Last week’s denial of bail to former Kampala Lord Mayor Erias Lukwago has reignited debate over whether Uganda’s courts are living up to their constitutional duty to protect personal liberty.One of opposition doyen Dr Kizza Besigye’s lawyers, Abubaker Ssekanjako, argues that the judiciary is increasingly retreating from its role as guardian of the rights of accused persons. Besigye, who is facing treason charges, has been on remand since November 2025, with all his bail applications denied.Speaking during a public discussion hosted by Uganda Law Society (ULS) president Isaac Ssemakadde, Ssekanjako said a series of recent judicial decisions point to an emerging pattern in which detention is increasingly favoured over liberty, even where courts have the constitutional discretion to order otherwise.The discussion was held under the theme: “Remand without Remedy: Is Uganda’s Judiciary Failing Human Rights?”The debate comes amid growing public concern over prolonged pre-trial detention, access to bail, habeas corpus applications and the treatment of opposition politicians facing criminal charges.“The Constitution presumes every accused person innocent until proven guilty,” Ssekanjako said.“No matter the offence, whether it is murder, terrorism, or treason, so long as a person has not been tried and convicted, they remain an accused person. Courts must approach every application from that constitutional starting point. Unfortunately, what we increasingly see is that the gravity of an allegation is treated as if it is already proof of guilt. The seriousness of the charge overshadows the constitutional presumption of innocence,” he observed.The advocate, who previously worked at Lukwago & Company Advocates before co-founding Olympia Advocates, has participated in several landmark constitutional and election cases, including the presidential election petition, the constitutional challenge to the age-limit amendment and litigation involving military trials of civilians.He was also among the lawyers who intervened in a Constitutional court petition challenging Section 11 of the Human Rights Enforcement Act. Ssekanjako said he and other constitutional lawyers sought to join the case because they believed the Attorney General was effectively conceding the petition, leaving fundamental constitutional protections without meaningful defence.“We realised that unless we intervened, nobody would adequately defend those constitutional guarantees,” he said.“We had a clear position. We believed these protections are central to Uganda’s constitutional order. We were not joining the case merely as friends of the court; we had a direct interest in ensuring that rights which protect every Ugandan from abuse by the state are not weakened through litigation.”On the controversy surrounding the denial of bail to opposition leaders, Ssekanjako maintained that bail is fundamentally about liberty, not punishment. He cited Lukwago’s remand as one of the clearest examples of what he described as the judiciary’s increasingly restrictive approach to liberty.According to Ssekanjako, despite medical concerns raised before court, the decision to remand Lukwago ignored constitutional guarantees protecting accused persons.“The right call would have been to send him to Mulago, at the very least, not Luzira. The court was presented with medical concerns and extensive submissions, yet there was no meaningful response to those arguments. Instead, the decision was to remand him. That illustrates the growing tendency to subordinate liberty and health to detention.”He noted that Article 23 of the Constitution guarantees detained persons access to medical treatment and legal representation, arguing that courts should actively enforce those protections instead of treating detention as the default option.Ssekanjako argued that many judicial officers now begin with the seriousness of the offence rather than the constitutional right to liberty, reversing principles that have guided criminal justice for decades.He cited former principal judge James Ogoola’s landmark interim bail ruling in Besigye’s 2005 case as one of the strongest judicial affirmations of liberty ever delivered in Uganda.“Justice Ogoola made it very clear that it is the responsibility of the court to justify why an accused person should remain in custody,” Ssekanjako said.“The duty is not on the accused to convince the court that they deserve freedom. The duty lies with the court to explain why liberty should continue to be taken away. That understanding places constitutional rights where they belong, at the centre of criminal justice.”According to Ssekanjako, subsequent decisions have gradually retreated from that standard.“Courts today appear restrained from asserting their constitutional authority,” he said.“Instead of acting as guardians of liberty, many decisions now appear to prioritise detention. The constitutional provisions remain the same, but the willingness to breathe life into them has diminished.”Chief Justice Dr Flavian Nzeija taking oathSsekanjako also reflected on his role in representing Besigye following the Supreme Court decision declaring the trial of civilians before the General Court Martial unconstitutional.He said the legal team faced an unprecedented situation because the Supreme Court ordered its judgment to take immediate effect, yet Besigye remained in prison while prosecutors had not transferred the case to civilian courts.