When Declarations Are Not Enough: The Constitutional Court's Missed Remedial Moment In Bonafacio

The sage community of the Baganda have a saying about a guest who offered only roast meat and nothing more. It speaks to a limited offering of hospitality, a missed opportunity and a disappointment to the guest. It evokes a similar disappointment as when reading the Constitutional Court's decision in Bonafacio Mulugga v Attorney General.

That judgment is a sobering study in remedial insufficiency and marks a stark departure from the Court's more exacting and proactive remedial posture in Kazinda v Attorney General. Remedies from the Constitutional Court are the hinge on which constitutional guarantees turn from aspiration into living protection. When the Court confines itself to declarations in the face of structural and individualised violations, it risks transforming rights into rhetoric. In Kazinda, the Court refused to do so; in Bonafacio, it did, and that divergence burdens victims, fragments enforcement and weakens constitutional supremacy.

Background

In Bonafacio, the Court rightly held that detaining accused persons for three to six years after committal without trial is violation of constitutional rights to liberty and to fair trial rights including a speedy trial and the presumption of innocence. Yet the judgment's curative core is conspicuously thin. Having found egregious constitutional violations that strike at the heart of the non-derogable fair-hearing guarantee, the Court did nothing more than declare a violation of the rights, not even the solace of an award of costs.

The practical result was captured by one member of the bench as a "pyrrhic victory." The judge noted with embarrassment that while the petitioners' complaint was a delay in the conduct of criminal trials, it had taken the Constitutional Court itself, a whole ten years to hear the petition. This was so despite the constitutional imperative to the Court to suspend all other matters and dispose of constitutional petitions as soon as possible! As if in a high judicial mea culpa the judge says further "this court has not obeyed the Constitution and has joined the ranks of those who show little respect to the words of the Constitution." The judge ended on a call to the court to do better or risk the loss of public trust and confidence.

We should have known! The writing was on the wall, or shall we say the lawns when the swank new court buildings encroached on the hallowed grounds of Constitutional Square. The self-same institution, supposed to be the ultimate protector and defender of the Constitution, deemed it fit to encroach on the land set aside to commemorate the Constitution.

The promise of Kazinda: Effective, tailored and preventive relief

The dozen-year-old matter of Godfrey Kazinda presents an unfortunate case of prosecutorial abuse. The Constitutional Court confronted a prosecutorial strategy of serial, piecemeal trials on offences of the same or similar character arising from the same facts. It was reminiscent of a game of Snakes and Ladders, each time the accused made progress in addressing one set of charges, new allegations would arise, effectively resetting the process and prolonging resolution.

The Constitutional Court held that such charge-splitting and sequential prosecutions violated the fair trial and protection from double jeopardy rights and offended the Director of Public Prosecution's constitutional duty to prevent abuse of process. The Court fashioned remedies fit for these wrongs. It did not stop at declarations. It issued permanent stays, discharged the petitioner in pending proceedings and prohibited future prosecutions built on the same facts. It invalidated statutory provisions to the extent of their inconsistency with the Constitution, thereby removing the legal scaffolding for the abuse. The remedies for the petitioner were forward-looking, preventive and complete. The Court neutralised the ongoing consequences of the rights violation and forestalled recurrence.

Kazinda thus embodied a principled approach to constitutional enforcement: identify the breach, assess its practical effects on the fairness and legality of the criminal process and then craft orders that cure those effects. The Court vindicated the right and deterred repetition of breach. This is what constitutional supremacy looks like in practice.

Bonafacio's retreat: A declaration without a remedy is not a remedy

By contrast, Bonafacio presented a problem no less corrosive to fair-trial rights: prolonged post-committal detention without trial, extending for years. The Court convincingly affirmed that such delay is unconstitutional and cannot be justified by the availability of bail or session-based scheduling. But having diagnosed the violation, it abandoned the cure. It declined to set enforceable custody time limits, refused to require expedited listing or define consequence-backed timelines and offered no individualised relief to the petitioners who had endured years of unlawful delay. It treated structural recommendations as the domain of Parliament or administrative practice directions and relegated conditions claims to separate proceedings under Article 50. Each party bore its own costs.

The result is a juridical half-measure. A declaration that a multi-year pretrial detention violates a fair trial does not in itself bring the accused to trial or release them from the shadow of unconstitutional custody. It does not compel the State to act within a defined period on pain of meaningful consequence. It does not compensate for the already suffered prejudice. Most worryingly, it communicates to institutional actors that systemic violations can be acknowledged without remedy, thereby diluting the Constitution's normative force.

Two features accentuate the judgment's shortcomings. First, the Court possessed everything it needed to craft targeted relief. It had jurisdiction, the parties were before it, the facts were simple and acknowledged. Where protracted delay renders a fair trial illusory or inflicts irreparable prejudice, the appropriate remedy may be a stay or termination; where a fair trial remains possible, time-bound supervisory orders coupled with release are the least intrusive measures that still vindicate the right. Second, the Court's own recognition of systemic failure, underscored by the candid admission of delayed adjudication, called for supervisory or structural directions, not for judicial abdication. One need not legislate from the bench to require immediate listing, impose reporting obligations or set compliance benchmarks within an extant constitutional and statutory framework.

