Constitutional Court strips tortured suspects of automatic acquittal

When the state violates the rights of a person accused of a crime, especially through torture, how should the justice system respond? Should courts dismiss the entire case immediately, or should victims of the alleged crime still have a right to be heard?

Parliament passed the Human Rights (Enforcement) Act to address Uganda’s history of state brutality and human rights violations. The Act introduced Section 11(2), which required judges to take a strict approach: if an accused person suffered torture or was denied a fair trial, the judge had to stop the trial and release them immediately. The aim was to enforce the Constitution’s absolute ban on torture, prevent security agencies from abusing the justice system, and ensure the state follows the law.

This, however, became the explosive question at the heart of Faruku Muhamed, Musinguzi John, and Bunyasin Ibrahim v Attorney General and Others (Constitutional Petition No. 17 of 2024 consolidated with Constitutional Reference No. 2 of 2024). The Constitutional Court opted to strike a delicate balance between punishing state misconduct and ensuring victims of crime are not denied justice.

1. Who were the key players behind the case? 

Before diving into the arguments, it helps to understand who brought this battle to court, those who opposed and the judges who decided the matter. 

The Bench (Coram)

The case was heard and decided by a panel of five Justices of the Constitutional Court:

1. Hon. Justice Oscar Kihika
2. Hon. Justice Dr. Margaret Tibulya
3. Hon. Justice Moses Kazibwe Kawumi
4. Hon. Justice Dr. Asa Mugenyi
5. Hon. Justice Hon. Musa Ssekaana

The Petitioners

The case against the law was sparked by three Advocates of the High Court of Uganda: Faruku Muhamed, Musinguzi John, and Bunyasin Ibrahim. They filed Constitutional Petition No. 17 of 2024.

The Intervenors

Normally, the Attorney General defends government laws. However, in a surprising twist, the Attorney General agreed with the lawyers(petitioners)  and refused to defend the contested law. Because of this, the Court allowed a group led by lawyer Sekanjako Abubakar and 21 others to join the case as “intervenors.” 

2. What was the core dispute? 

The case centered on Section 11(2) of the Human Rights (Enforcement) Act. This provision states that if a court found that an accused person’s absolute, “non-derogable” rights (rights that can never be taken away or limited, such as the freedom from torture or the right to a fair trial) were violated by security agencies, the judge had to immediately cancel the trial and acquit the accused person.

 

The Petitioners’ Side: The three advocates and the Attorney General argued that this provision in the Act was unconstitutional. They stated that throwing a case out automatically, without ever listening to the evidence, let suspected criminals off the hook on a technicality and completely denied crime victims their day in court.

The Intervenors’ Side: Sekanjako Abubakar and the 21 other citizens maintained that this harsh rule was a vital and necessary check on state actors. They argued it was the only way to hold the state accountable for carrying out illegal investigations and prosecutions characterised by torture.

3. So, what exactly are “non-derogable rights”?

Under Article 44 of the Constitution, these are absolute human rights. They cannot be turned off, watered down, or ignored by the government, even during a war, a national pandemic, or a state of emergency. They include:

• Freedom from torture, cruel, inhuman, or degrading treatment.
• The right to a fair hearing.
• The right to habeas corpus (the right to be brought before a court to determine if your detention is lawful).

Because these rights are so sacred,  the Human Rights (Enforcement) Act tried to protect them by using “automatic acquittal” as the ultimate punishment against the state when it misbehaves.

4. How did the Court redefine the right to a fair hearing, and what role did it give to crime victims in criminal trials?

The five Justices clarified the scope of Article 28(1), which guarantees the right to a fair hearing. Courts had traditionally understood this right as protecting only the accused person in a criminal trial.  The Court corrected this interpretation and held that the Constitution refers to “a person,” not specifically “an accused person,” meaning crime victims also hold constitutional rights to a fair hearing.

Under this view, victims often initiate criminal proceedings and provide key evidence. They have a direct interest in seeing justice served, securing compensation, and obtaining closure. The Court held that automatically releasing a suspect without examining the evidence can undermine the victim’s constitutional right to justice.

5. Why did the Court strike down the law? 

The Court declared Section 11(2) unconstitutional because it created an “evaluative shortcut” that failed the constitutional test. The Justices held that the Constitution requires judges to examine, weigh, and assess evidence before reaching a verdict. A court cannot issue an acquittal without first conducting a proper legal evaluation.

They found that Section 11(2) tied judges’ hands and forced them to release suspects automatically. This prevented courts from considering the severity of the alleged crime, such as murder or terrorism, against the gravity of the torture claims.

