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Faruku Muhamed and Others v Attorney General and Others (Constitutional Petition No. 17 of 2024; Constitutional Reference No. 2 of 2024)

Constitutional Court · [2026] UGCC 7 · 2026 Petition Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition and constitutional reference consolidated for hearing on common constitutional questions regarding the constitutionality of provisions of the Human Rights (Enforcement) Act
Decision
Petition and reference allowed; Section 11(2)(a), (b) and (c) of the Human Rights (Enforcement) Act declared unconstitutional

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Holding

The Constitutional Court declared Section 11(2)(a), (b) and (c) of the Human Rights (Enforcement) Act unconstitutional. The Court held that the provision, which mandates automatic acquittal of an accused upon a finding that their non-derogable rights were violated, contravenes Articles 20, 21, 28 and 44(c) of the Constitution. The provision denies victims of crime their right to a fair hearing, undermines the principle of equality before the law, and permits acquittal without trial, thereby negating the constitutional requirement that guilt be determined through a full evidentiary process. The Court affirmed that the right to a fair hearing under Article 28(1) extends to all persons, including victims of crime, not solely to accused persons.

Facts

The petitioners, three advocates, challenged the constitutionality of Section 11(2)(a), (b) and (c) of the Human Rights (Enforcement) Act, which mandates automatic acquittal of an accused person upon a finding that their non-derogable rights were violated. The petition was consolidated with a constitutional reference arising from criminal proceedings in which the respondent, Akamba Paul, alleged he was abducted from court premises after being granted bail, detained incommunicado for seven days, and tortured by security agents. He applied under the Act to have the charges dismissed. The Attorney General objected to the remedies in Sections 7, 8 and 11(2) of the Act, contending they were unconstitutional. The High Court referred constitutional questions to the Constitutional Court. Intervenors opposed the petition, arguing the provisions were necessary checks on state actors conducting illegal prosecutions. An amicus curiae was joined to address the historical context of human rights violations in Uganda.

Issues

  1. Whether the petition is properly before the Court?
  2. Whether Section 11(2)(a), (b) and (c) of the Fundamental Human Rights (Enforcement) Act Cap. 12, contravenes Articles 1, 2, 20, 28(1), (3)(a), (3)(b), 28(3)(c), 28(3)(d), and (12), 44(c), 128 and 126 of the Constitution of the Republic of Uganda?
  3. Whether the Petitioners are entitled to any relief?
  4. Whether the provisions of Sections 7, 8 and 11(2) of the Human Rights (Enforcement) Act Cap. 12 which mandate a trial court to nullify a trial and acquit an accused without taking evidence in a trial violates the right to a fair hearing in Article 28 of the Constitution?
  5. Whether a victim of crime or society has a right to a fair hearing in Article 28 of the Constitution?

Orders

  • Section 11(2)(a), (b) and (c) of the Human Rights (Enforcement) Act is unconstitutional, in as far as the said provisions allow to acquit an accused person based on the findings of the offence of violation of non-derogable right without a fair hearing and trial in respect to initial offences brought in the criminal proceeding.
  • Victims' right to a fair hearing under Article 20 of the Constitution—though not expressly listed in Chapter Four—is preserved by Article 45 and must be protected and considered in all trials. Courts and trial tribunals should therefore ensure that victims are afforded the procedural safeguards necessary to vindicate that right.
  • Each party shall bear its own costs, as this is a constitutional matter.