“We found ourselves asking a simple constitutional question,” he recalled. “If the General Court Martial could no longer lawfully exercise jurisdiction over civilians, under what lawful authority was Dr Besigye still being detained? The Director of Public Prosecutions had not yet taken over the matter, yet prisons continued holding him. We considered the writ of habeas corpus because we believed the continued detention raised serious constitutional questions.”Although the application was overtaken by events after Besigye was eventually produced before a civilian court, Ssekanjako said the incident exposed weaknesses in the protection of personal liberty.He criticised judicial decisions declining to order the production of missing detainees after security agencies denied holding them.“It defeats logic. The purpose of habeas corpus is not to wait for the state to admit that it arrested someone. If the state could simply deny custody and defeat the application, then the remedy would become meaningless. The court must assess the evidence before it and compel accountability wherever there is a reasonable basis to believe the state knows the whereabouts of a disappeared person.”He added:“The state bears that obligation. Whenever credible evidence suggests someone has disappeared after contact with state agents, courts should require an explanation rather than accept blanket denials.”Ssekanjako also cited the late Kawempe North MP Muhammad Ssegirinya as an example of what he considers missed opportunities for courts to uphold constitutional protections.“We placed medical documentation before the court showing his condition. Those documents demonstrated that his health could only properly be managed outside prison. Yet the courts repeatedly remanded him. Looking back, it raises profound questions about how judicial discretion was exercised where liberty and the right to health intersect.”He pointed to the case of Rwenzururu king Charles Wesley Mumbere, who was allowed by the High Court to travel to Kasese under strict conditions to bury his mother.“The judges demonstrated that the gravity of the offence must not always be prioritised over liberty. No matter whether someone is charged with treason, terrorism, or murder, they remain an accused person until convicted. If there are legitimate concerns that the person may abscond, the court has many options; it can impose conditions, require security, or direct the state to supervise the accused throughout the period of temporary release.”He contrasted that decision with the case of detained National Unity Platform deputy spokesperson Alex Waiswa Mufumbiro, who was denied permission to leave prison to bury his wife.“The question is what principle distinguishes the two cases,” he said, arguing that similar constitutional considerations should produce consistent judicial outcomes.Ssekanjako also challenged explanations that shortages of judges make it difficult to hear urgent bail applications.“If a judge could be dispatched to determine an election dispute, why can’t the judiciary do the same when someone’s liberty is at stake?” he asked.“Fixing a bail application should not become an impossible exercise. We have many judges. If one station has no available judicial officer, another can be assigned. We saw that happen in an election matter. The same urgency should apply where a person’s constitutional right to liberty is involved.”Asked whether the judiciary’s Electronic Court Case Management Information System (ICMIS) has improved access to justice, Ssekanjako acknowledged its potential benefits but said lawyers continue to face practical obstacles that sometimes prolong detention unnecessarily.“You may upload every document required for a bail application. Then the judicial officer says, ‘I cannot see the documents.’ Even when you have the original hard copies in court, they may refuse to consider them because the electronic system has not reflected the upload. The consequence is another week on remand while paperwork is sorted out. Technology should reduce barriers to liberty, not create new ones,” he explained.He also criticised delays in admitting electronically filed documents and issuing hearing notices, saying such technical challenges frequently disrupt court schedules.Ssekanjako maintained that Uganda’s Constitution contains adequate protections for personal liberty, but argued that the challenge lies in implementation.“The Constitution was not written to become a museum piece. Its provisions must continue to grow and respond to the demands of every generation. Human dignity evolves with society, and constitutional interpretation must evolve with it. If courts become hesitant to defend liberty, then the rights guaranteed on paper risk becoming promises that citizens cannot meaningfully enjoy,” he argued.The post Lawyers: Uganda’s judiciary now treating Constitution like a museum piece appeared first on The Observer Media Ltd.