The Court further reasoned that the provision protected the accused by undermining the rights of crime victims. It held that if someone commits a crime, they have a duty to face trial. While the state must face consequences for torture, a suspect should not receive a “free pass” for alleged crimes because of unlawful conduct by the state.

What about the Kizza Besigye case?

The Court relied on the 2007 case of Kizza Besigye & Others v Attorney General  to draw a key distinction in its reasoning. In that case, Dr Besigye and his co-accused were facing severe charges, including treason and terrorism. But every single time the High Court granted them bail, armed state agents violently re-arrested them on the spot and threw them back in cells. The breaking point came on March 1, 2007, when armed forces literally laid siege to the High Court for six hours. Blood was spilled right on the courthouse grounds. Judges and court staff were trapped inside, terrified, while outside, prisoners who had just been legally released on bail were brutally beaten and tossed into the back of military trucks “like sacks of potatoes.”

After months of this systematic torture and lawlessness, the Court threw up its hands and stopped the trials entirely. They ruled that because the state had completely shattered the rule of law and desecrated the courts, a fair trial had become completely impossible. Continuing would just be an abuse of the system.

The intervenors pointed heavily to this Besigye case, where the court stopped a trial because of state overreach. However, the Court explained that the Besigye case was completely different. That case involved an extreme, highly unusual, and “constitutionally shocking” event where armed forces literally laid siege to the High Court. The Court clarified that Besigye was an extraordinary remedy for an extraordinary crisis, it was never meant to be a daily, automatic rule for every criminal case where a rights violation occurs.

6. What does this mean for torture victims?

If an accused person is tortured by security forces today, their legal strategy changes completely. The Court’s decision has shifted how courts respond when an accused person alleges torture during investigation. The system no longer allows automatic dismissal of charges based on claims of mistreatment alone.

The accused will no longer receive an automatic acquittal or instant dismissal simply because of alleged mistreatment. They must still stand trial and answer the charges in court.

7. Is there any reprieve available? 

The main safeguard now lies in Section 41 of the Prevention and Prohibition of Torture Act. Courts exclude any confession, statement, or information obtained through torture. They treat such evidence as illegal and bar it from use during trial.

The court conducts a “trial-within-a-trial” to separate tainted evidence from lawful evidence. If the prosecution presents other evidence obtained legally, the case proceeds on that basis alone. If the remaining evidence is weak, the court may acquit the accused, but only after a full trial and evaluation of all admissible evidence.

The law separates criminal responsibility from state misconduct. The accused must still face trial for the alleged crime. At the same time, they can sue the state or Attorney General in a civil court for torture and seek compensation.

Agora’s View

At Agora, we believe the Constitutional Court’s decision to strike down Section 11(2) is a massive step backward for human rights in Uganda. While the five Justices framed their ruling as a way to create “balance” between suspects and crime victims, this decision severely weakens the absolute ban on torture. We stand firmly with the citizens who stepped in to defend the law, and we believe this judgment creates four dangerous traps for our justice system:

1. Rights of suspects are being erased

The Court has rewritten the rules by claiming that crime victims have a right to a “fair trial.” Yet the right to a fair hearing was explicitly designed to protect the accused person from the overwhelming power of the state. By shifting the focus to the victim, the Court has transformed a safeguard against state abuse into a justification for allowing prosecutions to proceed, even when state brutality tainted the proceedings. In doing so, the Court has used the victim’s suffering to legitimise trials that may have been built on violations of fundamental rights. 

2. You cannot “balance” torture

The Court has treated torture like a minor procedural mistake that it can remedy simply by excluding a coerced confession. We reject that approach. When the government violates its own most fundamental laws by torturing a citizen, it forfeits the moral authority to demand that citizen’s obedience to the law. Torture should not merely lead courts to exclude a piece of evidence; it should bar the state from prosecuting the case altogether.

3. The “how bad was the torture?” trap

By directing judges to use the Kizza Besigye case as the benchmark for what constitutes “shocking” state conduct, the Court has created a dangerous guessing game. Rather than applying a clear and uncompromising rule that rejects all torture, the Court now requires judges to make subjective judgments about whether the abuse inflicted on a suspect was severe enough to justify halting a trial or whether it falls short of that threshold. This approach risks normalising certain forms of torture by treating them as insufficiently serious to warrant meaningful consequences for the state. 

4. Rewarding lazy and brutal policing

If the only consequence for a rogue security officer who tortures a suspect is that a judge excludes the confession, the state has little incentive to change its conduct. This approach signals to investigators that they can continue using violence with near impunity, provided they can still assemble enough “other” evidence to sustain the prosecution.