Key headnotes

Constitutional Interpretation — Principles — Harmony, Completeness and Purposive Interpretation
The entire Constitution must be read together as an integral whole with no particular provision destroying the other but each sustaining the other. This is the rule of harmony, the rule of completeness and exhaustiveness. A constitutional provision containing a fundamental human right is a permanent provision intended to cater for all times to come and therefore should be given dynamic, progressive, liberal and flexible interpretation keeping in view the ideals of the people, their social, economic and political cultural values so as to extend the benefit of the same to the maximum possible.
Right to Fair Hearing — Scope — Victims of Crime
The right to a fair hearing under Article 28(1) of the Constitution applies to 'a person' and not exclusively to an accused. The entitlement to a fair hearing extends to all persons whose rights or interests are affected by the outcome of a criminal charge, including victims of crime. Victims are key stakeholders in criminal proceedings through their roles in initiating private prosecutions, providing evidence, participating in plea bargaining, and claiming compensation, restitution or damages.
Non-Derogable Rights — Right to Fair Hearing — Absolute Protection
Article 44(c) of the Constitution affords absolute protection to the right to a fair hearing, rendering it an absolute right that cannot be suspended, limited, or taken away by the State under any circumstances, including during a state of emergency, war, or internal unrest. The phrase 'notwithstanding anything in this Constitution' means that this protection overrides any other constitutional provision, including Article 43, that might otherwise permit the limitation of human rights in the public interest.
Acquittal — Constitutional Requirements — Trial Before Acquittal
The Constitution requires that an acquittal may only ensue upon the conclusion of a trial in which the court has received, scrutinised, and evaluated the evidence, and thereafter determined that the prosecution has not discharged its burden of proving the charge beyond reasonable doubt. This procedural sequence is not a matter of judicial discretion but a constitutional imperative flowing directly from the fair-hearing guarantees enshrined in Article 28(3)(b), (c) and (d) of the Constitution.
Equality Before the Law — Equal Protection — Victims and Accused
Article 21(1) of the Constitution establishes that all persons are equal before and under the law and shall enjoy equal protection of the law. Equal protection necessarily entails equal access to justice. To deny any person the right to be heard would inherently violate Article 21(1), as it would imply that some individuals or groups are more entitled to legal recourse than others. A statutory provision that subordinates the rights of victims to those of accused persons disturbs the constitutional equilibrium and undermines the principle of equality before the law.
Accountability — Accused Persons — Constitutional Framework
Accountability of an accused person denotes the obligation of an individual to answer for alleged conduct within the established framework of justice, while ensuring that this obligation is balanced against the full protection of their fundamental rights. Accountability encompasses answerability before the law, presumption of innocence, right to a fair hearing, freedom from self-incrimination, and transparency and oversight. Accountability is not unidirectional; it encompasses both the duty of the State to respect and uphold the rights of accused persons, and the corresponding obligation of those accused to submit to lawful processes designed to ascertain the truth of allegations against them.
Unconstitutionality — Automatic Acquittal Provisions — Denial of Fair Hearing to Victims
Section 11(2)(a), (b) and (c) of the Human Rights (Enforcement) Act, which mandates automatic acquittal of an accused person upon a finding that their non-derogable rights were violated, is unconstitutional. The provision operates in a manner that results in the acquittal of an accused person at the expense of the victim of the alleged offence, thereby curtailing the victim's right to be heard in the criminal process. The provision contravenes Articles 20, 21, 28 and 44(c) of the Constitution by denying victims access to justice, undermining equality before the law, and permitting acquittal without trial.

Legislation cited (60)

