REGULATION OF HEALTH CARE PROFESSIONALS

Excerpt from Twinomugisha; Fundamentals of Health Law in Uganda.

1 Introduction

It should be noted from the outset that like other professions, the health care professional patient
relationship is based on trust. A patient trusts that the professional is competent, and possesses the
requisite training, qualifications, skills and expertise to handle his or her health challenge. In
Uganda, there are a number of health care professional councils that regulate the conduct of
medical and dental practitioners, nurses and midwives, pharmacists, and allied health
professionals. These councils are established by statute and their main functions include
maintaining registers for the relevant practitioners, disciplining those unfit to practise, overseeing
professional education, and guiding the practitioners on the question of professional ethics. The
law encourages professional self-regulation by creating councils to ensure that health care
professionals promote the interests of patients and the public. This chapter examines the law
regulating health care professionals in Uganda with particular attention to the establishment,
functions and composition of the various councils, registration of practitioners, and the questions
of discipline and professional competence.

2 Medical and dental practice

2.1 The Medical and Dental Practitioners’ Council

The practice of medicine and dentistry is governed by the Medical and Dental Practitioners’ Act
(the Act),1 which establishes the Medical and Dental Practitioners’ Council. The council is a body
corporate with perpetual succession and a common seal and may sue or be sued in its corporate
name and, subject to this Act, may do or suffer all things and acts as bodies corporate may lawfully
do or suffer. (Sec 2(1) of the Act.) The functions of the council are generally: to monitor, supervise,
maintain professional medical and dental education standards and ethics; to exercise disciplinary
control over dental and medal practitioners; to protect society from abuse of medical and dental
care and research on human beings; and to disseminate to the medical and dental practitioners and
the public, ethics relating to doctor-patient rights and obligations.1

According to the Act, the council is composed of the chairperson, who shall be a senior practitioner
appointed by the Minister; the director general of health services; two representatives of the
faculties of medicine of all the universities established by law in Uganda; two representatives of
the Uganda Medical Association; one representative of the Uganda Dental Association; and one
practitioner representing the Uganda private medical and dental practitioners.2 The term of office
for a member of the council is three years from the date of appointment and is eligible for
reappointment. He or she may resign his or her office by writing to the chairperson of the council.
Where the council member’s office becomes vacant other than by expiry of time, the Minister may
appoint another person to fill the vacancy.3

1
For the functions of the Council see, sec 3(a) - (i) of the Act.
2
Sec 1(a) - (c).
3
S.4

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The registrar shall be the chief executive officer and head of the secretariat4 and secretary to the
council. Although the secretary may participate in the deliberations of the council, he or she has
no right to vote. (Sec 4(2).) The registrar shall be a public officer appointed by the Health Service
Commission from amongst the registered practitioners. (Sec 7(1).) The functions of the registrar
shall be to keep and maintain registers of medical and dental practitioners; to make alterations in
the register or remove names of practitioners as directed by council. The registrar may also remove
from the register the name of a deceased practitioner, any entry which might have been incorrectly
or fraudulently made in the register; and with the consent of the person concerned, the name of a
person who has ceased to practise. The registrar also has powers to inspect and have full access to
all medical and dental health units. He or she is also obliged to record all minutes of meetings and
to have custody of the seal of the council, and to perform any other function as may be conferred
on him or her by council.14 He or she is responsible for the funds and property of the council and
day-to-day administration.5

The meetings of the council shall be as is provided for under the First Schedule to the Act.( Sec 5)
The first meeting of the council shall be convened by the chairperson as soon as practicable after
appointment of the first council.6After the first meeting, the council shall meet for transactions of
business at such places and at such times as may be decided by the council. In any case, the council
must meet at least once every three months.7The chairperson may at any time call a special meeting
of the council upon a written request by a majority of the members of the council.8 The quorum
for council meetings shall be a third of all the members.9 The decisions of the council shall be by
a majority of the members present and in case of equality of the votes, the person presiding shall
have a casting vote in addition to his or her deliberative vote.10 To avoid conflict of interest, a
member who has a direct or pecuniary interest in a matter before council must disclose the nature
of his or her interest as soon as possible to the council.11Subject to the requirements of the Act, the
council may regulate its own procedure.12

2.2 Registration of medical and dental practitioners

The registrar shall maintain the following registers of medical and dental practitioners: a main
register; a provisional register; and a temporary register.13 The registrar shall also maintain a
register for specialist medical and dental practitioners; and a register for health units.14The registrar
shall publish all up-date registers and lists of practitioners and health units in the Gazette.15 Any
person who holds himself or herself out as a registered medical or dental practitioner commits an

4
Sec 7(1).
5
Sec 8(2).
6
Rule 3(1) of the First Schedule
7
ibid
8
Rule 2
9
Rule 4
10
Rule 5
11
Rule 6
12
Rule 8
13
Section 19(1)(a) - (f).
14
ibid
15
Secs 19(2), (3) & 30

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offence and is liable on conviction to a fine of not less than three hundred thousand shillings and
not more than three million shillings or to imprisonment for not less than three months and not
more than one year or to both.16

