The administration of criminal justice is often measured not by the outcome of individual cases but by the consistency with which constitutional principles are applied. Courts are expected to balance society’s interest in the efficient prosecution of crime against the equally important obligation to safeguard the rights of those standing trial. When these competing interests intersect, constitutional guarantees must remain the guiding standard rather than procedural convenience. It is at this intersection that recent developments in the prosecution of Dr Kizza Besigye and his co accused raise broader questions about the application of Uganda’s constitutional protections and the continuing strength of judicial independence.
Although the proceedings involving Dr Besigye have attracted significant political attention, the legal issues arising from the case transcend the individuals involved, touching on principles that affect every Ugandan who may one day find themselves before a court of law. Among the most significant is the constitutional right to legal representation and whether that right includes the freedom to reject state appointed counsel in favour of privately retained lawyers.
The Constitution of the Republic of Uganda, 1995, establishes the right to a fair and impartial hearing through a framework of interconnected protections. Article 28(1) guarantees every individual the right to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law. That guarantee is reinforced by Article 28(3)(d), which expressly provides that an accused person may appear in person or be represented, at their own expense, by a lawyer of their choice.
Article 28(3)(e) complements this protection by requiring legal representation at state expense for persons charged with offences carrying the death penalty or life imprisonment where the interests of justice so require.
The constitutional architecture is deliberate. Article 28(3)(e) was never intended to diminish the autonomy protected under Article 28(3)(d). Rather, it exists to ensure that poverty does not become a barrier to justice. State funded legal representation is therefore a constitutional safeguard designed to protect vulnerable accused persons who cannot afford legal counsel. It is not, on its face, a mechanism through which the state may substitute an accused person’s chosen advocate with one selected through a court approved process.
This distinction is more than a matter of legal interpretation. It reflects one of the defining characteristics of constitutional democracies. Rights created to protect citizens from disadvantage should not be transformed into obligations that limit personal autonomy. Where an accused person possesses both the financial means and the desire to retain legal counsel of their own choosing, compelling the acceptance of state appointed lawyers risks undermining the very purpose for which constitutional legal aid provisions were introduced.
The debate becomes even more complex where an accused argues that their preferred legal representatives have been prevented from effectively representing them. Whether such claims ultimately succeed in law is a matter for judicial determination.
However, where proceedings continue while related legal challenges concerning representation remain unresolved, questions inevitably arise regarding procedural fairness and whether the accused has been afforded a genuine opportunity to exercise the constitutional rights guaranteed under Article 28.
These concerns are not unique to Uganda. International human rights jurisprudence has consistently recognised that the right to legal representation extends beyond the mere physical presence of a lawyer. Article 14 of the International Covenant on Civil and Political Rights guarantees an accused the right to defend themselves through legal assistance of their own choosing. Similarly, Article 7 of the African Charter on Human and Peoples’ Rights protects the right to defence, while the African Commission has repeatedly emphasised that legal representation must be practical, effective and genuinely independent.
While the right to counsel of choice is not absolute, any limitation must satisfy strict standards of necessity, proportionality and fairness. Restrictions cannot be justified solely by administrative convenience or judicial efficiency. Instead, they must pursue a legitimate objective without unnecessarily impairing the accused’s constitutional protections.
The issue is therefore not whether courts possess the authority to appoint counsel where circumstances demand it. The more difficult question is whether that authority should extend to overriding an accused person’s constitutionally protected preference for privately retained legal representation when no inability to secure such representation has been established.
Rachael Twinomugisha is a legal analyst and commentator on international human rights law and criminal justice issues across Africa and beyond.
