Health and the law is an emerging area of legal practice beset with a visible lack of national jurisprudence. The relationship between the law and health starts from the definition of the two terms; The World Health Organization (WHO) defines ‘health’ as a ‘state of complete physical, mental, and social well-being and not merely the absence of disease and infirmity’ and the law is defined as ‘the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties’. The marriage of the two gives us Health and the law which refers to those enforceable laws established by government and applied to people for the purpose of building a healthy society.

In Uganda, health and the law did not exist as an independent area of practice until recently. It was largely embedded within the law of tort under medical negligence, constitutional law under quarantines for reasons of public health and safety and in criminal law under imposing sanctions on health workers for committing negligent acts. Health and the law has slowly garnered force in India and South Africa as seen in the 1998 case of Soobramoney v the Minister of Health (KwaZulu Natal), the Constitutional Court said that the government was justified in restricting access to kidney dialysis, because of the high cost of this type of care, and the need for the government to have reasonable plans for spending its health care resources.

In the 2002 case of Minister of Health v Treatment Action Campaign, the Court stated that the government was wrong to restrict access to the antiretroviral medicine, nevirapine, that is effective in reducing the risk of mother-to-child HIV transmission and ordered the government to make the medicine available to pregnant women living with HIV.

The principal legislation informing health and the law in Uganda is found in the Constitution of the Republic of Uganda, 1995 which creates an obligation on the State to ensure that all Ugandans enjoy opportunities and access to health services and ensure provision of medical services to the population. It can also be found in acts of Parliament which include the Public Health Act Cap 281, Insurance Act 6 of 2017, the Medical and Dental Practitioners Act Cap 272, the Nurses and Midwives Act Cap 274, the Allied Health Professionals Act Cap 268, Mental Treatment Act Cap 279, Venereal Diseases Act Cap 284, National Medical Stores Act Cap 207 and National Drug Policy and Authority Act Cap 206.

Health and the law has also seen a slow but sure growth in the courts of law where the Courts have set precedent in several cases such as the cases of Joyce Nakacwa vs. Attorney General Constitutional Petition No. 2 of 2001 which was unfortunately not heard on its merits, there is also Sarah Watsemba Goseltine and Baby David Goseltine vs. Attorney General High Court Civil Suit No. 675 of 2006 which discusses medical negligence. Medical negligence contributes to death, damage, injury of patients.

Although the legal framework provides for redress against medical negligence in form of civil and criminal law, these laws are inadequate because it is hard for a victim to prove medical negligence against a medical professional let alone extract payment of damages from the government.

The case of CEHURD vs AG Constitutional Petition No. 16 of 2011 challenges inter alia the non-provision of basic indispensable maternal health commodities in government health facilities but the Petition was struck out for raising political questions but this decision was overturned by the Supreme Court in Constitutional Appeal No.1 of 2013 and the petition was forwarded back to the Constitutional Court to be heard on its merits. On 30^th September, 2019, the Constitutional Court heard arguments for and against this matter which was adjourned for a ruling which will be delivered on notice. There is also a growing connection between medical negligence and the right to health as seen in the cases of CEHURD & 3 ORS vs Nakaseke District Local Administration Civil Suit No. 111 of 2011 and CEHURD & 2 ORS vs Attorney General Civil Suit No. 212 of 2013 which discuss the right to health and medical negligence.

Health and the law has now expanded with the growing subscription to medical insurance and the increase of private actors in the health sector and some of the issues presented before Court now include; rights of persons with mental disabilities, tobacco control, sexual reproductive health, access to medicines, access to health information, quality of health care in private health facilities, businesses in the health sector among others.

There are also issues of professional misconduct/unethical behavior by health professionals, medical negligence, unhealthy and unsafe working environment in health facilities which jeopardize patient safety. The non-appreciation of the distinction between rights violations, ethics and medical negligence have also been prominent.

AJALO RUTH

ajalo@cehurd.org

Centre for Health, Human Rights and Development (CEHURD)

Suicidal behavior has existed throughout human history, but due to several complex factors, it has increased gradually in all parts of the world and, in the past few decades, has reached alarming statistical levels. Close to 800 000 people die due to suicide every year, this is one person every 40 seconds.

It is important to emphasize that it is a topic that has attracted the interest of most fields of study for centuries, which is why it has been explored by philosophy, religion, medicine, sociology, bioethics, law, and psychology, among other fields. It is often believed that it is only adults who exhibit suicidal behaviors, but it should be made known that many children and young people engage in this kind of behavior as a result of violence, sexual abuse, bullying and cyber bullying.

A student in his final year pursuing Medicine at Makerere University this year committed suicide for losing his savings from his first year over 15 million shillings. Well most of you are wondering why a university student in his final year can decide to commit suicide for just 15 million shillings, it is very possible. A lot of focus is put on the adults forgetting that young people too face psychological torture that can mentally perturb them. Assume this student had someone to talk to about this, maybe he would be among those that are to graduate. Let us help society learn about the signs and symptoms, risk factors and warning signs, and ongoing research about suicide and suicide prevention because the effects of suicide go beyond the person who acts to take his or her life: it can have a lasting effect on family, friends, and communities.