Any person who qualifies to be registered may apply to council for registration.The application
shall be in the prescribed form and shall be accompanied by documentary proof of the
qualifications and the prescribed fees.(S. 20(1,2) Where the council is satisfied that the applicant
is eligible for registration, it shall authorise the registrar to enter his or her name on the register.
On registration, the applicant shall be issued with a certificate of registration17 and may engage in
medical or dental practice.18 A person who does not qualify to be registered may apply to council
for provisional registration, which shall cease to have effect upon attainment of full registration.19
Persons holding the following minimum qualifications are eligible for registration as medical and
dental practitioners: (a) a degree of Bachelor of Medicine, Bachelor of Surgery or Bachelor of
Dental Surgery granted by a university established in Uganda by law; and (b) a medical or dental
qualification recognised by the council for the purposes of registration.20 In addition to these
qualifications, every practitioner engaged in active public or private practice must undergo a
minimum continuing medical or dental education prescribed and organised by the council.21 The
council may delegate its power to prescribe and organise the education to the Uganda Medical
Association, the Uganda Dental Association or any other dental or medical association as it deems
fit.22

The applicant for registration should satisfy council that he or she has acquired experience by
serving a full-time internship in a hospital approved by the council.23 The council may grant
temporary registration to noncitizens of Uganda24 and may also recognise the qualifications from
a university not established in Uganda by law taking into account admission requirements and the
curriculum followed.25It should be pointed out that the council may require a person whose
qualifications are not recognized in Uganda by law to attend an interview or sit an oral or written
examination or both for the purpose of having his or her qualifications recognised by the
council26.The council may, after interviewing or examining that person, require him or her to
undergo a period of training or undertake further examination.27

It is important to point out that for those persons who intend to engage in private practice, a
certificate of registration is not enough. According to the Act, no person is permitted to engage in
private practice unless he or she has obtained a licence.28 A registered medical or dental

16
sec 47
17
Secs 21 & 22.
18
Sec 24.
19
Sec 23(1) & (2).
20
Sec 17(1)(a) - (b).
21
Sec 44(1).
22
Sec 44(3).
23
Sec 17(2
24
Sec 17(4).
25
Sec 18(1).
26
Sec 20(1)
27
Sec 20(2)
28
Sec 27(1).

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practitioner may apply to the council for a licence to engage in private practice either as a general
practitioner or as a specialist in his or her area of specialisation.29 The application shall be
accompanied by a copy of the certificate of registration. If the council is satisfied that the applicant
possesses the requisite qualifications, it may grant him or her a licence for private practice subject
to such conditions as it may determine.30 In order for a person who is granted a private licence to
practice as a full time private medical or dental practitioner, the council must be satisfied that he
or she has acquired experience by rendering service in a full-time employment in an approved
hospital or health unit for a period of three years.31

It should also be pointed out that the registered practitioner may demand reasonable charges for
medical, surgical or dental advice given; for the attendance or treatment rendered; for the
performance of any medical, surgical or dental appliance; or for any drugs prescribed or supplied.
The practitioner is entitled to institute legal proceedings for the recovery of the charges and any
associated costs. (Sec 42(1)(a) - (d).) It is important to note that there are no regulations or
guidelines to determine what amounts to ‘reasonable charges’. The determination of the charges
seems to be influenced by the discretion of the practitioner and the forces of supply and demand.
However, in the absence of health insurance and a functioning social security system, this is likely
to preclude the poor and marginalized from accessing health services. It may therefore be
necessary to regulate or control charges payable in respect of health services rendered.

It should be noted that following an inquiry, the council may cause the removal of the name of a
registered practitioner from the register under the following circumstances: where he or she is
convicted by any court of law of a criminal offence involving moral turpitude; where he or she is
found guilty of professional misconduct; where his or her name has been removed from the
medical or dental practitioners register of any other country or has been suspended from practice.
(Sec 25(1)(a) - (c).) The name of the person who has been removed from the register may be
restored by the council at its own motion. The name may also be reinstated upon an application by
the aggrieved person and after carrying out due inquiry into the circumstances of the removal.(
Sec 26(1) & (2) In conducting the inquiry, the council must, like other tribunals, adhere to the
principles of natural justice.

In Marko Matovu v Mohamed Sseviri, it was held that the cardinal rule of natural justice is so
central to Uganda’s justice system that it must be observed by both judicial and administrative
tribunals. The council must avoid bias, because where this is proved, the proceedings will be
declared a nullity. As held in Obiga v Electoral Commission & Another Election Petition
4/2011.The council should also ensure that the practitioner in question is given an opportunity to
give his or her evidence and call witnesses and cross-examine witnesses testifying against him.32

2.3 Inquiry into professional misconduct

The council may hold an inquiry into an allegation of professional misconduct against a medical
or dental practitioner. (Sec 33.) It has quasi-judicial powers for purposes of adjudicating over
complaints of professional misconduct against medical and dental practitioners. Patients may find

29
Sec 28
30
Sec 28(3).
31
Sec 28(4).
32
See; Rosemary Nalwadda v Uganda AIDS Commission Misc Cause 45/2010.

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it more convenient to lodge complaints with the council because unlike the courts, it is informal,
cheaper and specialised. Although the council is informal in procedure, it must, as pointed out
above, adhere to the principles of natural justice.

The Act does not define what amounts to professional misconduct. However, in the Guidelines
developed by the council, the following are listed as examples of ‘unprofessional or unethical
conduct’ by registered practitioners: failure to update one’s continuing medical education and
obtain annual practicing licence; advertising; professional incompetence; disclosure of
information regarding a patient without his or her permission; lack of respect for colleagues; giving
false certificates or evidence; and receiving or giving a bribe.33 Other examples are: deliberate
failure to obtain consent from a patient; rudeness to patients; failure to refer a patient where it is
clearly indicated; abandonment of a patient under one’s care; abuse of drugs and alcohol; offences
involving forgery, dishonesty or violence; sexual relationships with patients and/or attendants;
professional negligence that leads to maiming or death; conducting bio-medical research without
following established guidelines; and intentionally administering a lethal chemical to a patient.

