EJIKU Justine
On 21st September 1972, Ugandans woke up to the shocking and heartbreaking news that Chief Justice Benedicto Kiwanuka, the country’s first African Chief Justice and a fearless defender of the rule of law, had been abducted and subsequently brutally murdered. The country held its breath, the halls of justice trembled, and the very idea of judicial courage seemed, for a moment, to have been executed alongside him. Tomorrow, decades later, Uganda’s judges, resplendent in their traditional robes, crisp white bands, and imposing wigs that cascade over their shoulders, gather to remember Kiwanuka’s legacy. I have no doubt that their day will be filled with lectures, reflections, and discussions on the principles of judicial independence, human rights, and the enduring responsibilities of the courts.
Arrested, detained, and ultimately assassinated, Kiwanuka embodied an era when judges acted without fear, bending to no authority, and serving justice above all else. His Judiciary was not merely a symbol of law; it was a living guardian of the people’s rights, fearless even in the face of mortal danger. The Judiciary has often paid a heavy price for standing firm in the face of power. Courts that rendered impartial and fair decisions have been challenged, undermined by politicians, exposing the persistent tension between judicial independence and the ambitions of those in power. This is a stark reminder that without courage, legal safeguards alone cannot protect the Judiciary or the rights of citizens, and that the true strength of a legal system lies not only in its statutes, but in the unwavering integrity of those who interpret them.
Until recent, Uganda’s Judiciary often embodied the spirit of Benedicto Kiwanuka, earning public trust for its vigilance in protecting human rights. Previously, courts have struck down government acts that violated or threatened human rights, for which Ugandans could rely on the courts to act decisively and fairly, reinforcing the perception that justice was not only written into law but actively defended. Judges exercised independence with courage, balancing the rule of law against pressures from powerful actors, and ensuring that citizens’ rights were respected. This period demonstrated that a Judiciary committed to principle, not convenience, could command the respect and confidence of the people.
In 2005, Dr. Kizza Besigye, was arrested and charged with treason, rape, terrorism, and illegal possession of firearms for which he was tried simultaneously in the High Court and a General Court Martial. His lawyers challenged the jurisdiction of the military tribunal, citing double jeopardy and procedural violations. The Constitutional Court decisively held that the General Court Martial was subordinate to the High Court and had no jurisdiction over the terrorism charges, declaring the purported military trial illegal.
The case provoked strong reactions from military officials. General David Tinyefuza, the then Coordinator of Security Services, publicly accused the judges of siding with offenders, angrily declaring, “Who are these fellows (judges)? The judges have no power to order the army. The army will not accept this business of being ordered by the judges.” He further questioned the authority of the learned Principal Judge, Hon. James Ogoola, asking, “Who appointed him? Did he go through a ballot? Did he come there by accident?” Similarly, General Elly Tumwine, then head of the General Court Martial, rejected the court’s judgment and attempted to summon the suspects anew. Despite these threats and the executive’s tacit support for military defiance, the Judiciary remained steadfast, demonstrating a remarkable commitment to its constitutional mandate.
Amidst heavy intimidation, including a siege of the High Court building by the Black Mambas, the Court granted Besigye bail although he was illegally re-arrested and the Principal Judge publicly condemned the attack, calling the day “a day of infamy” and describing the siege as “the rape and defilement of the temple of justice.” Justice Katutsi later ordered the Commissioner of Prisons to produce Dr. Besigye and explain his continued detention, ultimately declaring it unlawful and ordering his immediate release. These courageous actions reflect the highest ideals of judicial independence and the Kiwanuka spirit: fearless, principled, and unwavering in the protection of human rights, even when confronting the combined pressures of military power and political intimidation.
The Judiciary’s current handling of Dr. Kizza Besigye’s case underscores the stark contrast between today’s courts and the principled leadership of Chief Justice Ben Kiwanuka. Arrested and driven on November 20th 2024 from Nairobi to Kampala without following the extradition laws, Besigye was illegally arraigned before the General Court Martial whose jurisdiction he rejected. This rejection prompted the Supreme Court to issue the much anticipated ruling in the AG V Hon Micheal Kabaziguruka SC Const Appeal case in which the court held that the military court had no jurisdiction to try civilians.
In much as this ruling carried some aspects of the Ben Kiwanuka’s spirit, it fell short on his courage, while the court denied the military courts jurisdiction, it failed to direct the military court to release Besigye whom in the spirit of their ruling was been illegally detained. It instead ordered the court to transfer files of the illegal charges to a civilian court. By ordering for the transfer of files, the Supreme Court showed that it lacked the courage that was shown by Justice Katutsi of the High Court when he in 2005 ordered the Commissioner of Prisons to produce Dr. Besigye, explain his continued detention, ultimately declaring it unlawful and ordering his immediate release.
