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The ongoing treason proceedings involving Kizza Besigye and his co-accused Abeid Lutale have revived an old but fundamental constitutional debate within Uganda’s legal system: Can justice be fairly administered when the prosecution seeks to conceal the identity of its witnesses?
Since the emergence of the case in November 2024, legal practitioners, scholars, and observers of Uganda’s judiciary have raised serious questions about the procedural legality of the State’s request to rely on anonymous witnesses. These questions are not merely political; they strike at the very foundation of the constitutional right to a fair trial and the credibility of the justice system itself.
The Constitutional Guarantee of a Fair Hearing
The starting point in evaluating the legality of anonymous witnesses in Uganda must be the 1995 Constitution of the Republic of Uganda.
Article 28(1) provides that:
“In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy, and public hearing before an independent and impartial court or tribunal established by law.”
More critically, Article 28(3)(g) provides that every person charged with a criminal offence shall:
“be afforded facilities to examine witnesses against him or her and to obtain the attendance and examination of witnesses on the same conditions as those applying to witnesses called by the prosecution.”
This constitutional guarantee forms the legal basis of cross-examination, which is widely regarded as the most powerful mechanism for discovering the truth in adversarial criminal proceedings.
Equally significant is Article 44(c) of the Constitution, which declares that the right to a fair hearing is non-derogable. This means that the right cannot be suspended even in circumstances involving national security or a state of emergency.
Therefore, any attempt to restrict the ability of the accused to challenge prosecution witnesses must meet an extremely high constitutional threshold.
The Evidence Act and the Testing of Witness Credibility
Uganda’s Evidence Act establishes the legal framework governing the admissibility and examination of evidence in court proceedings.
Several provisions within the Act recognize the role of cross-examination as an essential safeguard against unreliable testimony. Once a witness gives evidence in chief, the opposing party is entitled to cross-examine that witness in order to:
The effectiveness of cross-examination depends heavily on the defence knowing who the witness is, their background, and any potential interests they may have in the case.
If the prosecution is permitted to present testimony from individuals whose identities remain concealed, the defence may be deprived of the opportunity to investigate issues such as:
In criminal law—especially in cases involving allegations as serious as treason—such limitations raise significant concerns regarding procedural fairness.
The Judicature Act and Principles of Natural Justice
The Judicature Act (Cap. 13) further requires courts to administer justice in accordance with the Constitution, written law, and the principles of natural justice.
One of the most important doctrines of natural justice is the principle of Audi Alteram Partem, meaning “hear the other side.”
This doctrine requires that a person accused of wrongdoing must have a genuine opportunity to challenge and test the evidence presented against them.
If witnesses remain anonymous, the defence may face severe restrictions in preparing an effective challenge to their testimony. Such circumstances risk undermining the fairness of the proceedings unless carefully balanced by strong legal safeguards.
The Penal Code Act and the Gravity of Treason Charges
The charges facing the accused arise under the Penal Code Act.
Under Section 23, the offence of treason includes acts such as:
Treason is among the most serious offences in Uganda’s criminal law and carries severe penalties, historically including life imprisonment or capital punishment, as stipulated under Section 24(c) of the Act.
Because of the gravity of such accusations, courts traditionally insist that the prosecution’s evidence be clear, credible, and rigorously tested.
When anonymity shields the identity of witnesses in such cases, the need for strict judicial scrutiny becomes even more urgent.
Guidance from Ugandan Case Law
Ugandan courts have consistently emphasized that the fairness of criminal proceedings must never be compromised.
In Twinobusingye Severino v Uganda (Criminal Appeal No. 47 of 1995), the Supreme Court held that criminal convictions must rest on credible evidence that has been properly tested through cross-examination.
Likewise, in Uganda v Col (Rtd) Dr. Kizza Besigye (Constitutional Petition No. 7 of 2006), the Constitutional Court underscored that procedural irregularities capable of undermining a fair trial cannot be tolerated, even in politically sensitive prosecutions.
These precedents reinforce the constitutional principle that fair trial rights are substantive guarantees, not mere procedural formalities.
International Law and Uganda’s Obligations
Uganda’s constitutional order also recognizes international human rights commitments.
Under the International Covenant on Civil and Political Rights, Article 14(3)(e) guarantees that every accused person has the right:
“to examine, or have examined, the witnesses against him.”
Similarly, the African Charter on Human and Peoples’ Rights provides under Article 7 that every individual has the right to defence and to be tried in accordance with the law.
International jurisprudence permits witness anonymity only in exceptional circumstances, and even then, courts must ensure that the rights of the accused are not fundamentally undermined.
A Judiciary Facing a Moment of Institutional Reflection
The legal questions arising from the Besigye–Lutale proceedings therefore extend far beyond the fate of two defendants.
They touch on the institutional credibility of Uganda’s judiciary and the enduring strength of constitutional protections.
If courts allow criminal convictions to rely on undisclosed witnesses without a clear statutory framework, the precedent could have far-reaching consequences for future prosecutions.
Justice, as famously stated in the English case R v Sussex Justices, must not only be done but must also be seen to be done.
Transparency, therefore, is not a luxury of democratic justice—it is one of its essential pillars.
Conclusion
The treason case involving Dr. Besigye and Abeid Lutale presents Uganda’s courts with a profound constitutional challenge.
The judiciary must carefully balance state security concerns with the fundamental rights of the accused, ensuring that the administration of justice remains faithful to the Constitution and the rule of law.
Ultimately, the credibility of the justice system will depend not on the outcome of the case but on whether the process itself upholds the principles of fairness, transparency, rule of law, and legal certainty.
For in a constitutional democracy, the law must always remain stronger than the shadows of secrecy.
About the Writer
Evan Sande Ndahura is a Ugandan political and legal commentator, columnist, poet, and social justice advocate whose writings focus on governance, constitutionalism, democracy, and the political economy of power in Africa. He writes from a Pan-African critical perspective, interrogating the failures of state institutions and the lived realities of ordinary citizens under entrenched systems of power. He believes that the liberation of Africa will occur through a mighty pen, not the gun.