The complaint alleging the professional misconduct must be in writing, signed by the complainant
or his or her legal representative or any other person acting on his behalf, and must be forwarded
to the registrar.34 The complaint should be comprehensive, containing the names and practice of
the relevant practitioner, all the relevant dates and facts and all documents to be produced at the
inquiry.35

Thus, the charges against the practitioner should clearly bring out the material facts to enable him
or her adequately prepare a defence. In Hutchinson v General Dental Medical Council, charges
were brought by the respondent’s committee against the appellant in respect of hygiene related
matters. His fitness to practice was found to be impaired and the respondent’s professional conduct
committee made an order for erasure from the register. The appellant challenged the decision on
grounds that the bringing of certain of the charges against him amounted to an abuse of process.
Although the court accepted that there was a considerable degree of vagueness in the charges
especially in terms of the timing, they were explicit in terms of the behaviour alleged and thus did
not render fair hearing impossible. The court found that there was no documentary or other
evidence to prove the allegations on a balance of probabilities and thus the decision of the
committee was wrong. On that basis, rather than the ground of abuse of process, the court quashed
the committee’s decision.

The registrar under S. 34 shall in consultation with the chairperson of the council, convene a
meeting for purposes of holding an inquiry. A 21-days written notice signed by the registrar
indicating the date, place and time of the inquiry shall be served personally on or sent by courier
to the person whose conduct is the subject of inquiry. The notice shall specify the particulars of
the alleged misconduct and shall be accompanied by relevant documents to be produced at the
inquiry. In De Souza v Tanga Township, it was held that the rules of natural justice require that the

33
Uganda Medical and Dental Practitioners Council (UMDPC) Guidelines in Respect of Complaints against medical and dental practitioners
(2002) 6-7 (the Guidelines). See also UMDPC/USAID Code of Professional Ethics (2013).
34
ibid
35
ibid

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party should be given adequate notice, which should clearly specify the time and venue where the
hearing of a particular matter is to take place.

The registrar shall request the practitioner concerned to provide a written explanation with a
caution that it may be used as evidence against him or her.36 A person whose conduct is the subject
of inquiry is entitled to appear and to be represented by an advocate of his or her own choice.37
Where the person fails to appear and the council is satisfied the he or she was duly served with the
notice, it may proceed with the inquiry in his or her absence.38 In Varma v General Medical
Council, it was held that the Fitness to Practice Panel had properly borne in mind that it had to
balance the appellant’s private rights against the public interest of having serious allegations
properly investigated and had justifiably treated the appellant’s failure to attend the hearing as a
voluntary decision to be absent.

The council may order and enforce the attendance of any witness. The summons for the attendance
shall be signed and issued by the registrar. All persons appearing before the council must be
truthful; any false statements will amount to perjury.39 The council has the discretion to hold the
inquiry in public or private.40 The council may appoint an advocate to advise it on questions of
law. (Sec 35) The council shall notify the person who is subject to an inquiry of its decision within
30 days after the conclusion of the inquiry. (Sec 36) The council may cause the report and decision
of the inquiry to be published in a manner that it deems fit. (Sec 37). The following are the possible
sanctions that may be imposed on a practitioner who has been found guilty: a verbal warning; a
written warning; a serious written warning with a copy to the employer; placement on probation;
suspension from practice for a prescribed period; erasure from the register; and any other penalty
the council may deem necessary in the circumstances.41

2.3.1 Examples of complaints to the council

It should be noted that pursuant to its mandate under the Act, the council has inquired into a number
of allegations of professional misconduct against medical practitioners. Although the rulings of
the council are not binding in terms of precedent, they serve to illustrate that the council takes
questions of alleged professional misconduct against practitioners seriously. For example, in An
inquiry by the council into alleged professional misconduct by Dr Asinja Kapuru, Dr Kapuru was
alleged to have substituted a medical record for another leading to the loss of a baby at Mulago
national referral hospital. He was found guilty of gross professional misconduct and suspended
from medical practice for a period of two years.

It was alleged that the live baby boy was wilLfully swapped with a dead baby girl at the hospital.
Dr Kapuru admitted that he filed two reports: one indicating that the baby was a male, and the
other showing that the baby was female. He argued that he was convinced to change the record by
a nursing sister. On the professional misconduct of the doctor, the Council observed as follows:

36
Guidelines supra
37
Sec 34(4)
38
Sec 34(5)
39
S. 34(6, 7, 8)
40
Guidelines
41
ibid

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 The matter under consideration is a question of professional misconduct by a medical
practitioner. Professional misconduct is the kind of conduct outside the bounds of what is
considered acceptable or worthy of its membership of the governing body of [the]
profession. Such behaviour usually manifests in negligence and/or failure to make
reasonable provision for the safeguarding of life, health or property of a person who may
be affected by the work for which the professional is responsible. The fact that substituting
a medical record for another by a medical practitioner is wrong and unbecoming is beyond
debate. The motive of such conduct is a matter of concern. It is simply a matter of lack of
responsibility. A responsible doctor records information on the basis of his actual findings
and not on the basis of ‘rumours’ from nurses or colleagues. When a practitioner handles
a patient, he or she assumes full responsibility for that patient. It is disgraceful for Dr
Kapuru to claim [or plead] that he made the second theatre report because of pressure. It is
unbelievable that a fully trained medical practitioner could be cowed by a nurse to do
something he knew as unethical and illegal.

