Defence lawyers representing opposition leader Dr Kizza Besigye and co-accused Obeid Lutale have applied to the High Court to refer their treason case to the Constitutional Court.
They want clarity on whether Justice Emmanuel Baguma can continue presiding after being accused of bias and incompetence.
This follows Justice Baguma’s earlier decision to decline recusal, ruling that there were no valid grounds to step aside.
Lead defence counsel Ernest Kallibala argued that the issue raises serious constitutional questions, particularly whether a judge accused of bias can remain independent and impartial under Articles 28(1) and 44(c) of the Constitution.
Citing Article 137(5), he said the court has power to refer constitutional questions for interpretation.
“The question is whether a judge who is a respondent to a complaint before the Judicial Service Commission can fairly determine the innocence of the very person accusing him,” Kallibala submitted.
The prosecution opposed the application, arguing that no genuine constitutional question exists, relying on precedents such as Uganda vs Serugo Ismail v KCCA and Attorney General, which held that constitutional references must arise from real legal questions, not dissatisfaction with a judge’s conduct.
Kallibala countered that it was unusual for the prosecution, whose role is to present evidence, to oppose a bid for constitutional clarity.
He added that the petition lodged with the Judicial Service Commission against Justice Baguma did not concern the prosecution.
Lawyer Erias Lukwago also questioned the timing of Justice Baguma’s ruling, saying it created a perception that the case is being handled with interest.
The court is expected to decide on October 6 whether to allow the constitutional reference before the main trial resumes.
