Torture in Uganda: From ‘never again’ to ‘maybe, sometimes’ to ‘what will you do?’

Last week, on Thursday 26th June 2025, Uganda joined the rest of the world in commemorating the UN International Day in support of torture survivors.

I was immensely privileged to be invited by the Coalition Against Torture in Uganda (CAT), chaired by the African Centre for Treatment and Rehabilitation of Torture Victims (ACTV) [and which includes such critical members as Chapter Four Uganda, the Uganda Human Rights Commission (UHRC), Foundation for Human Rights Initiative (FHRI), the Refugee Law Project (RLP) and the National Coalition of Human Rights Defenders in Uganda (NCHRD-U)] to deliver a keynote address at a public dialogue they convened on that day.

In this column, I reprise some of the reflections I shared on that occasion. It seems to me that to understand torture in Uganda today, we must recall the role it played in the creation of the State itself. The imposition and maintenance of colonialism in the entity now called Uganda, as it was in other parts of the world, was an act of violence.

The peoples now united as ‘Ugandans’ did not enter into this political unit willingly – it took extreme violence (including war crimes and crimes against humanity, such as torture) – to effect this. Indeed, throughout the period of British colonial rule in Uganda, the rights of Africans in the Protectorate were never set out in any robust legal format.

In the framing of Mamdani (the elder), the African ‘native’ was a subject (suffering only obligations) rather than a citizen (enjoying rights in addition to obligations) [See, generally, Mahmood Mamdani (1996) Citizen and subject: Contemporary Africa and the legacy of late colonialism (Princeton: Princeton University Press)].

It was perhaps unsurprising that the absence of strong protection of human rights in colonial Uganda would be followed by lukewarm safeguards in the post-independence era.

Thus, although Section 21 (1) of the 1962 Constitution provided that no person could be subjected to torture or to inhuman or degrading punish or treatment, this was severely qualified by Section 21 (2), which was to the effect that ‘nothing contained in or done under the authority of any law [could] be held to be inconsistent with or in contravention of [that] section to the extent that the law in question authorize[d] the infliction of any description of punishment that was lawful in Uganda immediately before 9th October 1962’.

Essentially, this subordinated the constitutional right to existing law – which would invariably be problematic given its foundation in the violence of the colonial experience (allowing, for instance, for the continued application of such inhumane practices as corporal punishment).

This problematic formulation would be replicated in the 1966 and 1967 Constitutions (Sections 21 and 12, respectively). The 1995 Constitution heralded a new era for the protection of human rights in Uganda. Among other things, the prohibition of torture (under Article 24) was not qualified.

In addition, in terms of Article 44, the freedom from torture was specially articulated as a non-derogable right (alongside the right to a fair trial, to an order of habeas corpus, and the freedom from slavery). In fact, in the period following the adoption of the 1995 Constitution, Ugandan tribunals demonstrated a willingness to go further – in safeguarding the freedom against torture – than what the prevailing international law might have envisaged, a trend in which the jurisprudence of the UHRC played an important part.

In the 1999 matter of Fred Tumuramye v Gerald Bwete and 10 Others, for example, the Tribunal examined the definition of torture under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and observed: ‘A definition that conveys the meaning that torture or cruelty in law can only be committed by government or its agent would be very restrictive and ignores the fact that acts of torture, inhumane and degrading treatment or punishment are always practiced by individuals, groups or organisations that have nothing to do with government.

“Mob justice” can be torturous, cruel and inhuman. Certain types of family violence are acts that can inflict severe pain and suffering as a form of punishment or a way of obtaining information.’ [See also, to the same effect, the UHRC Tribunal decisions in Emojong Silver Friday v Peter Katongole and Emmanuel Mpondi v Chairman Board of Governors and 2 Others).

Indeed, it is this wider, and more progressive, approach – consistent with the spirit of both Articles 24 and 20 (2) – which found its way into the Prevention and Prohibition of Torture Act of 2012 (‘the PPTA’) (whose Section 2 (1) defines torture to include actions, and omissions, by private persons).

Another important post-1995 development would be the Human Rights Enforcement Act of 2019 (the HREA). Among other things, it introduced two major developments: i) personal liability for public officers engaging in human rights violations (Section 10); and ii) the requirement to nullify criminal trials in which it was evident that any of the accused person’s non-derogable rights had been violated (Section 11).

This positive trend was buttressed by certain affirmative judicial pronouncements, which underscored the importance of the prohibition against torture. In the 2016 case of Kenneth Agaba v Attorney General and 3 Others, for instance, the High Court observed that freedom from torture was ‘one of the most universally recognized rights’, that torture was ‘considered so barbaric and incompatible with civilized society that it [could] not be tolerated’ and further that torturers were ‘seen as the “enemy of mankind”’.

