On June 2, the Constitutional Court of Uganda unanimously declared Section 11(2)(a), (b) and (c) of the Human Rights (Enforcement) Act Cap. 12 unconstitutional. The five-judge bench of Oscar Kihika, Margaret Tibulya, Moses Kazibwe Kawumi, Asa Mugenyi and Musa Ssekaana JCC did so in Faruku Muhamed and others versus Attorney General. I doubt that this case is about acquittals; it is about the constitutional meaning of non-derogable rights and how far a constitutional democracy may tolerate institutional misconduct in pursuit of criminal convictions.
The Constitutional Court told the Uganda Police Force, UPDF [Uganda People’s Defence Forces], SFC [Special Forces Command], Uganda Prisons [Service] and other security services that it can be business as usual when they torture Ugandans. A case can basically continue. The confession is excluded, but everything else stands. You face a civil claim, and the State will pay the victim while you keep your job, and you do it (torture) again and again-as it has been anyway, now it has been legalised.
Before, Section 11(2) imposed a mandatory duty on any presiding judicial officer, especially whenever it appeared to the court, was brought to its attention, or the court made a finding, that an accused person’s non-derogable rights had been infringed, the officer was required to declare the trial a nullity and acquit the accused, and the language admitted no discretion. The court noted in paragraph 89 that an ordinary dismissal leaves open the possibility of re-charging. Section 11(2) went further, that nullification and acquittal in the same moment, with no alternative available.
Three advocates brought the petition, arguing that mandatory acquittal denied victims and society a fair hearing under Articles 28 and 44(c) of the Constitution. The Attorney General conceded unconstitutionality, while the intervenors admitted because the Attorney General refused to defend the Act, argued the opposite. My mentor, the indefatigable Prof Christopher Mbazira, participated as amicus curiae.
The court’s central holding appears in paragraphs 128 and 129. Section 11(2) was unduly narrow because it focused on State accountability toward accused persons and ignored what the court called the reciprocal constitutional obligation of accused persons to answer to the law. Accountability is not unidirectional. In paragraphs 99 and 113, the court held that Article 28(1) guarantees a fair hearing to a person, not merely to an accused.
Victims hold compensation rights under Article 126(2)(c) of the Constitution, Section 125(1) of the Trial on Indictments Act and Section 267(4) of the Penal Code, and may bring private prosecutions under Section 42 of the Magistrates Courts Act. The combined effect of Articles 28 and 44, the court stated in Paragraph 114, is a right to fair hearing that is inclusive in scope and absolute in protection.
Anti-torture provisions
The court’s accountability framework is internally coherent. The difficulty is what it does not engage with. The judgment declares in Paragraph 92 that Article 44(c) is a cornerstone of the rule of law and affirms in Paragraph 26 that constitutional history is a relevant guide to interpretation. It then fails to apply that guide to the provision most in need of it. Article 44 did not appear in a vacuum.
The Commission of Inquiry into Violations of Human Rights, whose findings were delivered in October 1994, and the Uganda Constitutional Commission, chaired by Justice Benjamin Odoki, which reported in 1992, documented systematic patterns of torture, arbitrary detention and Executive abuse that directly shaped the 1995 Constitution’s anti-torture provisions.
The amicus raised the aforesaid in Paragraph 57. The court set his brief aside in Paragraph 72, criticising him for lack of neutrality rather than engaging with the substance. This is a serious analytical failure. The court’s own interpretation principles, drawn from David Tusingwire Vs Attorney General [2017] UGCC 11 and from John Livingstone Okello and six others Vs the Attorney General, require examination of a provision’s history and purpose. The court applied that standard to Article 28(1) in favour of victims’ rights, but it did not apply it to Article 44.
International law and comparative jurisprudence speak with one voice on this question, ie, Article 15 of the Convention Against Torture, to which Uganda is a party, requires states to ensure any statement established to have been made as a result of torture shall not be invoked as evidence in any proceedings, whether criminal, civil or administrative.
