Human rights defenders and legal experts have criticised a recent Constitutional Court ruling that struck down provisions of the Human Rights (Enforcement) Act, saying the decision weakens safeguards against torture and could embolden security agencies to violate suspects’ rights.
In a unanimous decision delivered last week, a panel comprising Justices Oscar Kihika, Margaret Tibulya, Moses Kawumi Kazibwe (Deputy Chief Justice designate), Musa Ssekaana and Asa Mugenyi declared Section 11(2) of the Human Rights (Enforcement) Act unconstitutional.
The impugned provision allowed courts to nullify criminal proceedings and acquit accused persons where their non-derogable rights, including freedom from torture, had been violated by state security actors.
“In light of the foregoing, we are persuaded that Section 11(2) of the Act is inconsistent with, and therefore contravenes Articles 28(3)(a), (b), (c) and (d) of the Constitution,” the justices ruled.
The court held that acquittal should not automatically result from allegations of rights violations but should instead be based on a structured evidentiary inquiry consistent with constitutional requirements.
But the judgment has since sparked strong reactions from rights advocates, who argue that it removes one of the strongest deterrents against torture during criminal investigations.
Dr Livingstone Ssewayana, the executive director of the Foundation for Human Rights Initiative (FHRI), said the judgment undermines efforts to combat torture.
“We disagree with the court decision. The essence of creating the Human Rights Act was to stop torture and to ensure courts do not rely on evidence obtained through torture. Accepting evidence procured through torture is more of granting a licence to perpetrators,” Dr Ssewayana said at the weekend.
Adding, “It reverses the gains we had made in fighting torture. It gives liberty to perpetrators knowing that even if they torture suspects, their trial will still continue.”
Dr Ssewayana noted that freedom from torture is protected under Article 44 of the Constitution as a non-derogable right.
The Uganda Law Society (ULS) also criticised the ruling, describing it as a setback in the protection of fundamental rights.
“The Court’s declaration that Section 11(2) of the Human Rights (Enforcement) Act, 2019 is unconstitutional represents a regrettable retreat from the protection of non-derogable rights,” the lawyers’ body said in a statement signed off by its president, Isaac Ssemakadde, read in part.
“It undermines core constitutional, regional and international safeguards against torture and other gross violations,” it added.
The ULS argued that the ruling prioritises the completion of criminal trials over the absolute prohibition of torture and other rights violations.
Constitutional lawyer Erias Lukwago said the judgment had weakened an important constitutional safeguard.
“With this decision, our constitutional jurisprudence has been watered down. Those rights are non-derogable. This is now a licence for the State to torture citizens with impunity,” Mr Lukwago said.
Counsel Jude Byamukama, one of the lawyers involved in the proceedings, expressed hope that the Supreme Court would overturn the decision on appeal.
“We hope the Supreme Court will overturn it. It is not only about torture but also about non-derogable rights and a fair hearing. The law created a provision that if there is no fair hearing, the charges are dismissed. That principle exists in many jurisdictions that value the protection of citizens’ rights like USA, UK, and even Kenya here,” he said.
Human rights lawyer Nicholas Opiyo also faulted the ruling, saying it rolled back progress made in enforcing the prohibition against torture.
“Respectfully, the Justices of the Constitutional Court got it absolutely wrong, and I hope the appellate court will correct the misapplication and misinterpretation of the law,” Mr Opiyo said.
“The protection of an accused person’s rights is the cornerstone of the criminal justice system because of the disproportionate power of the State during investigations and prosecutions,” he added.
Mr Opiyo argued that balancing the rights of complainants against those of accused persons in such circumstances risks favouring the State and legitimising abusive investigative methods.
The Constitutional Reference arose from proceedings involving Paul Akamba, a co-accused person in corruption-related cases before the High Court.
Akamba alleged that after being granted bail in one criminal case, he was abducted by security agents from court premises, detained incommunicado for seven days in an ungazetted facility, tortured, and pressured to confess to criminal charges.
He subsequently filed an application seeking dismissal of criminal proceedings against him under the Human Rights (Enforcement) Act on grounds that his non-derogable rights had been violated.
During the hearing of the application, lawyers representing the Attorney General challenged the constitutionality of Sections 7, 8 and 11(2) of the Act, arguing that they allowed accused persons to be acquitted without a trial, thereby denying victims and society the opportunity to have criminal allegations adjudicated by a court.
The Attorney General argued that while the Constitution requires protection of human rights, remedies for violations should be proportionate and should not automatically terminate criminal proceedings.
The Constitutional Court agreed with that position, holding that the impugned provisions were inconsistent with the constitutional framework governing fair hearing rights.
The ruling is expected to be appealed to the Supreme Court, where a final determination could have significant implications for the enforcement of non-derogable rights and the conduct of criminal prosecutions in Uganda.