The burden is on the court to justify detention, not on the accused to prove they deserve freedom.
In Uganda's courtrooms, a quiet but consequential shift is underway: the presumption of innocence, long the bedrock of criminal justice, appears to be yielding to the weight of accusation itself. Constitutional lawyer Abubaker Sekanjako has raised an alarm before the Uganda Law Society, arguing that courts in Kampala and beyond are increasingly treating the gravity of a charge as a substitute for proof of guilt, leaving accused persons — many of them opposition figures — in prolonged detention despite constitutional guarantees of liberty. The concern is not merely procedural; it is a question of whether the judiciary still understands itself as a guardian of freedom or has quietly accepted detention as the natural order of things.
- Courts are inverting the constitutional logic of criminal justice — asking how serious a charge is rather than whether detention is constitutionally justified, effectively punishing people before any verdict is reached.
- The denial of bail to former Kampala Lord Mayor Erias Lukwago, even after medical evidence was presented showing he needed care unavailable in prison, has become a flashpoint illustrating how far the courts have drifted from their protective role.
- The late MP Muhammad Ssegirinya's deteriorating health in custody and the refusal to allow NUP politician Alex Waiswa Mufumbiro to bury his wife stand in stark contrast to a High Court that permitted a king facing serious charges to travel home for his mother's funeral — exposing a pattern of unprincipled discretion.
- Sekanjako points to a 2005 precedent by Principal Judge Ogoola that placed the burden of justifying detention on the court, not the accused — a standard he argues has been quietly abandoned by subsequent judicial practice.
- Even administrative and technological failures are compounding the crisis: judges claim they cannot access electronically filed bail documents, and the judiciary that can dispatch a judge across the country for an election dispute appears unwilling to mobilize the same urgency for a person's fundamental liberty.
Inside a Kampala courtroom, the question of who gets to go home while awaiting trial has become a test of whether Uganda's courts still believe in freedom. Constitutional lawyer Abubaker Sekanjako brought that question into the open at a Uganda Law Society forum, where he argued that a troubling pattern has taken hold: courts are increasingly defaulting to detention, even when the Constitution grants them clear authority to release accused persons.
The immediate catalyst was the case of Erias Lukwago, former Lord Mayor of Kampala, who was remanded to Luzira Prison despite medical evidence that he required specialized treatment unavailable behind its walls. To Sekanjako, the court's decision to send him back rather than to Mulago Hospital was not an isolated misjudgment — it was a symptom of a judiciary that has stopped actively defending liberty. Article 23 of the Constitution guarantees detained persons access to medical care and legal representation. The court had the power to enforce that guarantee and chose otherwise.
The deeper problem, Sekanjako argues, is a philosophical reversal. Courts are now treating the seriousness of a charge as though it were evidence of guilt, eroding the constitutional presumption of innocence that should anchor every criminal proceeding. He traces a better standard to a 2005 ruling by then-Principal Judge James Ogoola, who made clear that the burden of justifying detention rests with the court — not with the accused person seeking freedom. That principle, Sekanjako says, has been gradually abandoned.
The inconsistencies are difficult to explain on legal grounds. A High Court allowed Rwenzururu King Charles Wesley Mumbere to travel to Kasese under strict conditions to bury his mother, demonstrating that courts can balance liberty with public concern even in grave cases. Yet NUP politician Alex Waiswa Mufumbiro was denied the same consideration to bury his wife. The late MP Muhammad Ssegirinya submitted medical documentation of his deteriorating health, yet repeated bail applications failed. No clear principle distinguishes these outcomes.
Sekanjako also challenges the judiciary's claimed incapacity to hear urgent matters. When election litigation demanded it, a judge was sent from Kampala to Masaka. The administrative will exists — the question is whether it will be applied to cases involving personal liberty. Meanwhile, technological dysfunction in electronic filing systems is adding fresh delays, leaving accused persons on remand while paperwork disputes are resolved. The Constitution's protections for liberty are adequate, Sekanjako maintains. What is failing is the willingness to make them real.
In a Kampala courtroom, the question of who gets to go home while awaiting trial has become a measure of whether Uganda's courts still believe in freedom. Abubaker Sekanjako, a constitutional lawyer who has spent years defending opposition figures through Uganda's legal system, has begun to worry that the answer is no.
Sekanjako made his concern public during a discussion hosted by the Uganda Law Society, speaking to a room of lawyers gathered to examine whether the judiciary is failing to protect human rights. His worry centers on a pattern he sees emerging across recent judicial decisions: courts are increasingly choosing to keep accused people locked up, even when the Constitution gives them the power to release them. The trigger for this conversation was the denial of bail to Erias Lukwago, the former Lord Mayor of Kampala, despite medical evidence presented to the court that he required specialized care he could not receive in prison.
The problem, Sekanjako argues, runs deeper than any single case. Courts are starting with the wrong question. Instead of asking whether there is a constitutional reason to detain someone, they are asking how serious the charge is. This reversal matters enormously. The Constitution presumes every accused person innocent until a court has actually convicted them. That presumption is not a suggestion; it is the foundation of criminal justice. Yet what Sekanjako observes is that judges now treat the gravity of an allegation as if it were already proof of guilt. Murder, terrorism, treason—the seriousness of the charge has begun to overshadow the basic constitutional right to be presumed innocent.
