Besigye case: Why is it so hard to obey apex court’s decision?

In short order, rights organisations in the region decided to take action and put together a team to visit Besigye and his co-detainee in Luzira, Obeidi Lutaare, as a first step. The team was headed by Kenyan Senior Counsel Martha Karua, and included some of the region’s legal experts, human rights campaigners and supporters.

The regulation documentation and physical checks and frisks were thorough but courteous, and the short stay with the Luzira prison commander before the detainees were allowed in was easy, though quiet. Soon, a hush fell on the small group of friends, colleagues and well-wishers assembled there for him as Besigye and his co-detainee were let in.

It took a couple of seconds for the gathering to realise that it was, indeed, he whom they had come to see. Gentle shuffling and jostling ensued as Kizza recognised faces, said a word or two, and each one of the visitors made an effort to voice a greeting or something like it.

Kizza and Lutaare looked alright physically; they did not look in any way emaciated or faltering in their step as they shook hands, gave bear hugs and exchanged pleasantries. Many of the assembled were clearly acquaintances with whom Besigye had worked or otherwise engaged.

Read: Besigye woes: He had it coming, so it was a matter of when

Advocate Karua introduced each one of the visitors, mentioning their organisations and their roles in the prosecution of this cause celebre, and these took turns to express their solidarity with the two detainees. At the end, Besigye expressed his pleasure at receiving this delegation as a mark of solidarity and moral support.

In short order the visit turned into a “baraza” – a council at which issues of governance and human rights were aired, with sharp criticisms directed at the Ugandan government, which was bent on stifling any and every voice of discontent, making for more naked authoritarianism and repression.

The old doctor showed no bitterness, discussing issues dispassionately, time and time again offering advice and trenchant insights.

Rather than dwell on his own plight, Kizza, 68, wanted people to know his spirits were not dampened and that he was strong. He had been the first to be charged under the court martial (now likely the last also) and had been charged with all sorts of crimes, such as illegal weapons, but that had not bent him, and this show of the Jumuiya solidarity and the support of comrades gave him fortitude.

He could even afford a wry joke about considering Luzira and other prisons as his second homes, since he has been in and out of prison so many times that he now considers them as home. He told the group that the oppressive regimes against which the peoples of the region were fighting were coordinating their oppression now, including abductions and cross-border renditioning, in consequence of which those fighting for human rights and democracy had likewise to coordinate their efforts. 

Before and after the Luzira visit, Ms Karua and her team were knocking on every judicial door in Kampala to find out what was happening with the implementation of the judgment of the Supreme Court. The highest court in the land had made a clear determination, which had been awaited a good four years – that military courts cannot deliver justice to civilian parties.

What remained was the logical implementation of the decision, which should include the immediate and unconditional release of Besigye and Lutaare, among others.

Advocate Karua’s efforts did not bear fruit for the three or four days that the international support group was in Kampala and, until today, the authorities seem unable – or unwilling – to accede to the requirements of the law.

It appeared that the Supreme Court decision had caught the authorities napping, creating the proverbial deer-in-the-headlight moment, not knowing exactly what to do next, a fact that Ms Karua has had to grapple with too, because the Ugandan officials were torn between obeying legality (and freeing Kizza), and being loyal to President Yoweri Museveni and refusing to acknowledge the decision of the highest court in the land. 

In a moment in which he seemed to suffer a Freudian slip, the long-serving commissioner-general of the Uganda Prisons, Dr Johnson Byabashaija, kept on repeating, when visited by Ms Karua, that his prison service was not an outfit in a “rogue state” and he would do whatever the law required him to do.

Museveni comes across as someone who has been surprised by the audacity of the apex judicial body, chaired by Chief Justice Alphonce Owiny Dollo, in a 6-1 majority decision. On this occasion, President Museveni claimed the decision was “wrong”, adding that the country was “not run by judges” but by the people through their elected representatives, clearly baring his scorn for the doctrine of separation of powers.  

Yet this case has been slowly grinding its passage through the tedious judicial processes since 2016, when a former Member of Parliament, Michael Kabaziguruka, challenged the right of the army to charge him with security-related offences, stating that civilians had no hope of accessing justice in military-run courts.  

With the seismic decision of the Supreme Court in the Kabaziguruka case, and the apparent reluctance on the part of government to implement it by giving it effect (to begin with, the release of Besigye and his comrades), one hopes there surely remains in him a modicum of propriety.

Everybody knows that Museveni is not the quintessential military man, despite all the titles he has made people to give him. Deep down, he knows he is a civilian who took up the gun to right a wrong in politics. So, when he is told by civilians that they do not want to be tried by the military, he, of all people, should understand.

But it may be a tall order for a revolutionary who has allowed his son and head of the military, General Muhoozi Kainerugaba, to declare, without apparent fear of reprisal, that his father’s nemesis, Besigye, will only come out of prison in a coffin or on his knees. Ominous words.