  • Constitution of the Republic of Uganda 1995 Article 1
  • Constitution of the Republic of Uganda 1995 Article 2
  • Constitution of the Republic of Uganda 1995 Article 8A
  • Constitution of the Republic of Uganda 1995 Article 20
  • Constitution of the Republic of Uganda 1995 Article 21(1)
  • Constitution of the Republic of Uganda 1995 Article 23(2)
  • Constitution of the Republic of Uganda 1995 Article 23(3)
  • Constitution of the Republic of Uganda 1995 Article 23(4)
  • Constitution of the Republic of Uganda 1995 Article 27(1)
  • Constitution of the Republic of Uganda 1995 Article 28
  • Constitution of the Republic of Uganda 1995 Article 28(1)
  • Constitution of the Republic of Uganda 1995 Article 28(2)(b)
  • Constitution of the Republic of Uganda 1995 Article 28(2)(c)
  • Constitution of the Republic of Uganda 1995 Article 28(2)(d)
  • Constitution of the Republic of Uganda 1995 Article 28(3)(a)
  • Constitution of the Republic of Uganda 1995 Article 28(3)(b)
  • Constitution of the Republic of Uganda 1995 Article 28(3)(c)
  • Constitution of the Republic of Uganda 1995 Article 28(3)(d)
  • Constitution of the Republic of Uganda 1995 Article 28(11)
  • Constitution of the Republic of Uganda 1995 Article 28(12)
  • Constitution of the Republic of Uganda 1995 Article 42
  • Constitution of the Republic of Uganda 1995 Article 43
  • Constitution of the Republic of Uganda 1995 Article 44
  • Constitution of the Republic of Uganda 1995 Article 44(c)
  • Constitution of the Republic of Uganda 1995 Article 45
  • Constitution of the Republic of Uganda 1995 Article 50
  • Constitution of the Republic of Uganda 1995 Article 50(4)
  • Constitution of the Republic of Uganda 1995 Article 52(1)(d)
  • Constitution of the Republic of Uganda 1995 Article 79
  • Constitution of the Republic of Uganda 1995 Article 94(4)
  • Constitution of the Republic of Uganda 1995 Article 119
  • Constitution of the Republic of Uganda 1995 Article 119(4)
  • Constitution of the Republic of Uganda 1995 Article 119(4)(c)
  • Constitution of the Republic of Uganda 1995 Article 126(2)(c)
  • Constitution of the Republic of Uganda 1995 Article 137(1)
  • Constitution of the Republic of Uganda 1995 Article 137(3)(a)
  • Human Rights (Enforcement) Act Cap. 12 s.4
  • Human Rights (Enforcement) Act Cap. 12 s.5
  • Human Rights (Enforcement) Act Cap. 12 s.6
  • Human Rights (Enforcement) Act Cap. 12 s.7
  • Human Rights (Enforcement) Act Cap. 12 s.8
  • Human Rights (Enforcement) Act Cap. 12 s.11(1)
  • Human Rights (Enforcement) Act Cap. 12 s.11(2)
  • Human Rights (Enforcement) Act Cap. 12 s.11(2)(a)
  • Human Rights (Enforcement) Act Cap. 12 s.11(2)(b)
  • Human Rights (Enforcement) Act Cap. 12 s.11(2)(c)
  • Human Rights (Enforcement) Act Cap. 12 s.11(6)
  • Human Rights (Enforcement) Act Cap. 12 s.17
  • Constitutional Court (Petitions and References) Rules S.I. 91 of 2005
  • Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules S.I. No. 55 of 2008
  • Prevention and Prohibition of Torture Act Cap. 130 s.41
  • Prevention of Trafficking in Persons Act Cap. 131
  • Prohibition of Female Genital Mutilation Act Cap. 133
  • Anti-Corruption Act Cap. 116 s.5
  • Trial on Indictments Act s.125(1)
  • Penal Code Act s.257(4)
  • Magistrates Courts Act s.42
  • Magistrates Courts Act s.196(1)
  • Prisons Act 2005 s.57
  • International Covenant on Civil and Political Rights Article 14(1)

Cases cited (19)

  • David Tusingwire v Attorney General [2017] UGCC 1-1
  • Rtd Dr. Col. Kiiza Besigye v Y. K. Museveni (Presidential Election Petition No. 2 of 2005)
  • Attorney General v Silvation Abuki (Constitutional Appeal No. 1988)
  • P. R. Ssemwogerere and Another v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General of Tanzania v Rev Christopher Mtikila (2010) EA 13
  • Okello John Livingstone and 5 others v The Attorney General and Another (Constitutional Petition No. 1 of 2005)
  • South Dakota v. South Carolina 192, USA 268. 1940
  • Attorney General v Major David Tinyefunza (Constitutional Appeal No. 1 of 1997)
  • CEHURD and another v Attorney General (Constitutional Petition No. 64 of 2021)
  • Sam Kuteesa and 2 others v Attorney General (Constitutional Petition No. 46 of 2011)
  • Zahira Habibula H. Shiekh and another v State of Gujarat and others, Appeal (crl.) 446-449 of 2004
  • Paras Yadav and others v State of Bihar (1999) 2 SCC
  • Attorney General & 2 Others v David Ndii & 79 Others (Petitions Nos. 11, 12 and 13 of 2021)
  • Mthembu v S (2008) AHRLR 223
  • Kizza Besigye v Yoweri Museveni & Another (Presidential Petition No. 1 of 2006)
  • Andrew Kibayo v Uganda (Constitutional Reference No. 28 of 2010)
  • Kizza Besigye & others v Attorney General (Constitutional Petition No. 7 of 2007)
  • Bukenya Church Ambrose v Attorney General (Constitutional Petition No. 26 of 2010)
  • Attorney General v Uganda Law Society (supra)
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