Ask and it shall be given ... knock and the door shall be opened ...

Some may contend that a court is bound to grant only the relief specifically requested and concerns often arise when a court exercises discretion to award remedies beyond what has been expressly sought. One need only recall the notable case of Tumukunde v Uganda Law Society, along with the subsequent injunction against a general meeting, to appreciate the complexities involved.

Truth be told, the petitioners in Bonafacio only sought declarations of their rights. Unlike Kazinda, they did not seek specific orders for redress that would have vindicated their rights and deterred further breach.

Was the Court therefore entitled to give them what they asked for and stop at that? Is it the fault of counsel for the petitioners in not asking, not seeking, not knocking?

Is the Court not empowered to make such orders as are necessary to achieve the ends of justice? Do all courts not possess the authority to issue such directives? This recalls the notable case involving Dr. Col. Kizza Besigye, where concerns for his well-being led to his return to custody to prevent a potential collapse in court. Similar patterns have emerged in a growing number of habeas corpus applications, where individuals go missing, the State denies knowledge of their whereabouts and courts appear constrained in determining appropriate next steps.

Constitutional and statutory imperatives demand more

Faithful enforcement of fair hearing rights requires remedies that are effective, immediate and tailored. That is not a policy preference, it is intrinsic to constitutional supremacy. The Human Rights (Enforcement) Act underscores this imperative by providing effective relief, including orders that stop ongoing violations, exclude tainted evidence, release individuals from unlawful detention, and, where necessary, terminate proceedings rendered unfair or abusive.

Bonafacio's minimalist remedial stance is difficult to reconcile with these obligations. A court that finds a violation of non-derogable fair-hearing rights but declines to grant relief beyond a declaration leaves victims to fight a second battle for practical enforcement, often in fora that lack the same constitutional authority or visibility. This fragmentation is antithetical to the rule of law. For Bonafacio to now get relief, yet another proceeding in the High Court citing the Constitutional Court declarations must now commence as well as a request for orders for redress.

Nor is the fear of institutional overreach a persuasive justification. The Court in Kazinda demonstrated that targeted, consequence-bearing orders can be fashioned without trespassing into legislative prerogatives. The boundary is not between declarations and everything else, it is between crafting remedies that enforce existing constitutional commands and attempting to legislate new policy. Superintending compliance with the Constitution, by staying abusive prosecutions, discharging where fairness is irreparably compromised, ordering prompt listing, or setting enforceable timeframes within which the State must act, is an exercise of judicial duty, not a usurpation of legislative power.

Recalibrating toward effective relief: Recommendations

To restore coherence and efficacy in constitutional remedies, particularly in criminal-process cases, the Court should adopt a structured, rights‑vindicating approach:

First, begin from a presumption of complete and effective relief in the forum seised. Where the record suffices, the Court should dispose of the consequences of the violation directly, rather than consigning parties to pursue duplicative proceedings for enforcement. Only issues demanding extensive fact-finding should be remitted, and then with precise, time-bound directions.

Second, apply a disciplined remedial analysis that considers the nature and gravity of the violation, the causal nexus and prejudice to trial fairness, the irremediability of the harm, the systemic implications, and proportionality. Where delay or abuse has destroyed the prospect of a fair trial, the appropriate remedy is a stay, discharge or termination. Where fairness can be salvaged, orders setting strict timelines for trial, coupled with release on appropriate terms, should issue.

Third, deploy the full remedial toolkit contemplated by the Constitution and the Human Rights (Enforcement) Act. This includes release from unlawful or excessive pretrial detention, supervisory or structural orders requiring immediate cause listing, progress reporting, and compliance benchmarks, and compensation or costs to vindicate rights and deter repetition.

Fourth, expressly guide lower courts and prosecuting authorities on consequences for non-compliance. Time‑bound orders should carry defined consequences, such as automatic stay or release if the State fails to meet set timelines without demonstrable, exceptional justification, thereby aligning incentives with constitutional compliance.

Finally, articulate clear principles on when rights violations require termination. Double jeopardy, abusive sequential prosecutions arising from the same factual matrix, and inordinate, unjustified delay that renders a fair trial illusory warrant stay and discharge. Lesser, curable breaches warrant targeted remedies, but always with the imperative of ensuring that relief is real, not merely declaratory.

The Bonafacio case presented the Court with a valuable opportunity to give practical effect to the Constitution's guarantees for individuals facing systemic delays. However, by not crafting tailored and supervisory remedies, the Court did not fully build on the high standard it had previously set in Kazinda. A constructive path forward lies in embracing a remedial jurisprudence, one that treats declarations as a starting point rather than an end, ensuring that rights are not only acknowledged but meaningfully implemented.

It is unfortunate that the widely praised orders in Kazinda were stayed, pending appeal to the Supreme Court. Five years on, Mr. Kazinda remains in custody. We will explore this further in our next article, a tribute to Hon. Dr. Justice George Wilson Kanyeihamba.

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