As the world prepares to mark the International Day in Support of Victims of Torture on June 26, the Uganda Law Society (ULS) registers its profound condemnation of the Constitutional Court’s judgment in Faruku Muhamed & Others v Attorney General, Constitutional Petition No. 17 of 2024 and Constitutional Reference No. 2 of 2024, delivered this morning.
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.
It undermines core constitutional, regional, and international safeguards against torture and other gross violations. The exclusionary rule in Section 11(2), which mandates automatic nullification of proceedings and acquittal where an accused person’s non-derogable rights are breached, is not a mere procedural technicality. It is a foundational epistemic safeguard.
Evidence or proceedings tainted by torture are inherently unreliable. Coerced confessions distort truth- seeking and poison the administration of justice. Courts worldwide, and Uganda’s own Prohibition and Prevention of Torture Act, 2012 (Section 14), recognise that reliability cannot be salvaged from coercion.
The Faruku judgment risks legitimising Uganda’s well-documented record of torture instead of eradicating it. The Court invoked concerns about “victims” of crime and societal interest in prosecution to justify diluting these protections.
This reasoning is profoundly misguided. Torture is never a legitimate investigative tool. Excusing it by allowing tainted proceedings to continue creates a dangerous moral hazard: security agencies, aware that violations may not lead to automatic nullification, face reduced deterrence and are incentivised to resort to coercion.
This fosters impunity, wrongful convictions, eroded public trust, and cycles of grievance, the very opposite of protecting victims or society. This ruling prioritises completion of criminal trials over the absolute prohibition of torture-tainted processes.
It is therefore fundamentally flawed, internally inconsistent, and incompatible with Uganda’s legal obligations.
Internal Inconsistencies and Disregard for Constitutional and International Provisions
The judgment suffers from glaring internal contradictions. While purporting to uphold the sanctity of non-derogable rights under Article 44 of the Constitution (which prohibits any limitation on freedom from torture), it renders those protections practically meaningless by striking down automatic nullification.
This creates a regime where violations can be “cured” simply by proceeding with a tainted trial, a position that directly contradicts the supremacy of the Constitution (Article 2) and the non- derogable character of these rights.
RULING DISREGARDS MULTIPLE BINDING FRAMEWORKS
• Constitution of Uganda: Articles 24, 28, 44, 45 and 50, which entrench protections against torture and guarantee fair trials free from coerced evidence.
• Treaty for the Establishment of the East African Community: Articles 6(d) and 7(2), on upholding human rights and the rule of law.
• International Covenant on Civil and Political Rights (ICCPR): Articles 7 and 14; UN Human Rights Committee General Comment No. 20 and jurisprudence prohibiting torture-derived evidence and requiring effective remedies.
• African Charter on Human and Peoples’ Rights: Article 5 and African Commission jurisprudence emphasising absolute prohibition and victim redress.
• Convention Against Torture (CAT): Article 15, which explicitly bars the use of statements obtained by torture as evidence. UN Special Rapporteur reports on torture consistently stress the duty to exclude tainted evidence and proceedings.
Way Forward
The ULS urges all stakeholders, including judges, legal practitioners, civil society, and the international community, to reject this precedent and reaffirm the absolute prohibition on torture-derived processes. The Radical New Bar Governing Council has resolved to pursue the following remedies:
• Locally: Establish a special committee to coordinate an appeal to the Supreme court by Paul Akamba and other parties; seek continuation of Section 11(2) pending appeal; organise a nationwide lawyers’ strike on 26 June to raise public awareness; intensify public interest litigation, training on exclusionary rules, and systematic documentation of violations.
• Regionally: Approach the East African Court of Justice for interpretation and redress under the EAC Treaty.
• Internationally: Engage the African Commission on Human and Peoples’ Rights, UN Human Rights Committee, Special Rapporteur on Torture, and other mechanisms through urgent communications, shadow reporting, and individual complaints where domestic remedies are exhausted.
Seek advisory opinions highlighting Uganda’s non-compliance with its international obligations. The Uganda Law Society reaffirms its unwavering commitment to the rule of law, judicial integrity, and the fundamental rights of all Ugandans.
We stand ready to support affected parties and will not relent in our advocacy for a justice system worthy of our Constitution.
The author is president, Uganda Law Society.