Lukwago's case crystallizes the problem. The court heard medical arguments. The court was presented with evidence that Lukwago needed treatment outside prison walls. The court then remanded him anyway, sending him back to Luzira Prison rather than to Mulago Hospital. To Sekanjako, this decision illustrates a judiciary that has stopped actively defending liberty and has instead made detention the default. Article 23 of the Constitution guarantees detained persons access to medical treatment and legal representation. The court had the power to enforce that guarantee. It chose not to.
Sekanjako traces this retreat to a shift in judicial philosophy. He points to a 2005 decision by then-Principal Judge James Ogoola in a case involving opposition leader Kizza Besigye. Ogoola made clear that the burden falls on the court to justify why an accused person should remain in custody. The burden does not rest on the accused to prove they deserve freedom. That understanding placed constitutional rights where they belong—at the center of criminal justice, not at its margins. Later decisions, Sekanjako says, have gradually abandoned that standard. Courts today appear reluctant to assert their constitutional authority. Instead of acting as guardians of liberty, many decisions now seem designed to prioritize detention.
The inconsistencies are stark enough to raise questions about principle. Rwenzururu King Charles Wesley Mumbere, facing serious charges, was permitted by the High Court to travel to Kasese under strict conditions to bury his mother. The court demonstrated that it could balance liberty with legitimate public concerns even in grave cases. Yet NUP politician Alex Waiswa Mufumbiro was denied permission to leave prison to bury his wife. What principle distinguishes the two outcomes? Sekanjako cannot identify one. The late MP Muhammad Ssegirinya presented medical documentation showing his health was deteriorating in custody, yet repeated bail applications failed. These cases suggest not a consistent application of constitutional law but a pattern of discretion exercised without clear principle.
Sekanjako also challenges the claim that the judiciary lacks capacity to hear urgent bail applications. When an election dispute arose involving Justine Nameere, a judge was dispatched from Kampala to Masaka to hear the matter. If the judiciary can mobilize resources for election litigation, why not for cases involving a person's fundamental right to liberty? The system has the administrative capacity to prioritize urgent cases when it chooses to do so. The question is whether it chooses to.
Technology has introduced new barriers. Lawyers upload documents required for bail applications, but judicial officers claim they cannot see them in the electronic system. Even when hard copies sit in the courtroom, they may refuse to consider them because the electronic filing system has not caught up. The consequence is another week on remand while paperwork is sorted. The Constitution contains adequate protections for personal liberty, Sekanjako maintains. The challenge lies in implementation—in the willingness of courts to breathe life into the rights written on paper. If courts become hesitant to defend liberty, then the rights guaranteed by the Constitution risk becoming promises that citizens cannot meaningfully enjoy.
Citas Notables
The Constitution presumes every accused person innocent until proven guilty. No matter the offence, 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.— Abubaker Sekanjako, constitutional lawyer
It is the responsibility of the court to justify why an accused person should remain in custody. The duty is not on the accused to convince the court that they deserve freedom.— Sekanjako, citing former Principal Judge James Ogoola's 2005 decision
La Conversación del Hearth Otra perspectiva de la historia
You're describing a shift in how courts approach detention. Is this a recent change, or has it always been this way?
It's a shift. There was a moment—Ogoola's decision in 2005—when the court clearly understood that liberty is the default and detention requires justification. That understanding seems to have reversed. Now detention appears to be the default, and liberty requires justification.
But judges must have reasons for these decisions. They're not arbitrary, are they?
The reasons given are often the seriousness of the charge. But that's precisely the problem. The Constitution says an accused person is innocent until proven guilty. The seriousness of the allegation is not proof of guilt. It's treating the charge as if the trial has already happened.
What about cases like Lukwago's, where there were medical concerns? Surely that should have mattered.
It should have. The court heard the medical evidence. It was presented with documentation. But the decision was still to remand him. That's what troubles me—not that courts sometimes deny bail, but that they seem unwilling to engage seriously with the arguments for release.
You mentioned inconsistency. The Mumbere case versus the Mufumbiro case. Can you explain why that matters?
Because law should be predictable. If two people face serious charges and one is permitted to attend a funeral while the other is not, there should be a clear constitutional principle explaining the difference. If there isn't, then discretion is being exercised without principle. That's when you start to wonder whether something else is influencing the decisions.
Like what?
Like whether the accused person is politically connected or politically opposed to the government. I can't prove that. But when the outcomes are inconsistent and the principle is unclear, that question becomes impossible to avoid.
You mentioned the judiciary has the capacity to hear urgent cases. What do you mean?
When there's an election dispute, judges are deployed across the country to hear it quickly. The system mobilizes. But when someone's liberty is at stake—when they're sitting in prison awaiting trial—the same urgency doesn't apply. That suggests it's a matter of institutional priority, not capacity.