East African Court summons Uganda over controversial torture ruling

The summons, signed by the court’s Registrar on July 31, states: “You are hereby required to file a response within 45 days of the date of service hereof. In default whereof, the reference will be heard and determined in your absence.”

The case stems from a June 2 decision by Uganda’s Constitutional Court in Faruku Muhamed and Others v Attorney General and Others, in which a panel of five justices unanimously found provisions of Section 11 of the Human Rights (Enforcement) Act inconsistent with the Constitution.

The justices — Oscar Kihika, Margaret Tibulya, Moses Kazibwe, Musa Ssekaana and Asa Mugenyi — held that Section 11(2) made the acquittal of an accused person dependent on the torture claims by the suspect rather than the evidentiary procedure prescribed by the Constitution.

The court consequently found the provision inconsistent with Articles 28(3)(a), (b), (c) and (d) of the Constitution.

The ruling has since triggered concern among lawyers and human rights activists, who argue that its effect could weaken one of the legal safeguards against torture by allowing criminal proceedings to continue even after a court has established that an accused person was subjected to torture or other violations of non-derogable rights.

Dr Livingstone Ssewayana, executive director of the Foundation for Human Rights Initiative, in an earlier interview with this publication, criticised the decision, saying the exclusion of evidence obtained through torture is an important deterrent against abuse by security agencies.

“We disagree with the court decision. The essence of creating the Human Rights Act was to stop torture, and also for the court to have a role in stopping those involved in torture by not using evidence obtained through torture,” Dr Ssewayana said shortly after the ruling was handed down.

He argued that allowing proceedings to continue despite torture findings could encourage perpetrators because the underlying criminal case would not necessarily collapse.

“It’s a reverse of the gains we had made in terms of fighting torture. It gives liberty to perpetrators of torture knowing that even if they torture suspects, their trial will continue,” he said.

Dr Ssewayana further pointed to Article 44 of the Constitution, which protects freedom from torture and other cruel, inhuman or degrading treatment or punishment as a non-derogable right.

ULS takes case to regional court

The Uganda Law Society subsequently challenged the Constitutional Court decision before the regional court based in Arusha, arguing that Uganda, as a member of the East African Community, has obligations under the Treaty establishing the regional bloc to uphold the rule of law and human rights.

The lawyers argue that the effect of the Constitutional Court judgment is that criminal proceedings could proceed to completion even where a court has found that the State violated non-derogable rights during investigations or prosecution.

ULS further argues that the judgment undermines the power of courts to halt proceedings where there has been serious abuse of the judicial process.

“The further effect of the judgment is to strip courts of the inherent power to stay proceedings for abuse of process,” the lawyers argue.

They contend that even where State misconduct is allegedly in bad faith, systemic or egregious, criminal proceedings would still have to run their course.

According to the ULS, this places the completion of trials above judicial integrity and public confidence in the administration of justice.

The lawyers argue that such an approach is incompatible with the rule of law because it could allow State agencies to benefit from violations committed during criminal investigations.

The ULS has based its reference on Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community.

Article 6(d) sets out fundamental principles of the Community, including good governance, democracy, the rule of law, accountability, transparency, social justice and the recognition, promotion and protection of human and peoples’ rights.

Article 7(2) similarly requires Partner States to adhere to principles of good governance, democracy, the rule of law, social justice and universally accepted standards of human rights.

ULS argues that these obligations are binding on Uganda and can be enforced before the regional court.

The lawyers are asking the EACJ to declare that Uganda violated Articles 6(d) and 7(2) of the EAC Treaty by virtue of the Constitutional Court’s June 2 judgment.

They further want the regional court to declare the judgment inconsistent with Uganda’s obligations under the Treaty insofar as it permits criminal proceedings to continue after a finding that an accused person’s non-derogable rights have been violated.

The ULS is also seeking an order directing the Ugandan government to take measures, including legislative or judicial action, to restore effective remedies consistent with the prohibition of torture, good governance and the rule of law.

The case now shifts the controversy from Uganda’s domestic courts to the regional level.