From Kityo to Muhoozi: Who defines what is legal in Uganda?

Then President Idi Amin Dada

In the darkest years of Idi Amin’s military rule, when the abduction and subsequent murder of Chief Justice Benedicto Kiwanuka had sent a chilling message through the Judiciary and legal fraternity, a Ugandan chief magistrate stood in court and refused to treat an executive instruction as the source of law.

Kiwanuka had been dragged from his chambers at the High court in September 1972 by agents of the Amin regime and was never seen again. The message to the Judiciary was unmistakable: challenging executive power could carry the ultimate price.

It was against this frightening background that chief magistrate Wilson Kityo demonstrated extraordinary judicial courage. Amin had issued a directive against women wearing miniskirts, mini-shorts or dresses with high slits.

When a prosecutor told Kityo that “orders from on high” required offenders to be imprisoned without the option of a fine, Kityo refused. According to former Chief Justice Samuel Wako Wambuzi’s memoir, The Odyssey of a Judicial Career in Precarious Times, Kityo said the instruction remained “idle talk” until a law was made to that effect.

Under the existing law, the court retained discretion to impose a fine. An executive instruction, however powerful its author, could not extinguish that statutory discretion. He imposed the fine.

What makes the episode remarkable is that Kityo was not even a High court judge. He was a chief magistrate. Yet, at a moment when his chief justice had been abducted and murdered, this subordinate judicial officer effectively said: show me the law.

Amin was furious. Attorney General Godfrey Lule told Chief Justice Wambuzi that the President wanted Kityo dismissed, prevented from practising law and placed under surveillance. Wambuzi instead sought an audience with Amin at Makindye Presidential Lodge.

He explained the separation of powers and told Amin that if he wanted mandatory imprisonment, he had to make a law. Wambuzi also challenged the arbitrary detention of Makerere academics, insisting that investigation and evidence should precede arrest.

Remarkably, Amin never again raised “Judge Kityo and his idle talk” with Wambuzi. Wambuzi later reflected that the episode had gone a considerable distance towards asserting judicial independence even under military government.

The significance of this episode extends far beyond the miniskirt controversy. It raises a question fundamental to every constitutional order:

Who decides what the law is?

A recent declaration by General Muhoozi Kainerugaba, Uganda’s serving Chief of Defence Forces and son of President Yoweri Museveni, has given this question particular relevance. In an open letter carried by The Observer, I joined other Ugandans in calling upon Gen Muhoozi to constitutionalise his bid for State House by resigning or retiring from the military.

In apparent response to this and perhaps general criticism of his political conduct, Muhoozi stated:

“Apart from Mzee Museveni and Afande Saleh, I am the biggest defender of Constitutionalism. I was fighting and defending Uganda from Joseph Kony in Teso and Lango in 2003 – 2004 when most lawyers today were still kids. I will define what is legal and what is not.”

Gen Muhoozi Kainerugaba

For the record, I am considerably older than Gen Muhoozi and have practised law since 1990. But that is beside the point. The question is not who is older or more experienced, but who, under the Constitution, has authority to determine what is legal.

The last sentence therefore deserves particular attention.

“I will define what is legal and what is not” is more than another contribution to Uganda’s heated political debate. Coming from the serving head of the armed forces, it raises a fundamental constitutional question: can an individual office-holder claim personal authority to determine the boundaries of legality?

In a constitutional state, that authority does not belong personally to a president, general, minister or prospective presidential successor. Legal authority derives from the Constitution and laws made under it, while disputes about their meaning are determined through the institutions established under the constitutional order, the courts.

The declaration does not stand entirely alone. Muhoozi has previously been summoned in connection with controversial public statements and political conduct. In January 2025, a parliamentary committee demanded that he appear over his social-media pronouncements.

He did not appear at that meeting and made disparaging remarks about members of Parliament; the state minister for Defence apologised on his behalf and said he would attend a subsequent engagement, which he never did.

More seriously, while Dr Kizza Besigye’s legal proceedings were continuing, Muhoozi publicly declared that Besigye would be hanged on Heroes’ Day. The statement was subsequently raised in court proceedings concerning the effect of the CDF’s pronouncements on Besigye’s right to a fair judicial process.