In An inquiry by the council into the death of Mrs Mercy Ayiru at the Women’s Hospital and
Fertility Centre, Ayiru was admitted for the purposes of an operation to remove fibroids. Dr Sali,
the proprietor of the hospital advised the patient that the fibroids could be removed through
laparoscopic surgery. She consented to the operation. However, she died. The pathologist was of
the view that she died due to the negligence of the doctors who worked on her. In his defence, Dr
Sali argued that the operation was carried out by Dr Rafique Parker and that Mrs Ayiru died due
to cardiac arrest caused by ‘lack of oxygenation into lungs’ during induction of anaesthesia.
According to Dr Parker, this was an anaesthetic accident. The Council found that the patient was
under the care of Dr Sali; she was admitted to the hospital one hour before she was taken to the
theatre; the intubation tube was wrongfully placed into the oesophagus; and Dr Parker was not a
registered practitioner. The council ruled that as a doctor and proprietor of the facility, Dr Sali had
the primary duty of care, and was thus fully responsible for the death of Mrs Ayiru. Dr Sali was
issued with a strong reprimand while Dr Parker was suspended from practising medicine in
Uganda for five years.

In An inquiry into allegations of negligence against Uganda Martyrs Hospital Namugongo, the
complainant’s wife, Tendo Grace went for a routine check-up at the hospital and was seen by Dr
Opegu Titus who decided that she needed an urgent caesarean section. The patient was operated
on and the baby was given to the parents but she looked exhausted. When they requested the doctor
to check the baby, they were informed that he was busy operating on another patient. They
requested to be referred to another facility but there was inordinate delay. A specialist came to see
the baby after six hours and referred them to Kadic hospital where the baby was put on oxygen.
The hospital referred them to Mulago hospital where the baby died. The council found that Dr
Opegu was responsible because he performed a caesarean section without adequate preparation
and facilities to handle a distressed baby; there was a delay in referring the baby to a facility that
would handle the problem; and the hospital, especially the theatre lacked adequate surgical
facilities. The council ordered the suspension of Dr Opegu for three months and to do 50 hours of
continuing professional development in one year. The council also ordered the closure of Uganda
Martyrs hospital’s inpatient facility, X-ray services and theatre until there is proof that those
facilities are up to the acceptable standards.78

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2.3.2 Appeal against decisions of the council
As I pointed out above, in handling complaints against a medical or dental practitioner, the council
must follow the rules of natural justice, especially the right to a fair hearing,42 which is guaranteed
by the Constitution and is non-derogable. (Art 44) The Constitution Art 42 provides that
[a]ny person appearing before an administrative official or body [such as the council] has
a right to be treated justly and fairly and shall have a right to apply to a court of law in
respect of any administrative decision taken against him or her.

Consequently, the Act grants a person who is aggrieved by the decision of the council a right to
appeal to the High Court within 90 days from the date of notification of the decision of the council.
Sec 38(1) of the Act. However, medical practitioners seem more inclined to quietly serve their
sentences or settle matters out of court. Indeed, in Uganda, there is an extremely dearth of cases
where practitioners have challenged the decision of the council in the High Court. In Tumukurate
Espildon v Uganda Medical and Dental Practitioners’ Council, the appellant operated a medical
practice in a township of Lyantonde, Rakai district. The disciplinary proceedings against him were
based on a letter written to the council by persons who referred to themselves as concerned citizens.
In the letter, they made grave allegations against the appellant that he defiles young school girls
but due to his wealth, he influences the police not to take any action; that he seduced a girl, made
her pregnant and subsequently procured an abortion in his own clinic; and that he molests and
attempts to rape women who attend his clinic. On appeal to the High Court, his counsel argued
that the appellant was denied a fair hearing at the inquiry, that he was denied an opportunity to
listen to evidence against him and cross examine witnesses and that the council relied on hearsay
evidence to conclude that he was guilty of professional misconduct. Counsel also argued that the
appellant was denied the right to legal representation. The issues before the court were whether
the appellant received a fair trial; and whether or not there was sufficient evidence to justify the
conclusion reached by the council. The court held that the inquiry was substantially flawed in
procedure and the evidence adduced was not sufficient to justify the finding that the applicant was
guilty of professional misconduct. The court observed that convincing evidence should have been
sought by the council before reaching a finding that the applicant was guilty. That what was
required during the inquiry was observance of the rules of natural justice and an objective scrutiny
and evaluation of the evidence to determine whether the applicant was guilty of unethical or
professional misconduct. That although the council cannot be expected to base its findings on
proof beyond reasonable doubt, the evidence adduced against the medical practitioner must be
subjected to serious scrutiny.

