CEHURD within the HIV/AIDS coalition has joined other civil society organizations together with academics, professional associations, public health specialists and researchers to challenge the ‘vague and criminalizing’ sections of the HIV law by filling a petition in the constitution court of Uganda. These different actors believe that criminal punishment and discrimination on the basis of HIV infection is both a legal and human rights question.

 

The major grounds of this petition include S. 18(e) “Disclosure by the third party” which violates the right to privacy as per Article 27 of the Ugandan Constitution as well as S.41 “Attempted transmission” which also violates the right to equality and the right to dignity.

These sections go on to violate the rights of patients as stipulated under the patients’ charter – a document that was developed by the ministry of health with the sole purpose of raising the standard of health care by empowering patients to responsibly demand good quality health care. Specifically, these discriminatory sections of the act gravely contradict articles 2 and 15 of the patients’ charter which speak to a patient’s right to confidentiality and privacy as well as prohibition of discrimination.

Preceding the filing of the petition at the constitutional court, a bevy of human rights activists gathered at the Uganda Museum on the 14th of July 2016. Activists from all branches of human rights were ready to take to the streets and march in support of this cause. People living with HIV/AIDS, nurses, medical workers, students, mothers with their babies, persons with disabilities, lawyers, journalists and human rights activists, clad in their T-shirts and placards, were led by the Makerere University band to TWED towers where the constitutional court resides for the petition to be filed.

The major concern was that criminalizing HIV transmission and/or exposure seriously hinders public health approaches to preventing HIV transmission and also disrupts access to HIV testing, education and support services and erodes public health norms that support mutual responsibility for HIV prevention and further heightens HIV-related stigma.

With the filing of this petition, civil society and all human rights activists hope that the government can give Ugandans a law that is not only amended, but also respectful of the rights of its citizens – even those living with HIV/AIDS.

 

 

 

By James Zeere

Health rights activists in Uganda will always look to the 2015 as the year in which they cleared major barriers regarding the health rights of mothers in Uganda. The story of maternal health care in Uganda has always been a gloomy one. Three women, now deceased, have forever altered the future of Ugandan jurisprudence on maternal health rights. These women best illustrate the state of maternal health care in Uganda as it is.

On August 19, 2009 Sylvia Nalubowa needed emergency obstetric care. The nurses, who required Sylvia to pay for the necessary commodities for the operation, systematically extorted her. While all this extortion was proceeding, Nalubowa passed away before she could even see a Doctor at the Hospital.

Further to the North of Uganda in December 10, 2010, Jennifer Anguko was kept in the labour ward for up to nine hours without being attended to. She started bleeding profusely while the nurses at the Hospital were in a room close by, chatting. Anguko death could have been averted if the nurses gave her the necessary care and attention.

The Constitutional Court in the first instance rejected CEHURD’s claims for declaratory orders that the deaths of Sylvia Nalubowa and Jennifer Anguko violated maternal health rights and that the State needed to undertake measures to end preventable maternal deaths in Uganda. Questions of the provision for the health services of mothers were committed to the Executive and could not be heard by the Court in accordance with the doctrine of separation of powers. On appeal the Supreme Court decided that the question of whether the deaths were a consequence of the violation of the right to health was a legitimate question that required the interpretation of the Constitutional Court. The Constitutional Court was therefore directed to hear the case.

But before the Supreme Court passed the decision on Nalubowa and Anguko’s deaths, CEHURD brought another matter before the High Court of Uganda. In May 2011, Nanteza Irene accompanied by her husband went to Nakaseke Hospital to deliver a baby and it was detected that she had suffered an obstructed labour and required emergency obstetric care by a doctor who was nowhere to be found within the hospital. The doctor showed up after eight hours but it was too late. Nanteza had breathed her last having endured eight hours of excruciating pain due to an obstructed labour.

These two cases seem miles apart in terms of the issues they deal with, but they’re both concerned with key questions of accountability in the realization of health rights in Uganda. Primarily, the facts identified disclose that the problems in each of the cases were risen when a pregnant mother could not receive emergency obstetric care because the doctor who was supposed to be at the health facility was inexplicably absent.

