In 2016, Yorokamu Bamwine, then the Principal Judge, had a clear message to Uganda’s security agencies that the Judiciary wasn’t going to stomach the idea of torturing suspects.
Justice Bamwine, who was interacting with prisoners in Kiboga prisons, told the police that the law is very clear: everybody arrested is taken as a suspect, until the court proves him or her guilty.
‘Why should you torture the suspect?” he asked.
In 2018, one year before he hung up his wig, Justice Bamwine turned up the volume, warning that the judges weren’t going to accept suspects who are presented to court after being tortured.
‘I want to give the people of Uganda hope that whenever in any criminal proceeding it appears to a judge or magistrate or it is brought to their attention that the suspect was tortured, the judges will declare the trial a nullity,’ Mr Bamwine said during the 2018 launch of the Uganda Human Rights Commission report.
Yet in 2025, Masaka Grade One Magistrate Abdallah Kayizza allowed a visibly tortured Edward Sebuufu, the bodyguard of Opposition leader, Robert Kyagulanyi Ssentamu, alias Bobi Wine, to be charged with aggravated robbery.
This came days after Gen Muhoozi Kainerugaba, the Chief of Defence Forces (CDF) of the Uganda People’s Defence Forces (UPDF), bragged on social media that he had not only detained Mr Sebuufu but also tortured him as he taught him ‘Runyankore’.
To make matters worse, the Constitutional Court last week annulled provisions of the Human Rights (Enforcement) Act that allowed courts to automatically acquit accused persons once their rights had been violated.
In the judgment that has shocked the legal fraternity, a panel of five judges, including Oscar Kihika, Margaret Tibulya, Moses Kazibwe Kawumi, Asa Mugenyi and Musa Ssekaana, declared Section 11(2)(a), (b) and (c) of the Act unconstitutional.
The section says whenever, in any criminal proceedings, it appears to the judge or magistrate presiding over a trial that any of the accused person’s non-derogable rights and freedoms have been infringed upon, the judge or magistrate presiding over the trial shall declare the trial a nullity and acquit the accused person.
The section adds that criminal proceedings may be instituted against a person who breaches a non-derogable right or freedom guaranteed under the Constitution, even where an action for protection or enforcement of such a right or freedom has not been instituted.
The Justices unanimously held that the provisions contravened Articles 20, 21, 28 and 44 of the Constitution by upsetting the balance between the rights of accused persons and those of victims.
They agreed that allegations of torture and other human rights violations must be addressed, the judges ruled that such violations do not automatically extinguish criminal responsibility.
Yet to some legal experts, the judgment didn’t come as a surprise since some members of the panel have gained notoriety for ruling against individual rights.
For instance, before he was promoted to the Constitutional Court, Justice Ssekaana, who was heading the High Court’s Civil Division, dismissed the case in which two boda boda riders-Ronald Muhereza and Micheal Nyesiga-accused the top police brass, as it were then, including Gen Kale Kayihura, James Ruhweza, Andrew Kaggwa, Samuel Bamuzibire, Geoffrey Kaheebwa, Aaron Baguma, Jonathan Baroza, and Dan Tandeka Rwabwere, of torturing them.
The plaintiffs alleged that on July 13, 2016, as they were ferrying passengers on Entebbe Road, they were both suddenly, violently, angrily, arbitrarily, and wantonly attacked by policemen.
They further alleged that they were beaten for following Dr Kizza Besigye to the Forum for Democratic Change (FDC) headquarters in Najjanankumbi on the same Entebbe Road.
In his ruling, Justice Ssekaana said while there were articles in newspapers showing how innocent civilians were clobbered by police while they were watching Dr Besigye, what Muhereza and Nyesiga presented as evidence wasn’t enough.
‘The plaintiffs [Nyesiga and Muhereza] had a duty to specifically prove to this court that they were victims of the reported police brutality. The trial court has a duty to consider the totality of the evidence led by each of the parties. It should then put it on an imaginary scale of justice to see which of the two sides weighs more credibility than the other. Evaluation of evidence by trial court should necessarily involve a reasoned belief of the evidence of the other or a reasoned preference of one version to the other,’ Justice Ssekaana ruled, adding that evaluation of evidence does not stop with assessing the credibility of the witnesses but it extends to a consideration of the totality of the evidence adduced on an issue to determine whether the totality supports a particular finding of fact.
In dismissing the case, Justice Ssekaana said although some of the police officers listed as respondents had been found culpable of wrongful actions against civilians, it did not mean that Muhereza and Nyesiga were automatically part of the victims.
‘They ought to have led evidence to show that they were personally victims of the alleged police brutality. The plaintiff’s cause of action appears to have been based on the [Daily] Monitor newspaper, and no corroborating evidence was presented in this court,’ Justice Ssekaana ruled.
Another ruling
Justice Ssekaana similarly dismissed a human rights enforcement application filed by Dr Charles Lagu, Mathias Wakulira, and Yasinta Nabukenya, in which they accused security operatives, whom they said were acting on the direction of Edith Nakalema, then the head of the State House Anti-Corruption Unit, of using abusive and degrading language.
They said State operatives referred to them as thieves and corrupt people during the process of interrogation, without allowing them to give their side of the story.
This, they opined, was a violation of their rights to a fair hearing and freedom from inhuman and degrading treatment.
They went on to accuse Col Nakalema of illegally constituting herself into a tribunal, conducting an illegal trial and determining the same against them in their offices in the presence of the press. This, they contended, was a violation of their rights to dignity, privacy, and a fair hearing.
In dismissing the case, Justice Ssekaana said as one of the basic human rights, the right of privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others.
‘Right of privacy is subject to such action as may be lawfully taken for protection of rights of others; that the level of privacy protection depends on the context. The right to privacy, in any event, will necessarily have to go through a process of case-by-case development. If the scope of right to privacy is widened beyond limits, it may interfere with the governance of the State or other persons’ constitutional rights. Rights are protected and enjoyed by reasonable people who are law abiding and do not refuse to obey the sanction of the law and respect the rule of law when sanctioned by authority,’ Justice Ssekaana said, adding that the search conducted by the State operatives was justified and was made in accordance with the law and, therefore, there was no violation of the applicants’ right to privacy as they had argued.
No-fault divorces
Another judge on the panel who was accused of ruling against individual rights is Justice Kazibwe, who is now the Deputy Chief Justice. Justice Kazibwe was part of the majority of justices who upheld ‘fault-based’ divorce.
In the ruling, he and his fellow justices rejected unilateral ‘no-fault’ divorces, which means couples must continue to prove specific grounds for divorce, and warned that making divorce too easy could lead to ‘social disorder’.
The petitioners, who included human rights lawyer Nicholas Opiyo and Makerere University law don Kabumba Busingye, had argued that divorce under Section 4 of the Divorce Act did not reflect the current realities of marriage in Uganda today, as it unnecessarily places obstacles in divorce proceedings, making proceedings confrontational and giving little room for mediation or privacy of the litigants.
Justice Kazibwe and the majority panel found that allowing a reasonless, unilateral divorce contradicts the historical foundation of marriage.
‘It is also trite to State that marriages bring together families and communities, which become united by virtue of the voluntary decisions made by the parties to it. Family settings with both parents further enhance the proper upbringing of children and enable proper propagation of the requisite cultures and values to them by both parents. Religious institutions that prepare parties intending to take the vows equally have a deep interest in the success and not the failure of marriages.’