It should be noted that according to the Act, the Chief Justice is mandated to make rules regulating
appeals to the High court.43 Unfortunately these regulations have not been made. In Tumukurate
above, counsel for the defendant argued that since the rules had not been made, the appellant could
not challenge the decision of the respondent. In dismissing the objection, the court held that
absence of the rules does not deprive an aggrieved party of a remedy. The court was of the view
that the Constitution commands the court to ‘administer justice without undue regard to
technicalities’.44 In any case, according to the Judicature Act, the High Court shall in exercise of
its jurisdiction, grant ‘all such remedies as any of the parties to a cause or matter is entitled to in

42
Art 28
43
Sec 38(2).
44
Art 126(2)(e) of the Constitution.

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respect of any legal or equitable claim properly brought before it’. Sec 33 of the Judicature Act,
cap 13.

In other jurisdictions, medical practitioners have also challenged decisions by their professional
bodies. For example, in the Kenyan case of Praxades Okutoyi v Medical Practitioners and Dentists
Board, the applicant was suspended by the board on 29 November 2007 from practicing medicine
as a paediatrican aesthetist for a period of three years. He was also ordered to undergo remedial
training before being re-admitted to practise medicine. The decision followed an inquiry by the
board pursuant to a complaint by Dr John N Ondeko, whose 17 year old son, suffered cardiac arrest
and permanent brain damage while in the care of the applicant. The son had been admitted at
Nairobi hospital on 15 February 2007 for a simple day surgery to correct his nose structure but left
the hospital with permanent head damage. The board found the applicant guilty of infamous or
disgraceful conduct.

The applicant appealed against the board’s decision arguing that it was tainted with bias and thus
unlawful and applied to court for a stay of the decision of the board. Counsel for the applicant
argued that the applicant stood a grave risk of suffering not just substantial but also irreparable
harm if the decision was not stayed pending the appeal and that the applicant’s professional
standing continued to be eroded by negative publicity accruing from the decision of the board.
Counsel for the applicant also argued that the country was suffering a substantial loss from the
illegal conviction and suspension of the applicant since there were only three paediatrican
aesthetists, including the applicant. The court agreed with counsel for the board that the applicant
had not demonstrated that the applicant would suffer substantial loss if the decision was not stayed.
In dismissing the application, the court held that public interest expounded by the medical board
in this case far outweighed the applicant’s interest to earn a living. Lifting the suspension could
seriously compromise the interests of the public. The court observed that had the applicant
undergone remedial training as ordered by the board and was working under supervision, the court
may have ruled differently.

In the Nigerian case of Olaye v Chairman, Medical and Dental Practitioners Disciplinary
Tribunal, the appellant and three other medical practitioners were charged before the respondent
disciplinary tribunal for negligence due to their non-attendance to a patient contrary to the ethics
of the medical profession. Although the appellant denied liability, the tribunal found him liable
and directed that his name be struck off the register of medical and dental practitioners in Nigeria.
However, the Nigerian Court of Appeal allowed the appeal on the ground that the tribunal had not
observed the principles of natural justice. In another Nigerian case, Denloye v Medical and Dental
Practitioners Disciplinary Tribunal, the appellant was charged with neglecting a patient who was
seriously ill in a prolonged manner between 29 June 1966 and 10 July 1966. The appellant was
also charged with extortion of money from the patient’s father as an inducement for him to treat
the patient. The tribunal found him guilty of infamous conduct and ordered removal of his name
from the register. However, the Court of Appeal set aside the decision of the tribunal on grounds
of natural justice.

In yet another Nigerian case, Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo,
a patient, a 29 year old woman, and her husband belonged to a religious faith known as Jehovah’s
witnesses, who regard blood transfusions as going against the Bible. The patient was admitted to

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a hospital where a blood transfusion was recommended for her ailment. The patient and her
husband explicitly refused to give their consent to the blood transfusion. The respondent treated
the patient without transfusing blood and the patient died. The respondent was charged before the
tribunal with negligence arising from the fact that he failed to administer a life saving measure to
his patient. The tribunal referred to the code of ethics which stated that a doctor should not allow
anything, including religion to intervene in his relationship with the patient and must take measures
to preserve life. The tribunal found the respondent guilty on three counts and suspended him for
six months on each of the charges to run concurrently.

The respondent appealed to the Court of Appeal where the questions to be determined were
whether the allegations in the charge amounted to criminal offences so as to take them out of the
jurisdiction of the tribunal; and whether the tribunal should have found him guilty when the patient
and her husband had refused to give consent to the blood transfusion. The Court of Appeal allowed
the appeal and set aside the decision of the tribunal and the latter appealed to the Nigerian Supreme
Court, which dismissed the appeal. On the balance between public interest and a patient’s right to
refuse medical treatment, Agoola, JSC stated:
The scope and limit of the duty of a practitioner faced with a patient’s refusal to give
informed consent to life saving medical treatment cannot be considered in isolation of the
right of the patient … It is expedient at the outset to recognize that a consideration of a
religious objection to medical treatment involves a balancing of several interests, namely:
the constitutionally protected right of the individual, state interest in public health, safety
and welfare of society, and, the interest of the medical profession in preserving the integrity
of medical ethics and, thereby, its own collective reputation. To give undue weight to these
other interests over the rights of the competent adult may constitute a threat to liberty of
the individual, unless legally recognised circumstances justify that weight should be
ascribed to one over the others. Where for instance, the health and safety of society is under
threat, for instance in an epidemic, public health and safety may be given a higher weight
than an individual’s human rights. Where, however, the direct consequence of a decision
not to submit to medical treatment is limited to a competent adult patient alone, no injustice
can be occasioned in giving individual right supremacy. In my judgment, any rule of ethics
or professional conduct that ignores the need to balance these interests or that gives undue
weight to individual circumstances will be out of touch with reality and may lead to unjust
consequences.