The Committee on Social Economic and Cultural Rights (CESCR) under General Comment No. 14 on the right to health prescribes that that states have the obligation of making functioning public health care facilities, goods and services available in sufficient quantity. Very importantly, however, CESCR also notes that the precise nature of facilities, goods and services vary depending on numerous factors including trained professional personnel receiving domestically competitive salaries. In that regard, while it may be argued that the state exhausts its obligation under the right to health when it puts in place a health facility and hires qualified health workers that are competent to provide health services required by the public, as the three mothers learnt, it is never enough. In the cases of Jennifer Anguko, Slyvia Nalubowa and Irene Nanteza, qualified doctors to provide emergency obstetric care services had been hired and deployed at the respective hospitals. Yet when they were urgently needed, they were nowhere to be found.

Justice Kabiito in CEHURD Vs Nakaseke District Local Government HCCS 111 of 2012 faulted the hospital administration for not adequately supervising the hospital staff, which led to the failure of ensuring doctors remained at their duty stations to attend to the patients. This here is the first level of accountability. It is not enough to have qualified health workers and commodities at the health facility when at the end of the day the public will still remain unable to access quality treatment. The right to health requires that deliberate measures be undertaken to ensure that all resources, both human and pharmaceutical, that have been put in place for purposes of health care provision serve their purpose, however meager they may be. The failure to put in place measures to ensure that the resources deployed are performing their function makes their supply redundant and deviates from the envisaged goals under the right to health.

In the utopian scenario where human resources, essential medicines and health supplies have been adequately made available in a health facility and they are effectively performing their function of providing quality health care to the public, a second level of accountability arises. According to Justice Bart Katureebe in CEHURD & Ors V Attorney General SCCA No 1 of 2013, while it is the sole prerogative of the executive to make policies for the provision of health care, the Constitution of the Republic of Uganda envisages situations where an individual or the public may be aggrieved by the policy made by the Executive on the grounds that it infringes on the Constitution. In such instances, the Constitution has granted the Constitutional Court’s powers to entertain this grievance in the form of a constitutional petition. Constitutional petitions determine whether or not the policy contravenes the Constitution as alleged or not. Yet, the Constitutional Court had refused to exercise these powers when approached by CEHURD in the first instance to protect mothers in Uganda today.

The Constitutional Court and the High Court are two strong accountability mechanisms that were rightfully recalibrated by the Supreme Court. In addition to ensuring that health care services are available, the state is required under the normative framework of the right to health to ensure that the services acceptable, accessible and of quality.  Where the state has through its policies made health care services available but has fallen short on the quality, acceptability and accessibility components, the powers of the Constitutional Court can be invoked because the right to health though not expressly provided for is guaranteed by the Constitution of the Republic of Uganda. The Constitutional Court had divested itself of these powers and denied the public access to justice where policies and laws violated the right to health.

CEHURD Vs Nakaseke District Local Government HCCS 111 of 2012, the Court challenged the State to strengthen its own accountability mechanisms for the protection of the right to health, while in CEHURD & Ors V Attorney General SCCA No 1 of 2013 the Court placed in the hands of the public a formidable weapon to challenge policies or laws that violate the right to health. Jurisprudence on the right to health in Uganda has never been stronger and the fight to realize the right to health within Uganda’s health system has never raised so much hope for mothers. The struggle continues but for now every duty bearer in Uganda can be held accountable for any violation of the right to health in Uganda thanks to these landmark cases.

 

 

 By Nsereko Ibrahim

Some circles in our communities shun people with mental disability not knowing that mental illness is a condition that can be treated in our health care setting. We as a people ought to take cognizance of our loved ones with mental disabilities detained in numerous prisons all over the country.

The continued stigma against people with mental disability stemming from our families and communities has resulted into abandonment of mentally disabled persons in police cells and prisons without follow up and care. This state of affairs has left many people with mental disability being incarcerated for years without receiving due medical attention.

