The Constitutional Court has ordered the prosecution of former Permanent Secretary in the Ministry of Trade, Industry and Cooperatives, Geraldine Ssali Busuulwa, after striking down provisions of the Human Rights (Enforcement) Act that allowed accused persons to be acquitted without a full trial.
In its decision, the court declared Section 11(2)(a), (b) and (c) of the Human Rights (Enforcement) Act unconstitutional to the extent that it permits courts to nullify criminal proceedings and acquit accused persons solely because their non-derogable rights were violated during investigations or prosecution, without first hearing and determining the substantive charges against them.
The ruling will have far-reaching implications for several ongoing criminal cases, including the high-profile corruption case involving Ssali, whose lawyers had sought to rely on the contested legal provisions to challenge the proceedings against her.
The Constitutional Court held that while the protection of fundamental rights remains a cornerstone of Uganda’s justice system, violations of those rights cannot automatically result in an acquittal before the charges are heard and determined.
“The provision admits no judicial discretion and thereby supplants the constitutional requirement that acquittal follow a full adjudication of charges,” the justices ruled.
The court emphasized that criminal proceedings must strike a balance between safeguarding the rights of accused persons and ensuring accountability through lawful judicial processes.
In the judgment, the court further held that the right to a fair hearing under Article 28(1) of the Constitution is not reserved exclusively for accused persons but also extends to victims of crime and society at large.
“The right to a fair hearing applies to ‘a person’ and therefore extends to victims of crime,” the court stated, adding that victims have both substantive and procedural interests in criminal proceedings, including the right to seek compensation and access justice.
The judges found that the impugned provisions denied victims an opportunity to be heard by prematurely terminating criminal cases and granting acquittals without determining whether the accused committed the offences in question.
According to the court, such an approach undermines Article 20 of the Constitution, which guarantees equality and access to rights, and Article 44(c), which makes the right to a fair hearing non-derogable.
“The constitutional balance requires protection of non-derogable rights while preserving the accused’s accountability to lawful processes and victims’ access to justice,” the court observed.
The petitioners had argued that Section 11(2) effectively allowed courts to acquit suspects without trial, thereby frustrating victims’ rights and undermining the constitutional presumption of innocence, which requires evidence to be tested in a court of law before guilt or innocence is determined.
On the other hand, defenders of the law had maintained that the provision was intended to provide effective remedies where serious violations of constitutional rights had occurred during criminal proceedings.
However, the Constitutional Court distinguished previous decisions where prosecutions had been halted because of extreme and exceptional violations of fair trial rights, noting that those cases were fact-specific and could not justify a blanket statutory rule requiring acquittal.
“The right to a fair hearing under Article 44(c) is non-derogable, but remedies for violations of that right must not extinguish the rights of victims or negate the constitutional requirement for a fair trial on the original charges,” the judgment noted.
As part of its orders, the court declared the disputed provisions unconstitutional, affirmed that victims’ rights to a fair hearing must be protected in all criminal proceedings, and directed that courts and tribunals ensure victims are afforded the procedural safeguards necessary to vindicate those rights.
Each party was ordered to bear its own costs.
The ruling will influence the handling of future criminal cases by limiting the circumstances under which courts can terminate prosecutions before trial and reinforcing the principle that allegations of criminal wrongdoing must ordinarily be determined through a full hearing on their merits.