In the South African case of Health Professionals Council of South Africa v Dewald de Bruin, Dr
de Bruin, while a 32 year old clinical assistant specialising in urology, had a sexual relationship
with the complainant, a 21 year old student, which resulted in her pregnancy. Over a period of
about four months, Dr de Bruin attempted to abort the fetus in various ways, including physical
intervention and the prescription of medication to the complainant without following the
prescribed means acceptable to the medical profession. The complainant ultimately aborted in
November 1993, under traumatic circumstances. Dr de Bruin was formally charged before the
tribunal and an inquiry conducted by the disciplinary committee of the council followed. He was
found guilty of disgraceful conduct in February 1998 and his name was struck off the register. He
appealed to the Supreme Court of Appeal under section 20 of the Health Professions Act. Dr de
Bruin admitted that he made an error of judgment and was deeply ashamed with what he had done.
The Supreme Court of Appeal held that his conduct was indeed reprehensible and deserved severe

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censure. However, the court took into account Dr de Bruin’s professional integrity, his competence
as an urologist, his dedication to his patients, his high ethical standards and the excellent service
rendered to his community, all of which were collaborated by members of the medical profession.
The court also found that the council had breached the principles of natural justice by not allowing
the appellant’s legal representative to make an oral presentation. Consequently, the court quashed
the council’s decision and substituted the penalty of striking the practitioner’s name from the
register with a suspension of two years.

In order for the High Court to clearly understand how the inquiry was conducted by the council, it
is necessary for the appellant to avail a record of proceedings to the court. In the Tanzanian case
of Shiva v Minister of Health & another, the appellant averred that the first respondent’s medical
council, which found him guilty of negligence, was constituted by three members who had
previously conducted a probe against him and that this was contrary to the principles of natural
justice. The appellant further averred that the decision of the council was tainted with an error of
law since it did not address itself to the patient’s record. The court refused to quash the decision
of the council since the appellant did not make available to court the proceedings of the council,
including the pleadings, documents relied upon and the ruling. In dismissing the appeal with costs,
the court observed that in the absence of the record of proceedings, there was no evidence to prove
that the members took part in the proceedings and influenced the decision of the council.

3 Nursing and midwifery

3.1 The Nurses and Midwives Council

The Nurses and Midwives Act (the Act) S. 1 defines a midwife as ‘a person who is trained and
qualified in the care of women in relation to childbirth and in the care of infants and who is
registered or enrolled’. A nurse is defined as ‘a person who is trained and qualified in the promotion
of health, the prevention of disease and the care of the sick and who is registered or enrolled’.
Although the Act defines a traditional birth attendant (TBA) as ‘a person recognized by her
community as being able to assist women in child birth’, it does not provide for their regulation,
yet they play a critical role in assisting pregnant women, especially in rural areas.

The Act provides for the training, registration, enrolment and discipline of nurses and midwives
of all categories and establishes the Nurses and Midwives Council. The council shall be a body
corporate with perpetual succession and a common seal and may sue or be sued in its corporate
name and, subject to this Act, may do or suffer all other things and acts as bodies corporate do
suffer. S.2

The functions of the council shall be: to regulate the standards of nursing and midwifery in the
country; to regulate the conduct of nurses and midwives and to exercise disciplinary control over
them; to approve courses of study for nurses and midwives; to supervise and regulate the training
of nurses and midwives; to grant diplomas or certificates to persons who have completed the
respective courses of study in nursing or midwifery; to supervise the registration and enrolment of
nurses and midwives; and to exercise general supervision and control over the two professions.
S.3 Given the increased adoption of a human-rights-based approach (HRBA) to health
programming, it may be necessary for the Act to expressly provide for the promotion and
protection of human rights as one of the functions of the council.

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The council shall consist of the following: a chairperson who shall be a senior registered nurse or
midwife (or both) appointed by the Minister; two members elected by the Uganda Nurses and
Midwives Association; two tutors representing all nursing and midwifery schools in Uganda; one
representative elected by public health nurses; one representative elected by psychiatric nurses;
two representatives of nurses and midwives working in non-government organisation hospitals;
one representative of the Uganda Private Midwives Association; one representative of the Uganda
Community-based Health Care Association; one representative of the Uganda Medical and Dental
Practitioners Council; and one representative of the Uganda Allied Health Professionals Council.
S. 4 The council also has the following ex-officio members: the commissioner for nursing services;
the chief training officer (nursing); the registrar; the senior principal nursing officer Mulago
Hospital; the senior principal nursing officer, Butabika hospital; and the head of the department of
nursing, Makerere University. S. 4

No person shall be appointed a member of the council if he or she has been declared bankrupt or
has entered into any composition with his or her creditors; has been convicted of an offence
involving moral turpitude; is unable in the opinion of the medical board, by reason of infirmity of
mind or body, to perform the duties of a member; or has been disqualified from practice under this
Act or under the Medical and Dental Practitioners Act.102 The registrar shall be the secretary to
council. (S.4) The term of office for the members of the council shall be three years from the date
of appointment and shall be eligible for reappointment for not more than two terms. (S.5)