Reflecting on a recent case handled by the High Court at Masaka (Uganda vs. Tesimana HC Criminal Revision Case No. MSK -CR-CV-0013 of 1999), sixteen years ago, Ms. Tesimana who required mental treatment was detained in prison for eight years without being tried and without receiving proper treatment. The Judge in this case stopped the hearing of the case and directed that the accused to be taken to hospital for a mental health examination.

The Uganda Human Rights Commission (UHRC), in its 2014 report, echoed the same concerns. The report indicated that Uganda Prisons Services had forty four (44) prisoners awaiting a Minister’s order, and that during the inspection by UHRC in Jinja Remand Prison; sixteen (16) prisoners were also detained awaiting a Minister’s order. These are some of the few cases that come out in the lime light, but how many of our brothers, sisters, parents and children with mental disability have been damped in rural and urban prisons?

It is critical to note that not all health facilities in Uganda provide mental health care services and yet a question remains, who should be held accountable for the deteriorating mental health of prisoners detained for years in prisons that cannot provide psychiatry treatment?

We must acknowledge that our government has made commitments on mental health at different levels. Article 35 (1) of our 1995 Constitution guarantees persons with disabilities a right to respect and human dignity and calls on our government to take appropriate measures to ensure that they realize their full mental and physical potential. Other laws in Uganda as well as regional and international human rights instrument such as; Persons with Disabilities Act, African Charter on Human and People’s rights, Convention on Rights of Persons with Disabilities among others, provide for rights of persons with mental disability.

Indefinite detention of mentally disabled persons denies them the right to respect and gravely undermines their dignity. The continued restriction of their liberty outside the confines set out in our Constitution is untenable in this era of promotion and respect of human rights.

Article 23(1) (f) of our Constitution only permits the detention of a person with a mental disability for purposes of care or treatment of that person or protection of the community. It’s unfortunate that people suspected to have a mental disability are remanded in prisons instead of being referred to health facilities for treatment.

Irrespective of existing situation however, we must applaud the Center for Health, Human Rights and Development that petitioned the Constitutional Court (Constitutional Petition No. 64 of 2011) challenging   the constitutionality of laws, practices and usage of abusive language towards persons with mental disabilities in the criminal justice system. The Honourable Justices of the Constitutional Court while delivering their decision recently, concluded that;

“Before subjecting any person to a criminal trial, the trial court must ascertain and establish that he/she (a person with a mental disability) will follow and understand the proceedings. The existing provisions in our Trial on Indictments Act (Article 45(5): the entire procedure to declare a person unfit for trial, the duration and place of his/her detention  and the time when he should be released should be determined by Court after full inquiry based on medical evidence in full compliance with due process. The Minister is procedurally and substantively not a competent person to certify the deprivation of liberty of the alleged mentally ill accused person without first seeking medical advice and without according the affected person a hearing.

The process of determining whether or not an accused person should be detained should be left to trial Court and such detention should be strictly for medical treatment. Court should also determine when the accused is ready to stand trial or be released to the community based on concrete medical evidence, provided by a psychiatrist.

The consequence of the current procedure is that it contains great potential for injustice as it may deprive an accused person of personal liberty for an indefinite period of time. There is a very real risk of mentally disabled persons disappearing in the criminal justice system without proper standards being set for involuntary confinement and procedures for review”.

As we celebrate this victory, we should be conscious that the government and relevant departments are often reluctant to take steps in implementing the decisions of Court. For this particular court decision, we expect the Ministry of Justice and Constitutional Affairs to urgently review the impugned provisions of the law and undertake comprehensive investigation to remove all people with a mental disability detained in prisons, and refer them to health facilities to receive treatment.  We also note that the Ministry of Health should also take steps to strengthen the existing health facilities to accommodate the mentally disabled detainees that are referred by Courts for treatment.

With combined efforts of government, families of detained persons, and the private sector, dignity of persons with mental disabilities in our country will be upheld, promoted and respected.