Medical evidence, witnesses not required to prove torture – Court of Appeal.

Updated by Faith Barbara Namagembe at 1837 EAT on Friday 15th July 2022.

The Court of Appeal has ruled that torture victims have no legal basis and requirement to produce medical evidence.

The three-member panel comprising justices Fredrick Egonda-Ntende, Muzamiru Mutangula Kibeedi, and Christopher Gashirabake notes that it is rare to have direct evidence of torture since most torture cases are carried out in secret, which makes it difficult for victims to obtain a medical report. 

The judgment arises from a successful appeal filed by city lawyer; Paul Wanyoto Mugoya against police sergeant, Joshua Oumo, and the attorney general. Wanyoto lodged the appeal challenging the failure by the Anti-Corruption court judge Lawrence Gidudu to dismiss a money laundering case against him together with his co-accused, Patrick Mugisha alias Allan Kantu on grounds that they had failed to prove they’d been tortured.

In his appeal, Wanyoto asked court to declare that the conduct and actions of the investigating officer, sergeant Oumo to torture Mugisha infringed on his nonderogable rights and freedoms from torture, inhuman and degrading treatment guaranteed under the constitution. 

Court heard that Oumo inserted sticks tied with a rubber band between Mugisha’s fingers commonly known as baibbuli and coerced him to hand over his certificate of title and land comprised in Busiro Block 312 plot 841 land at Kalambi, which was eventually sold to Wanyoto. 

This was reportedly part of the conditions imposed on Mugisha who had spent 30 days at the Central police station in Kampala to regain his freedom. As such, his land was sold at a lower value, and part of the proceeds was handed to him on top of torture in the custody. 

In their ruling, the justices noted that there is no legal basis for medical evidence to prove torture and expressed disagreement with the manner in which the High court judge handled this matter. 

Quoting one of the cases determined by the High court of Kenya in 1996, the justices noted that they found this attractive because it addresses the difficulties that suspects have in bringing forth the usual evidential material expected of them in trials. 

“When one is arrested and tortured mercilessly. Where is the opportunity to take photographs of the torturers, get medical reports to show the injuries inflicted and where is the opportunity to call eye-witnesses?” asked justice Egonda-Ntende.

He also relied on a March 4, 2014, special report on torture and other cruel, inhuman, or degrading treatment or punishment which stated that “In this context, it is necessary to have due regard for the special difficulties in proving allegations of torture, which is often practised in secret, by experienced interrogators who are skilled at ensuring that no visible signs are left on the victim. In addition, all too frequently those who are charged with ensuring that torture or other ill-treatment does not occur are complicit in its concealment.”

According to the justices, the unjustified and prolonged detention of Mugisha beyond the constitutionally mandated time before being formally charged strengthens his case that he was tortured. They said it’s the duty of courts of law to enforce fundamental human rights and freedoms under the constitution and the Human Rights Enforcement Act of 2019.

“The law does not permit competent courts to turn a blind eye to the actions of respondent number one/Oumo which amounted to a violation of the appellant’s right to a fair hearing. The law compels us to hasten to protect people’s fundamental rights and freedoms and has provided various remedies including nullifying any prosecution that violates the nonderogable rights of a person,” said Egonda-Ntende.

Accordingly, the Court of Appeal said the learned trial judge ought to have discontinued the charges against Wanyoto on that basis. The court went ahead to declare that the actions of Oumo violated, contravened, and infringed upon Mugisha’s nonderogable rights and freedoms from torture, cruel, inhuman, and degrading treatment guaranteed under the constitution.

The court also declared that the process leading to the initiation of criminal charges against Wanyoto for acquiring property from Mugisha alias Kantu without knowing that he had been tortured by Oumo before reaching a decision to dispose off the property, violated the applicant’s freedom of liberty, to just and fair treatment. The court nullified the Anti-corruption court trial of the two, and directed the registrar to give a copy of their decision to the DPP to exercise her functions enshrined in the constitution.    


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