The Supreme Court’s order to transfer Besigye’s files from the military court to the civilian courts was an act of convenience rather than courage. It is, therefore, no surprise that of all the directives they issued, the only one implemented with lightning speed was the amendment of the UPDF Act an exercise hurried through by the Minister of Justice and Attorney General while the simple transfer of files remains, to this day, an unfulfilled promise. And when Besigye’s file eventually reached the civilian courts, the spirit of Ben Kiwanuka was once again tested, only to fail miserably in the hands of Justice Rosette Comfort Kania, who on April 11th denied Besigye bail, despite openly acknowledging that every legal condition for its grant had been satisfied.
In her ruling cloaked in formal legal language, but carrying a political character, Justice Rosette Comfort Kania held that; “Although all grounds for bail are met, the application for bail is denied. The investigations are ongoing, and the applicants may still fall prey to the temptation of interfering with those investigations.” She further held that; ““The right to liberty is fundamental, but must be weighed against the interests of national security. Bail is not an entitlement; it is a matter of court discretion.”
This same political and injudicious conduct resurfaced on August 12th, 2025, this time embodied in Justice Emmanuel Baguma who, according to Besigye’s lawyers, irregularly assigned himself the file that properly belonged to the International Crimes Division and stubbornly refused to recuse himself. In his ruling denying bail, Justice Baguma reasoned that the application was premature, insisting that the mandatory 180-day remand period had not elapsed. He further clarified quite conveniently that the official remand period began on February 21st, 2025, when the applicants were formally charged in a civilian court, rather than from their initial abduction and detention by the military in November 2024. Such reasoning fell short of logic and common sense, yet ironically affirmed one important truth: that prior to February 21st, Besigye had indeed been illegally detained, and that the Supreme Court erred gravely in failing to order the release of civilians who were unlawfully held under trumped-up military charges.
The judges’ decisions, neatly wrapped in procedural technicalities, reveal a Judiciary hesitant to summon the moral courage that Ben Kiwanuka once demanded, and dangerously detached from an evolving world even though the Constitution provides ample safeguards for judicial independence. As Justice A.R. Gubby of Zimbabwe once reminded the continent, judges must align their rulings with progressive norms recognized across jurisdictions, ensuring that domestic law mirrors universal principles of justice and liberty. In Besigye’s case, fidelity to these norms would have required the courts to enforce constitutional protections decisively, rather than hiding behind procedure or bowing to political considerations that prolonged his unlawful deprivation of liberty.
Judicial officers are vested with significant privileges and immunities, underscoring the vital role they play in dispensing justice impartially and without fear, favour, or ill will. Yet these privileges carry a profound responsibility: The Judiciary exists not for its own preservation, but in service of the people, to guarantee that every individual receives fair treatment under the law. The handling of Dr. Besigye’s case by Justices Emmanuel Baguma and Rosette Comfort Kania illustrates that the strength of the Judiciary rests not merely on constitutional guarantees but on the personal integrity and moral courage of its officers. A Judiciary that readily bends to the weight of executive or political pressure inevitably erodes both its credibility and its ability to dispense justice with impartiality and authority.
At an international conference of refugee law judges in Ottawa, one of Canada’s Chief Justices once emphasized that judicial independence extends beyond mere legal provisions, it is shaped by the culture, beliefs, and expectations of society regarding the Judiciary’s role, and governs the relationship between courts, other arms of government, and the public. In the case of Dr. Kizza Besigye, this independence has clearly been compromised. Despite explicit constitutional protections, the conduct of judges has allowed his prolonged detention, appearing to yield to political or executive influence. Such actions erode public confidence and reveal that the courage and moral authority once exemplified by Ben Kiwanuka are far weaker today, a stark contrast to the era when judges dared to uphold justice without fear or favour.
Ben Kiwanuka’s legacy demonstrates that judicial courage, grounded in both constitutional and international standards, is indispensable for safeguarding liberty and delivering justice. Judges of his era acted decisively to uphold the law and shield citizens from the overreach of power, understanding that their allegiance lay first with the Constitution and the people, not with the whims of the powerful. Remembering Ben Kiwanuka is more than an act of tribute; it is a clarion call to action. His legacy challenges today’s Judiciary to reclaim its independence and assert the supremacy of the Constitution. Dr. Besigye’s detention is not merely a political issue, it is a litmus test of Uganda’s courts and the principles they profess to uphold. Let Kiwanuka’s courage guide the Judiciary: protect the rights of every citizen, uphold the rule of law without fear or favour, and restore justice where it has been denied. In the spirit of Kiwanuka, Besigye should be freed not as a favour, but as a restoration of the rule of law and the principles of justice that once defined Uganda’s Judiciary.
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