Suicide is a global public health problem that deserves the attention of all the actors in the field of mental health, including scientific and professional organizations, organizations for mental health users and their families, and universities. It deserves particular attention from government and national health authorities, since it is their responsibility to craft policies and directives aimed at establishing strategies to prevent suicide and promote the public’s mental health. Not leaving out the role of both print and audiovisual communication media and of social media, their participation can have positive as well as negative effects, depending on how they address this subject.

There are numerous complex factors that contribute to suicide, but what is most important is that all of our actions must be geared toward prevention. Accordingly, it is important that trans-sectoral and interdisciplinary action be taken by all of the actors involved.

Getting people to talk about a subject that tends to be a taboo and about which many hold mistaken and prejudiced ideas will help the community to learn about the risk factors so that they can identify and learn to address them.

Suicide is preventable and can therefore be avoided, which is why all of our efforts and public policies should focus on prevention. However, oftentimes, people who suffer from mental illness lack access to mental health services, sometimes because there are no services in their community and sometimes because they must wait months to be seen.

By: Faith Nabunya

Communication Associate at CEHURD

What a shame! Stealing from the sick? – Nakibuuka Noor Musisi

On the evening of June 17^th 2019, I fell short of words. For the first time I watched television past 11:00pm. It was a shocker watching what I refer to as “a well-planned game” happening in my country, moreover in the health sector. I thought to myself, who is behind this, why steal from the sick? All these questions and thoughts ran in my mind. I waited to get responses from the video in vain. What a shame!

Efforts to put an end to this vice have been watered down by the government’s non responsive attitude towards clear evidence like the famous NBS /BBC video titled “stealing from the sick” https://www.youtube.com/watch?v=d41_BaVygQI.  It is unfortunate that Uganda has shamelessly remained silent over this the ordeal, an indicator, in my opinion that the State has failed to account back to its citizens.

I have worked in the civil society health – human rights sector for close to 10 years. Throughout these years, I have interacted with various civil society organizations, government entities, private actors and development partners among others. These have had various approaches towards ensuring that the end beneficiary whom I will refer to as a rights holder does access better health care services wherever they are. The approaches used have been budget advocacy, trainings, human rights-based approach empowerment of communities to seek services, holding district health assemblies, talk shows, community dialogues, community score cards to mention but a few. While these approaches seem diverse, they all point to ensuring that service provision gets better, that you and I enjoy health care in this country.

On several occasions, and for this particular ordeal, social media has been used by people to express their dissatisfaction.  It is such a powerful tool that information does not only reach a wider part of society (nationally and globally) but the target people. I am very certain that the leadership in this country did view, read and analyse the video as well as reactions from people. My expectation was that the state would act. Unfortunately, to date, we have not received a formal communication from the government on what happened and why. What this means to me is that the state has breached the contract it has with its citizen- the social contract. What a shame!

Like any other citizen, and as a health service user as well as a rights holder, my so many questions have never been answered. I am hesitant to conclude that sections/ agents within the government are involved in stealing our medicine- we the sick. What a shame! Again, one would be hesitant to question why the investigative team was rather stopped (the video is not complete), put under police custody and no case has ever been opened against them.

These happenings have a very huge impact to the health sector now and in the years to come. I am certain that Uganda has all the expertise, resources and tools to put these vices to an end. It is very unfortunate that as a country we are silent yet health facilities have continued to deteriorate at the expense of these few people. Shame my beloved country, shame my government, shame, shame shame!!!. There is still room for improvement, something can always be done and this call goes out to the State to act.

The writer is a human rights advocate and a lawyer at the center for Health, Human Rights and Development (CEHURD).

Public shaming of women; an issue of Violence against Women!

On the evening of 11^th July 2019, the public was startled by a confrontational sermon by Pastor Bugingo of House of prayers ministries that went viral on different social media platforms. In the sermon, the renowned pastor shamed his ex-wife and mother of his children over a disease she had had for close to ten years while the congregation cheered on. This unfortunately is a buildup on many other stories that are left in passing and continue to be normalized in Uganda today.

The World Health Organization (WHO) defines Violence against Women (VAW) as any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.  Violence against Women takes different forms including; Intimate partner violence which may be physical, sexual, and emotional abuse; forced and early marriages; female genital mutilation and trafficking. In Uganda today, Violence against Women is reported as remaining on the high with more than 51 percent of women experiencing physical violence where intimate partners are reported as the largest number of perpetuators at 60 percent (Uganda Demographic and Health Survey of 2016 reported).

While different players are key in fighting the vice of public shaming of women, the state has the obligation to protect women from these violations as indicated under section 128 (3) of the Penal Code Act, Cap 120 that clearly stipulates  that “any person who, intending to insult the modesty of any woman or girl, utters any word, makes any sound or gesture or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman or girl, or intrudes upon the privacy of such woman or girl, commits a misdemeanor and is liable to imprisonment for one year.” Furthermore, section 179 of the Penal Code Act, Cap 120 states that “any person who by print, writing, painting, effigy or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully punishes any defamatory matter concerning another person, with intent to defame that other person, commits the misdemeanor termed libel.”

Public shaming of women can never become the new normal as it’s not only a violation of human rights but also has grave effects on survivors (psychological consequences, vulnerabilities to diseases), children (injuries to children) and society (added health care costs).  

Joselyn Nakyeyune

Program Officer, Center for Health, Human Rights and Development (CEHURD).