The meetings of the council are conducted in accordance with the Schedule to the Act. The council
shall meet for the transaction of business at places and times as may be decided by the council, but
it must meet once every three months.( Rule 3(1) of the Schedule.) The chairperson shall, upon a
written request by a majority of the members, call a special meeting of the council. (Rule 2(3).)
All questions proposed at a meeting of the council shall be decided by simple majority and in case
of an equality of votes, the presiding person shall have a casting vote in addition to his or her
deliberative vote. A decision may be made without a meeting by circulation of the relevant papers
among members of the council and by the expression of the views of the majority of members.
(rule 5). However, any member may require that the decision should be deferred and considered
at a meeting of the council.45 A member who has a direct or indirect pecuniary interest in a matter
to be considered at a meeting of the council should disclose the nature of his or her interest to the
council.( Rule 6(1).) The council may, subject to the Act, regulate its own procedure.(rule 8)

3.2 Registration and enrolment of nurses and midwives

The registrar shall be the chief executive officer of the council and the head of the secretariat and
shall keep and maintain a register and roll of nurses and midwives, indicating the address of
contact; the date of entry; qualifications and additional qualifications; and such other particulars
as council may determine.( Sec 22(1)(a) - (d).) A person holding any of the following minimum
qualifications shall be eligible for registration or enrolment in the appropriate category to which
the qualifications relate: a degree of Bachelor of Science in nursing recognised by the council; and
a certificate or diploma in nursing issued by the council.( Sec 19(a) & (b).) A person who produces
evidence, which is satisfactory to the council that he or she has been registered or enrolled as a
45
Rule 5

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nurse or midwife in any other country, may also be eligible for registration or enrolment by the
council. The council may also recognise other qualifications for purposes of nursing and midwifery
registration or enrolment. (Sec 19) A person not holding the requisite qualifications may apply to
the council, which may make arrangements for him or her to attend an interview and sit for an oral
or written examination.( Sec 21(1).)

After the examination, the council may direct that person to undergo a period of training or to
undertake further examination as it may specify. Where council is satisfied with the results of an
interview or examination, it shall authorise the person’s registration or enrolment. A person who
qualifies to be registered or enrolled as a nurse or midwife may apply to council for registration or
enrolment, and if council is satisfied that he or she has met the necessary requirements, it shall
authorise the registrar to enter the person’s name on the register or the roll. (Sec 23(1).) An
application for registration or enrolment shall be in the prescribed form and shall be accompanied
by the applicant’s qualifications and the prescribed fee. The registrar shall, if satisfied that all the
requirements for registration or enrolment have been met, issue the applicant with a certificate of
registration or enrolment with the seal of the council affixed on it.(S. 24) A registered nurse or
midwife practicing in a health unit, whether public or private shall apply to council for a practicing
licence. (S. 25) The application for the licence shall be accompanied by a certificate of registration.
If the council is satisfied that the applicant possesses the relevant qualifications, it shall grant him
or her the licence. The registration or enrolment of a nurse or midwife shall not entitle him or her
to practise medicine, surgery or dentistry; to grant any medical certificate or certificate of death;
or to undertake the charge of cases of abnormality or disease in connection with parturition.46
Every registered or enrolled nurse or midwife engaged in active public or private practice shall
undergo a minimum continuing education course as prescribed by the council in order to be
maintained on the register.(Sec 52(1).) Any person who procures registration by fraud commits an
offence. S. 51 Any person who holds him or herself out directly or indirectly as being a registered
or enrolled nurse or midwife commits an offence. (S. 53)

A registered or enrolled midwife who has served in a hospital or health unit for not less than five
years may apply to the council for a licence to engage in private practice. Under S. 30 the licence
permits him or her to ‘undertake the care of women in relation to childbirth and of infants and to
manage common health conditions in the community’. In order for a registered nurse to apply for
a licence to engage in private practice, he or she should have served in a hospital or health unit for
not less than ten years. The licence permits the nurse to manage common health conditions in the
community. If the council is satisfied that the nurse or midwife possesses the relevant qualification,
it shall authorise the grant of the licence. Under S. 34 the nurse or midwife shall not stockpile,
retail or wholesale drugs at his or her health unit or maternity home unless he or she first obtains
a special licence. He or she shall not, in the interest of good practice and the welfare of patients,
carry out procedures ‘beyond common conditions and health problems and shall refer all cases
beyond his or her ability to a medical practitioner’. Under S. 49 the nurse or midwife engaged in
private practice is entitled to demand reasonable charges for the attendance on, treatment of or
service rendered and may sue for or recover the same with all associated costs in a court of
competent jurisdiction.

46
Sec 27(a) - (c).

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It is important to point out that advances in nursing and midwifery education and training, locally
and internationally, have resulted in a new cadre of nurses and midwives with higher levels of
specialisation and qualifications at Bachelors, Masters and more advanced degrees. Given the
shortage of medical practitioners in the country, nurses and midwives who have acquired more
training and qualifications should be able to render more services to the public than is envisaged
in the current legislation. Midwives who have undergone further relevant training for example
should handle some of the complications related to child birth provided the relevant facilities are
available. There is thus a need to review the Act to ensure that it takes into account advances in
nursing and midwifery education and practice. Some of the midwives who have acquired
additional training and qualifications should not be restricted to the so-called common health
conditions in society. They may be able to perform some of the roles traditionally reserved for
medical practitioners provided they are provided with relevant additional training.

