restrictive alternatives such as restricted movement, electronic surveillance, or mandatory check-ins, demonstrating an unnecessarily absolutist posture.
Future rulings should harness Article 23(6)’s mandatory bail and international norms to affirm that protracted pre-trial detention, even in capital offenses, is exceptional, not normative.
Liberty in limbo must not be normalised. The judiciary’s role is not to weather the political storm in silence but to stand as the breakwater against the erosion of rights. It must resist the gravitational pull of political expediency and reaffirm that constitutional promises are not negotiable depending on the identity of the accused.
The true measure of a legal system is not how it treats the harmless or the compliant, but how it safeguards the rights of the dissenting and the defiant. In this moment of reckoning, the court’s fidelity to principle will determine whether Uganda’s Constitution remains a living covenant or is reduced to a decorative preamble.
Ultimately, justice in this case demands more than legal correctness; it demands constitutional courage. The test of the law is not only in convicting the guilty, but in guarding the innocent, and in ensuring that the path to trial does not itself become a punishment.
The denial of mandatory bail to Besigye and Lutale, despite the clear spirit of Article 23(6), is a reminder that rights, once deferred, are rights diminished. The courts must decide whether they will be custodians of that truth, or bystanders to its undoing.
By; Atwemereireho Alex
alexatweme@gmail.com
The writer is a lawyer, researcher and governance analyst.