Following the arrest and remanding of former KCCA Lord Mayor Erias Lukwago over allegations of misprision of treason, legal minds and commentators across Uganda have been debating the issue through different lenses.
The debate has dominated both mainstream and social media channels, saloons, joints, market stalls and in taxis or buses.
On one premium WhatsApp group of journalists where some scribes are also practicing lawyers while others are social workers, theologians and philosophers, the debate has been more intense with each looking at it from his area of expertise.
The debate was sparked by a WhatsApp message that circulated widely in the group of prominent scribes, laying out one advocate’s advice on how lawyers should respond when police ask questions that touch on client secrets.
The Lukwago arrest has particularly puzzled and scared journalists, many whom are now asking whether covering, advising or associating with opposition figures could expose them to Section 25 of the Penal code on misprision of treason.
For context: The WhatsApp message that started the debate.
A message that circulated widely in journalists’ 
WhatsApp groups described an advocate who had been summoned by police over allegations of using forged medical documents to secure bail for a client.
The advocate argued that advocate-client privilege meant he had no duty to disclose anything to police. The advice he received in return was that while privilege protects client communications, it is not absolute and does not allow a lawyer to conceal information about the commission of an offence.
The advisor cited the Constitutional Court decision in Olara Otunnu versus Attorney General, which nullified Section 27A of the Police Act, meaning there is no legal obligation to attend police for questioning.
Still, the advocate was told to state only what he actually knew about the source of the documents, without speculation. After giving that limited statement, his name was reportedly removed from the charge sheet while the person alleged to have forged the documents was charged.
The same message then applied that reasoning to Counsel Elias Lukwago. It argued that if Lukwago had any information that Dr. Kizza Besigye was involved in treasonous acts, regardless of whether Lukwago was his lawyer, colleague or friend, then Section 25 of the Penal Code Act on misprision of treason would apply. That section provides that any person who knows another intends to commit treason but fails to report it promptly to the Attorney General, a magistrate, police officer or administrative officer commits an offence. The writer concluded that the law does not exempt advocates, so until it is changed, all lawyers including Lukwago are liable to be charged under it.
Note: This is a paraphrase of the WhatsApp message provided for context. The allegations contained in it have not been proven in court and are presented here only to help readers understand the flow of the debate.
Prof. Isaac Christopher Lubogo, a constitutional law scholar, has now offered a positioned note testing the tenability of that advisory against Ugandan law. He notes the fear in newsrooms is understandable, but much of the WhatsApp commentary, while technically correct,is legally incomplete.
On the first issue of advocate-client privilege and alleged forged medical documents, Lubogo says the advice is legally sound. Ugandan law recognizes advocate-client privilege under the Evidence Act, which prevents lawyers from disclosing communications made in the course of professional employment unless the client consents. But that protection is not absolute.
The Evidence Act itself provides that privilege does not apply where a communication is made in furtherance of an illegal purpose. This is the crime-fraud exception. It means an advocate cannot use confidentiality to conceal information about the commission of an offence.
The advisory also correctly referenced the 2012 Constitutional Court decision in Olara Otunnu and Others versus Attorney General. In that case the court declared Section 27A of the Police Act unconstitutional for violating the constitutional rights to liberty and to remain silent. The effect is that a police invitation or summons for questioning is not legally mandatory today. Only a court summons or arrest warrant compels attendance.
Lubogo argues that the advice given to the advocate struck the right balance. The lawyer disclosed only what he actually knew about how the documents came to him, stating that he received them from the client’s brother and had no knowledge of how the brother obtained them. That approach avoided the risk of perjury under the Penal Code while not breaching the duty of confidentiality owed to the client.
The reported outcome, where the advocate’s name was later removed from the charge sheet while the alleged forger was prosecuted, reflects the practice of distinguishing between “uttering and creation” and “mere possession” under the forgery provisions of the Penal Code.
The second and more contentious issue concerns misprision of treason under Section 25 of the Penal Code Act. That section states that any person who knows that another person intends to commit treason and fails to report it with reasonable dispatch to the Attorney General, a magistrate, police officer or administrative officer commits an offence punishable by life imprisonment. On the face of the law, the phrase “any person” includes advocates. Counsel Elias Lukwago, like any other citizen, is not expressly exempted.
However, Lubogo warns that stating liability in theory without context is misleading. Section 25 requires proof of actual knowledge that someone intends to commit treason in the future, not merely knowledge of past acts. Political association, friendship, or even a professional retainer relationship does not meet that threshold. The prosecution must prove actual knowledge beyond reasonable doubt, as required by the Constitution and the Evidence Act.
Equally important, confidential communications between advocate and client remain protected under the Evidence Act unless the prosecution can successfully invoke the narrow crime-fraud exception. That exception only applies if the prosecution can show with substantial evidence that the communication itself was made in furtherance of the treasonous purpose. Mere allegations are not enough. Courts have historically construed that exception narrowly to preserve public confidence in the legal system.
