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The (Non) Enforcement of the Right to a Fair Trial with Regard to the Admissibility of Evidence Obtained through Human Rights Violations: A Comment on Uganda's Human Rights (Enforcement) Act 2019

Document Cited in Related
Vincent
Author
Date01 November 2019
DOI10.3366/ajicl.2019.0295
Pages654-661
Published date01 November 2019
INTRODUCTION

The Constitution of the Republic of Uganda 1995 (Constitution) provides for the enforcement of the rights of an individual who has suffered a violation.1 The Human Rights (Enforcement) Act (2019) (hereinafter HREA (2019))2 was enacted under Article 50(4) of the Constitution, to provide a procedural framework for the enforcement of human rights.3 Just like the Constitution, the HREA (2019) is silent on the utility of evidence obtained through human rights violations.4 Furthermore, the nature of remedies that the HREA (2019) provides, such as restitution, rehabilitation, satisfaction or compensation do not speak to the violation of the right to a fair trial in the course of a trial.5

The drafting history of the Constitution shows that the adoption of Article 50 was motivated by the need to enforce human rights by an individual or through public interest litigation.6 The drafters of the Constitution reiterated that the dual role of Article 50 was: first, to guarantee the protection, promotion and enjoyment of human rights;7 and second to ensure that Uganda adhered to its human rights obligations.8 It should be noted, however, that the enforcement of a human right extends from the substantive to the procedural aspects regarding an accused's right to a fair trial. First, this comment contextualises the enforcement of the procedural rights of an accused and the relevant remedies. It shows that the HREA (2019) falls short of offering guidance on the enforcement of the proactive right to a fair trial of an accused during the trial. Secondly, it evaluates the extent to which remedies may be accessed in the course of the trial. This contribution is limited to the enforcement of human rights of the accused before the judgment is delivered. This includes human rights violation during the pre-trial investigation, detention or the trial process that are brought to the attention of the court during the hearing.

As noted earlier, the enactment of the HREA (2019) comes at a time when the Constitution and the national legislation remain silent on the issue of dealing with evidence obtained through human rights violations. This lack of clarity is evident in the decisions handed down by the courts. It is argued that the HREA (2019) does not effectively deal with the enforcement of an accused's right to a fair trial with regard to the evidence obtained through human rights violations. To substantiate this position, an evaluation of the position of the law on evidence obtained through human rights violations before the enactment of the HREA (2019) is conducted. This is followed by an exposition of the challenges in the implementation of the HREA (2019). Finally, proposals and recommendations are offered.

 THE POSITION BEFORE THE HUMAN RIGHTS (ENFORCEMENT) ACT

It is instructive to evaluate the normative and the jurisprudential positions before the enactment of the HREA (2019). The normative position is grounded in the Constitution and selected procedural and substantive legislation.9 This is premised on the argument that an identified human rights violation requires a remedy. With regard to the jurisprudential position, one has to look at the judgments on the admission of evidence obtained through human rights violations. An evaluation of these two positions indicates the challenges in the admission of evidence obtained through human rights violations.

The Normative Position

The Constitution provides for various rights in the Bill of Rights such as: the right to a fair trial,10 the presumption of innocence until proven guilty,11 the right to be informed immediately in a language that the person understands of the nature of the offence12 and the right to be charged in accordance with the law.13 Other rights include the right to privacy,14 the right to personal liberty15 and the right against self-incrimination.16 It does not, however, provide for a constitutional directive on how to deal with the enforcement of human rights in the wake of violations. A person who claims that a right has been or may be infringed may apply on his own or on behalf of others for redress.17 Where one is dissatisfied, (s)he may appeal to a higher court.18 The HREA (2019) is, however, silent on violations that are occasioned to an individual during pre-trial...

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