Torture in Uganda: From ‘never again’ to ‘maybe, sometimes’ to ‘what will you do?’ Part 2

In last week’s column we started an examination of Uganda’s journey towards prohibiting torture – in law and in fact.

We noted that the State itself had been born out of the trauma of torture (alongside many other crimes against humanity), itself an inevitable feature of the establishment and maintenance of British colonial rule.

We suggested that it was perhaps unsurprising, given this unfortunate foundation, that the prohibition of torture was neither seriously reflected in law (including in successive Constitutions) nor in practice.

Ugandans would thus go through decades of suffering, in which human rights (including the rights to life, and the freedom from torture), were more honoured in their breach than their observance. It is partly this difficult history – especially the horrific accounts of the torture suffered by Ugandans (at the hands of fellow Ugandans) from 1962 to 1986, recorded by the Commission of Inquiry into Violations of Human Rights in Uganda (CIVHR), which partly informed the strong prohibition against torture contained in the 1995 Constitution.

Aside from providing an unqualified right to freedom from torture and other cruel, inhuman and degrading treatment or punishment under Article 24 (a break from the problematic formulations contained in Section 21 of the 1962 and 1966 Constitutions, and Section 12 of the 1967 one), the Constitution also unmistakably singled out torture as a non-derogable right under Article 44 (alongside the right to a fair trial, the right to an order of habeas corpus, and the freedom from slavery).

In addition, and very importantly, the Constitution expressly recognized that individuals were just as potentially culpable as the State itself in the violation of human rights, and placed an obligation, under Article 20 (2), on all persons (not just the State) to respect and protect human rights.

These elaborate guarantees, embedded the design and structure of the 1995 Constitution were intended to ensure that never again should torture be countenanced in Uganda. We noted that it is this same solemn understanding which would inform progressive judicial and quasi-judicial pronouncements (including decisions of the Uganda Human Rights Commission Tribunal) as well as legislative developments (particularly the 2012 Prevention and Prohibition of Torture Act of 2012 – ‘the PPTA’, and the 2019 Human Rights Enforcement Act of 2019 – ‘the HREA’).

Indeed, Uganda not only fulfilled its international legal obligations regarding the prohibition of torture, it arguably adopted an even more robust posture, including through defining torture to include the actions and omissions of private persons; ensuring personal liability for public officials implicated in torture and requiring the nullification of criminal proceedings in which the non-derogable rights of accused persons (including the freedom from torture) were found to have been violated.

Unfortunately, as we observed, the commitment to ‘never again’ slowly morphed into ‘maybe, sometimes’ as various public officials (at all levels) trivialized and, in some cases, even justified torture.

To this cauldron has most recently been added an even more poisonous element – the impunity represented by the President’s son, General Muhoozi Kainerugaba. At the height of his self-confessed supervision of the torture of Eddie Mutwe, an aide to Hon Robert Kyagulanyi (Bobi Wine) General Kainerugaba essentially asked of all Ugandans: ‘What will you do?’ It is a challenge to which Uganda’s legal and political community is yet to effectively respond.

It heralds a new depth for human rights violations in Uganda, one in which torture is no longer whispered about but live-tweeted, as if it were some kind of macabre entertainment. We have moved from Idi Amin’s infamous dungeons of Nakasero and elsewhere, to the notion of a ‘basement’ in which non-compliant Ugandans are taken to be ‘taught Runyankore’.

Most ironically (given the symbolism of the day – the UN international day in support of torture survivors), on the morning of 26th June 2025, General Kainerugaba threatened to torture a Ugandan citizen, Mr Timothy Kalyegira, for the ‘crime’ of exercising his freedom of expression. At 5.00am he posted on X (formerly Twitter): ‘Has the IMBECILE, Kalyegira said anything about me lately? A one Sebunya (who handle is @SSssebunya), quickly replied in the affirmative, quote Tweeting a post by Mr. Kalyegira referencing the CDF, apparently from a day ago.

In response, the CDF said: ‘He is begging for it! And he will get it.’ He then added: ‘Let’s see how strong he will be by the time I’m through with him.’ If this is not the actualization – the very personification – of impunity, it is difficult to see what is. What enables such impunity?

There can only be one answer: the current (and historical) political context of Uganda. Only a person comfortable in the knowledge that he is above the law (including the Constitution) and above all institutions, would so brazenly boast about, and threaten, the humiliation of a fellow citizen.