Similarly, in the 2020 matter of Musa Nsereko v Attorney General and 15 Others, the High Court asserted that torture was ‘never acceptable under any circumstances’, that there was ‘no justification for it whatsoever’ and that it was ‘strictly forbidden in any form.’

Also noteworthy was the Constitutional Court decision in the 2000 matter of Simon Kyamanywa v Attorney General (finding corporal punishment unconstitutional, as a form of torture) and in the 1998 case of Salvatori Abuki v Attorney General (finding a banishment order involving the loss of livelihood to constitute cruel, inhumane and degrading treatment) [See, contra, the decision in the 2006 case of Susan Kigula and 417 Others v Attorney General which inexplicably failed to find the death penalty inconsistent with Article 24].

Unfortunately, in spite of the important developments above, there have been equally important regressions in Uganda’s fight against torture – arising from a mismatch between political (and judicial) will, on the one hand, and the law in the books, on the other.

A good example in this regard was provided by the late Senior Advisor to the President, Mr John Nagenda, who is quoted as having said: ‘It is a fact that however well-intentioned you are, to run a country you are going to have ‘safe houses’.

You are going to have so many things that happen. Maybe you do not experience them, maybe I hardly… notice them, but some people have to do the dirty work to keep you safe…’ [See Olive Kobusingye (2010) The correct line 29 (abridged version)].

These remarks were particularly troubling given that Mr. Nagenda had been one of the members of the Commission of Inquiry into Violations of Human rights, established in May 1986, to enquire into human rights violations from 1962-1986.

The harrowing accounts of torture heard, and documented, by that Commission, partly informed the strong language stipulated in Article 24 of the 1995 Constitution. That such an individual would, instead of proclaiming ‘never again’ – be reduced to suggesting ‘maybe, sometimes’ in relation to torture, points to the real challenges the country faces in eradicating this scourge from our land.

Note may also be taken of a communication, dated 15th May 2017, from President Yoweri Museveni, addressed to the Chief of Defence Forces, the Inspector General of Police and the Director General of Intelligence Services.

It was simply titled ‘Concerning Torture’. In it, the President argued that torture – as used to ‘extract confessions’ – had ‘three possible mistakes’ which could even prove counterproductive in the fight against crime: i) an innocent person might be tortured; ii) a person might admit guilt, while innocent, in order to avoid suffering – enabling the actual guilty party to escape; iii) there were other ways of establishing facts, including finger prints, photos, DNA tests, eye witnesses and so on [at page 3 of the document].

He concluded by observing that, on account of these ‘possible mistakes’, the resort to torture was ‘unnecessary and wrong’. While, on the face of it, this letter appears somewhat positive as a policy stance against torture – it is, in fact, troubling in a number of respects.

First, it adopts an instrumentalist posture – in which the arguments against torture are not essentially grounded in the inherent worth and dignity of the human body, but rather on torture’s (in)efficacy as a means of obtaining confessions in the context of criminal proceedings.

In this regard, it actually leaves open the use of torture for other purposes – such as challenging or intimidating political opponents. Secondly, and related to the foregoing, at no point in the communication does the President reference relevant Ugandan legal standards, including the constitutional prohibition under Article 24.

Finally, the letter uses very flippant language to address what is a deeply egregious affront to human dignity: ‘mistakes’ (page 3); ‘unfair’ (page 3); ‘wrong’ (page 3); ‘defective short cuts’ (page 4).

Indeed, it is little surprise that the author of this communication – the President – was also heard to argue, publicly, following the torture of Hon. Robert Kyagulanyi (otherwise known as Bobi Wine) by security forces, that he had been ‘beaten properly in a good way’.

More recently, these developments have taken an even darker turn, with the President’s son and current Chief of Defence Forces, General Muhoozi Kainerugaba, openly announcing the illegal detention and inhumane and degrading treatment of Eddie Mutwe (a close confidant and bodyguard of Hon. Robert Kyagulanyi).

General Kainerugaba felt confident in sharing a picture of Eddie Mutwe via X, with his trademark beard having been forcefully shaved – which he accompanied with the commentary that he was in his (Kainerugaba’s) ‘basement’, ‘learning Runyankore’.

The clear and dangerous ethnicization of torture aside (which merits an entire discussion of its own), a perilous dimension of this new form of ‘live-tweeted torture’ is the impunity it represents.

Indeed, at the height of his Twitter comments communicating that Eddie Mutwe was in his custody and being humiliated, General Muhoozi essentially posed a challenge to Uganda’s political community at large asking: ‘What will you do?’ This, really, is the most critical question facing Uganda’s legal and political community today, in the face of an apparent move to ‘normalize’ torture as a means of political repression.

In next week’s column, we shall conclude these reflections by examining some of the ways in which our politico-legal community has not only failed to answer this question – but is increasingly proving complicit in undermining decades of work done to prohibit torture in Uganda.

The writer is asenior lecturer and director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.