The point here is not to compile a catalogue of controversial tweets. It is to ask whether these episodes reveal an underlying conception of public authority: that the power of the office-holder may prevail over the authority of the institution.

This is where the issue transcends Muhoozi himself. There is a clear precedent for treating a commander’s public declarations as matters of institutional consequence. In 2022, after Muhoozi—then Commander of Land Forces—tweeted that it would take him and his army two weeks to capture Nairobi and made comments about Kenya’s presidential election, President Museveni publicly apologised to Kenya.

He reminded public officers, “be they civilian or military,” that they should not interfere in the internal affairs of another country. Muhoozi was subsequently removed from the Land Forces command, although he was simultaneously promoted to full General.

If statements by a serving commander concerning a neighbouring country required a presidential apology and institutional action, what institutional response should follow when that same commander declares, within Uganda, that he personally will define what is legal and what is not?

Uganda has also historically subjected the political conduct of serving officers to military consequences. In 2005, Brigadier Henry Tumukunde faced General Court Martial proceedings following unauthorised public statements and radio appearances while serving in the UPDF.

The statutory framework remains equally clear today: Article 208(2) mandates a non-partisan army subordinate to civilian authority; Section 16 of the Political Parties and Organisations Act restricts serving officers from engaging in political activities; and Section 99 of the UPDF Act requires a serving officer seeking political office to resign or retire in accordance with the law.

Defenders may invoke “Movement residualism”—the historical conception of the military as an instrument of political mobilisation. That history may help explain aspects of Uganda’s political culture.

It cannot, however, amend the Constitution or repeal an Act of Parliament. The oath of office requires its holder to uphold the Constitution and the law as they are—not as personally perceived by individual office-holders.

This leads us back to Kityo. Kityo did not challenge Amin because he possessed greater power. He did not invoke military experience or patriotic credentials. His position was simpler:

Show me the law.

And Wambuzi backed him. That history gives particular force to a question posed by Justice Frederick Egonda-Ntende at his retirement from the Judiciary in May this year. Reflecting on the prolonged pre-trial detention of a father who was unable to bury his deceased wife with their children, Egonda-Ntende asked:

“Team Judiciary, where are your Kityos and Wambuzis at this hour?”

It was a challenge to the present Judiciary. Kityo stood firm when the head of his institution had already been abducted and murdered. Wambuzi confronted the military ruler himself to defend the boundary between executive power and judicial authority.

So where are the judicial officers prepared, when necessary, to say: show me the law?

Ugandan institutions have not been entirely silent about Muhoozi’s conduct. Parliament, the courts and the Uganda Law Society have at different times confronted particular aspects of his public conduct or its consequences.

But why has a statement going directly to the heart of constitutional government—an assertion that a serving military commander will personally determine what is legal and what is not—not generated a correspondingly emphatic defence of the constitutional allocation of legal authority?

Does that muted response tell us something about the growing reluctance of institutions to confront power?

The contrast with the Amin era is striking. A chief magistrate, serving under a military ruler who had demonstrated that even the chief justice was not safe, insisted that presidential instructions were not law. A chief justice then confronted the President directly to defend judicial authority.

Uganda today has what Amin’s Uganda did not possess: a written Constitution designed to prevent arbitrary government, an elected parliament, independent courts and a formal architecture of rights and institutional checks.

But constitutionalism is not secured merely because institutions exist on paper. It depends upon public officials accepting the limits placed upon their offices—and upon institutions and citizens defending those limits when they are challenged.

When personal authority becomes a substitute for legal authority, constitutional restraint becomes contingent upon the will of the person exercising power.

That is the precursor to personal arbitrary rule.

Uganda’s succession debate should therefore go beyond who may occupy State House in the future. It should include the constitutional rules by which political power is acquired and exercised.

Kityo’s answer in the 1970s was remarkably simple: an instruction unsupported by law was “idle talk.”

That lesson remains relevant today. No commander, no executive and no prospective successor can stand above the legal order. In a constitutional Uganda, determining legality belongs to the Constitution and the institutions created under it—not to the soldier.

The writer is a senior advocate of the High court of Uganda, former member of parliament and former minister.

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