However, equally critical, are those Ugandans who – out of greed or fear – or both, support, and even encourage, this impunity. For instance, in response to the dark Tweets of 26th June, were such statements as: ‘He wants to visit your basement’ (per @SSssebunya); ‘He is joking with the mighty soldier of God’ (per @Acholimoding); ‘Discipline him’ (per @ Kipropvicent); ‘In fact, he should get it afande’ (per @niwegariho61476) and this gem – ‘You squeeze his balls’ (per @AkelloJM).

Regrettably, these developments in the political sphere have been accompanied by similarly problematic positions adopted in the legal community. In the first place, Courts have taken some troubling positions, particularly regarding proof of torture.

In the 2016 case of Kenneth Agaba v Attorney General and 3 Others, for instance, the High Court observed: ‘… the courts should apply a very strict test when considering whether there has been a breach of an individual’s right to freedom from torture or inhuman or degrading treatment.

Only worst examples are likely to satisfy the test.’ Similarly, in the 2017 case of Godfrey Mbowa v Attorney General, the High Court observed: ‘… Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure…’. These judicial pronouncements establish what appears to be an unreasonably high threshold for the determination of torture – one which is not only not in keeping with the letter and spirit, not to mention history, of Articles 24 and 44 (which, in any case, also provide for a broader category of ‘cruel, inhuman or degrading treatment or punishment’) but would also inevitably have the effect of making it difficult to petitioners and applicants to obtain redress for violations against them.

There has been some important judicial pushback in this regard. Perhaps predictably, this has come from the best Chief Justice Uganda never had, Justice Egonda-Ntende who in his lead judgment in the 2021 case of Paul Wanyoto Mugoya v Sgt Joshua Oumo and Attorney General observed: ‘The requirement for medical evidence to prove torture has no legal basis. It should be noted that it is rare to have direct evidence of torture because of the nature of the crime. Most of the torture cases are carried out in secret while the victim is in detention making it difficult to obtain a medical report.’

In these troubling times for human rights (especially torture and, increasingly also, enforced disappearances) it is critical that courts adopt more of the stance demonstrated in Paul Wanyoto and less of the restrictive approach adopted in Agaba and Mbowa.

In another troubling development, Section 11 (2) of the HREA (on the nullification of criminal proceedings in which the non-derogable rights of accused persons have been violated) has come under significant criticism, including by the Attorney General, Director of Public Prosecution and, even the Chairperson of the Uganda Human Rights Commission.

[See the views expressed in – NTV ‘Attorney General not satisfied with provisions of the law on torture’ available at https://www.youtube. com/watch?v=vIZ8ykvTLso]

There is, coincidentally, now also challenge to this section before the Constitutional Court of Uganda [See Faruk Muhamed, John Musinguzi and Ibrahim Bunyasin v Attorney General, Constitutional Petition No.17 of 2024, consolidated with Paul Akamba v Attorney General, Constitutional Reference No.2 of 2024].

Of course, it is open to question whether, given the above professed position, the office of the Attorney General is in position to properly defend the rationale and importance of this important deterrence against torture.

Mercifully, the Constitutional Court admitted, as Amicus Curiae, Professor Christopher Mbazira – who has since filed a brief to the Court, indicating the history and significance of Section 11 (2).

Hopefully, the Constitutional Court appreciates the critical issues at stake in this matter, and supports the ‘never again’ position rather than the ‘maybe, sometimes’ one represented by the petition.

Indeed, this is one opportunity the Court can take to – at least partly – respond to General Kainerugaba’s ‘What will you do?’ challenge. Unfortunately, by all indications, much darker days are ahead of us. The coming days, weeks and maybe even years will call for uncommon courage and resilience.

We must summon the courage, love and humanity of such martyrs (religious and, especially secular) – as Janani Luwum and Benedicto Kiwanuka – who stared evil in the face, and sacrificed their lives for the ideal of a Uganda free of needless suffering. If torture is meant to summon the ‘darker demons of our nature’ the only lasting response to it must be an intentional invocation of ‘the better angels of our nature’.

In this regard I thank, once again, the Coalition Against Torture in Uganda – headed by the African Centre for Treatment and Rehabilitation of Torture Victims (ACTV), and which includes Chapter Four Uganda, UHRC, Foundation for Human Rights Initiative (FHRI), the Refugee Law Project (RLP) and the National Coalition of Human Rights Defenders in Uganda (NCHRD-U) – for continuing to remind us of the ‘never again’ commitment represented by Articles 24 and 44 of the 1995 Constitution, and related legislative enactments.

The writer is senior 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.