This is not a procedural technicality. It is a foundational obligation grounded in the principle of judicial integrity: a court that benefits from torture becomes part of the abuse it is meant to condemn. The UN Committee Against Torture has confirmed in General Comment No. 2 that the absolute prohibition on torture is a matter of customary international law, binding on all states regardless of treaty ratification.
No automatic acquittal
Three courts have applied this principle with utmost precision, i.e. in A and others versus Secretary of State for the Home Department [2005] UKHL 71, the UK House of Lords held unanimously in Paragraph 51 that evidence obtained by torture is inadmissible before any English court or tribunal, and that the common law had set its face against such evidence from its earliest days. In Mthembu versus the State [2008] ZASCA 51, the South Africa Supreme Court of Appeal held in Paragraph 31 that admitting torture-induced evidence is tantamount to involving the judicial process in ‘moral defilement,’ that it ‘would compromise the integrity of the judicial process and dishonour the administration of justice,’ and that public interest demands exclusion irrespective of whether the evidence affects the fairness of the trial.
The Mthembu Court explicitly applied CAT Article 15 as operative law. In Gäfgen versus Germany, (paras 166 and 178), the European Court of Human Rights Grand Chamber held on June 1, 2010 that effective protection of individuals from investigation methods that breach the prohibition on torture may require, as a rule, exclusion of all evidence obtained through such a breach, and that modest punishment of offending officers does not function as a sufficient deterrent for future violations.
None of these courts ordered automatic acquittal, all of them treated torture as categorically different from an ordinary procedural defect. The Faruku judgment cites the ICCPR in Paragraph 84 for the equality principle but fails to engage with CAT Article 15, with the Grand Chamber’s deterrence analysis, or with the institutional integrity reasoning in Mthembu, which the Attorney General himself placed before the court in Paragraph 44. That silence is not accidental, it is the judgment’s central weakness.
In Paragraph 134, the court cited Section 41 of the Prevention and Prohibition of Torture Act, which bars evidence obtained through torture. In Paragraph 135, it held that where remaining evidence is insufficient, acquittal follows, but the exclusionary rule does not extinguish accountability where admissible evidence establishes guilt.
The exclusionary rule is a serious remedy. It is not a complete answer to what Article 44 requires. It handles specific items of evidence, but it does not address proceedings where the entire investigation was built on coercion and the torture was systematic rather than incidental.
Diminished legitimacy
When the State uses torture to build a prosecution, the legitimacy of that prosecution is not merely diminished–it is structurally compromised. The court, in Paragraph 149, held that habeas corpus, judicial review and constitutional petitions provide sufficient redress. The consequences extend far beyond the petitioners before the court. For political detainees, the judgment removes one of the few remedies capable of deterring torture by security agencies that routinely view compensation awards as a manageable cost of repression.
For military and security-linked prosecutions, it signals that even where torture is established, the prosecution may survive if alternative evidence can be assembled. For future torture cases, the incentive structure shifts dangerously. Lazy prosecutors who once risked losing an entire case through misconduct now risk only the exclusion of particular evidence, creating a legal environment in which the constitutional prohibition of torture remains absolute in principle but becomes increasingly negotiable in practice.
The court also acknowledged in Paragraph 147 that the abduction of Paul Akamba from court premises on June 14, 2024, his seven-day detention in an ungazetted facility and the coercion applied to him appeared to be a ‘somewhat common occurrence.’ The court looked at a documented pattern of State torture, acknowledged it was common, and then removed the one legal mechanism that was forcing it to stop.
The declaration is precise: Section 11(2) is unconstitutional to the extent that it acquits without a fair hearing on the initial charges. That leaves the operational question open, which the Supreme Court must answer.
The answer requires engagement with Article 44’s constitutional history, with CAT Article 15 and the international law of judicial integrity, with the deterrence function of remedies for torture, and with what remedy makes the prohibition practically effective rather than formally declared. The Constitutional Court affirmed that Article 44(c) is absolute. The Supreme Court must now say what that absoluteness requires in practice, because how can a constitutional court protect torture while condemning it?
The writer is a novelist, playwright and lawyer.