Uganda has not yet had a Supreme Court decision that directly reconciles Section 25 of the Penal Code with Sections 125 to 128 of the Evidence Act for lawyers.
Comparable jurisdictions such as the United Kingdom and Canada have wrestled with the same tension between public interest in preventing serious crime and public interest in confidential legal advice. Any Ugandan court faced with such a case would have to conduct a similar balancing exercise.
For Counsel Lukwago’s situation, Lubogo says the critical legal questions are straightforward. Did he have actual knowledge that Dr. Kizza Besigye intended to commit treason going forward, as the law requires? Can the prosecution prove that knowledge beyond reasonable doubt? And are any communications protected by advocate-client privilege unless the crime-fraud exception is established with evidence? Mere representation, friendship or colleague status, he argues, is legally insufficient to establish the mental element for misprision of treason.
The broader public lesson, according to Lubogo, is about the meaning of “absolute” versus “not absolute” rights in law. An absolute right has no exceptions, such as the constitutional prohibition on torture.
A right that is not absolute, like advocate-client privilege, exists but comes with defined legal exceptions. In the same way, the right to silence means a citizen is not required to respond to a police invitation for questioning after the Olara Otunnu ruling. But that right is not absolute where other laws impose a duty, such as Section 25 on misprision of treason or where a court issues a summons.
In short, while the law technically allows an advocate to be charged under Section 25, the practical barriers to conviction are substantial.
Until Parliament amends the law or the courts give a definitive interpretation, advocates like all citizens remain bound by Section 25 in theory, but protected by the Constitution, the Evidence Act and the high burden of proof in practice.
For dispatchers of information/news covering sensitive cases, the lesson is caution, not silence. Journalists and lawyers alike must understand that advocate-client privilege protects confidential communications, but it does not license concealment of ongoing crimes. Section 25 of the Penal Code Act applies to ‘any person’, including lawyers and journalists but proving knowledge and intent remains a high bar.
As the Lukwago case shows, the fear in newsrooms is real but the law demands facts not speculation. Report what you know, avoid guessing and remember: privilege ends where crime begins.
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The nullified S 27 A of the Police Act that was inserted by the Police Amendment Act 2006 was titled, “procurement of Information and Attendance of Witness” which gave police very broad powers. The Constitutional Court nullified it in 2012 in Olara Otunu Vs Attorney General because it violated the right to liberty and the right to remain silent.
Summary of What It Stated.
Power to summon anyone: A police officer not below the rank of assistant inspector of police investigating an offence could, in writing, require the attendance before him/her of any person whom he/she has reason to believe has any knowledge which will assist in the investigation.
Power to demand documents/things: The same officer could require the production of any document, matter or thing relevant to the offence under investigation.
Where attendance could be required: The attendance could be required at the nearest police station or police office situated within the area in which that person resides or, for the time being, is found.
Penalties for non-compliance: Subsections 27A (3) & (4) made it an offence to fail to honor the summons or produce documents. Police could jail or impose monetary fines on a person who refused. Police actually used it to charge journalists and editors.
Why the court struck it out: The Constitutional Court held that forcing people to attend police stations and answer questions on demand clashed with constitutional values of liberty, freedom from self-incrimination, and due process. The court ruled the penalty provisions unconstitutional.
Effect today: Since 2012, a police “invitation” or summons under Section 27A is not legally mandatory. Only a court summons or arrest warrant compels attendance. That’s why lawyers now advise clients they have no legal obligation to respond to police invitations.
Although the police still use other provisions to issue summons. Under Criminal Procedure Act Cap 142, Section 55, police can issue a summons to witness if they are conducting investigations and a magistrate authorizes it. However, this is different from a police invitation because it comes from court.
Under Section 24 of the Police Act, the police still have power to arrest without warrant for cognizable offences if they have reasonable suspicion they do not need to ‘summon’ you first.
Other specific acts: For tax matters Uganda Revenue Authority (URA) uses Tax Procedures Code. For corruption uses Leadership Code Act and for Computer Misuse Act provisions, each Act has its own summons power.
What police actually do now: Because Section 27A is gone, police often send an ‘invitation letter’, anyway hoping you will honor it voluntarily and many people for fear of what happens or out of ignorance still go.
If you do not go and they think you are a suspect, they either arrest you directly under Section 24 Police Act or apply to a magistrate for a court summons/warrant under the Criminal Procedure Code.
It’s the reason lawyers now advise their clients and citizens: “you have no legal obligation to attend police for questioning under Section 27A, but if police arrest you or issues a summons, then attendance becomes mandatory”.
What is a summons? It is a legal document or order from a court that commands a person to appear before it at a specific date time and place. Unlike a police invitation, a court summons is mandatory. If you ignore it without good reason, you commit an offence. Police can then arrest you and bring you to court.
A summons must be in writing, signed by a magistrate, state the offence/why you are needed, date, time and court location. It is usually served on you personally.
Prof. Isaac Christopher Lubogo is a constitutional law scholar and author. This article is for general information and does not constitute legal advice. Individuals facing legal issues should consult a qualified advocate.