3.3 Inquiry into professional misconduct

It should be noted that the council may cause the removal of a nurse or midwife from the register
or roll when he or she is convicted by a court of law of a criminal offence involving moral
turpitude; is found guilty of professional misconduct by the council; or is suspended from practice.(
Sec 28(1)(a) - (c). The disciplinary committee of the council may inquire into the conduct of a
registered nurse or midwife if: he or she is convicted of an offence under the Act or under the
Medical and Dental Practitioners Act; he or she is convicted of any offence involving dishonesty
or fraud; he or she is alleged to have committed any scandalous conduct in respect of his or her
professional calling; or his or her name has been struck off the register or roll of any board,
hospital, university or other body recognised by the
council. S. 37

under S. 37, for purposes of holding an inquiry into the conduct of a nurse or midwife, the registrar
shall convene a meeting of the committee. The nurse or midwife shall be personally served with a
28 days’ written notice signed by the registrar. The notice may also be sent by registered post at
his or her last known address informing him or her of the place and time fixed for the inquiry. The
notice shall be accompanied by all documents relevant for the inquiry. The nurse or midwife shall
be entitled to be present at the inquiry and shall, if he or she wishes, be represented by an advocate
of his or her choice. Should the nurse or midwife fail to appear at the inquiry without a reasonable
excuse, and the committee is satisfied that he or she was duly served, it may proceed with the
inquiry in his or her absence. In R (Raheem) v Nursing and Midwifery Council, the Administrative
court held that there had been no proper exercise of discretion by the conduct and competence
committee of the respondent as to whether it had been appropriate to continue in the absence of
the applicant in respect of a hearing conducted to decide whether she had been guilty of
misconduct. It was held that the decision to proceed in absence of the nurse or midwife must be
exercised with care and caution. The appeal was allowed and the Committee was directed to rehear
the whole matter.

In Jatta v Nursing and Midwifery Council, it was held that where the Panel is satisfied that the
notice of hearing has been served, hearing of the complaint may proceed notwithstanding that the
notice was not received by the respondent or appellant. The court held that there was no procedural
irregularity when the Panel proceeded in Mr Jatta’s absence. In Faulkner v Nursing and Midwifery

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Council, it was alleged that the appellant had caused stress to a patient and engaged in
inappropriate sexually related activity. The court dismissed the appeal on grounds that the
respondents conduct and competence committee had not made an error in exercising its discretion
to hear allegations against the nurse in his absence, and then to find the allegations proved and
ordering that she be struck off the register.

In Ward v Nursing and Midwifery Council, the appellant, a registered nurse at a private residential
care home, faced four allegations before a panel of the respondent’s conduct and competence
committee. She was charged with failure to maintain accurate contemporary records, failing to
undertake assessments prior to administering treatment to a resident, and dishonestly documenting
that a percutaneous endoscopic gastronomy feed had been commenced when it had not. The
appellant argued that the panel erred in proceeding in her absence and that it inappropriately
admitted hearsay evidence against her.

The court found that the appellant had voluntarily absented herself from the hearing and upheld
the decision of the conduct and competence committee that her fitness to practice is impaired and
the she be struck off. An inquiry by the committee shall be deemed to be a judicial proceeding and
any false statements shall amount to the offences of perjury and subornation of perjury and
fabricating evidence under the Penal Code Act. (Secs 94 & 99 of the Penal Code Act.) The
committee shall have the powers of the High Court to summon witnesses and call for the
production of any documents and to examine witnesses and parties on oath. (Sec 38(1). Any person
who without reasonable excuse fails to obey the summons; refuses without reasonable cause to
answer all questions put to him or her by the committee; or willfully interrupts the proceedings of
the committee or insults any member of the committee, commits an offence Sec 39.

After the inquiry, the committee may recommend to the council the removal of the registered or
enrolled nurse or midwife from the register or the roll; order the suspension of the nurse or midwife
for a period that it may deem fit; or reprimand the nurse or midwife. S .40 All the proceedings
before the committee at any inquiry shall be recorded and signed by the presiding person.(S.41).
Under S. 42 any aggrieved person may within one month of the notification of the decision of the
council, appeal to the High Court. The appeal shall be by petition, stating the facts and grounds,
and a copy shall be served on the registrar. At the close of the proceedings of the inquiry, the party
shall be informed of his or her right to appeal. The appeal may, as I illustrated above, allege non-
compliance with the principles of natural justice. For example, in R (Johnson) v Professional
Conduct Committee of the Nursing and Midwifery Council, the appellant argued that the charges
against him were insufficiently particularised, which was unfair and contrary to article 6(3)(b) of
the European Convention on Human Rights, which provides that a person charged with an offence
has the right to adequate time and facilities for the preparation of his defence. It was held that the
charges must be sufficiently particularised to enable a person charged to know, with reasonable
clarity, the case he or she has to meet and to prepare a defence.

4 Allied health profession

4.1 The Allied Health Professionals Council

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Although the Act does not define AHPs, they belong to clinical health care professions, distinct
from medicine, dentistry, nursing and midwifery. AHPs play a critical role in the provision of
health services in the country. They include, dental technologists; medical clinical officers,
anaesthetic clinical officers, ophthalmic clinical officers, and psychiatric officers; laboratory
technologists and laboratory technicians; dispensers; orthopaedic clinical officers and technicians;
physiotherapists and occupational therapists; health inspectors, health assistants and assistant field
officers for entomology; and radiographers.

The AHPs are governed by the Allied Health Professionals Act, which provides for their
regulation, supervision and control. The Act establishes the Allied Health Professionals Council,
which shall be a body corporate and has the following functions: to regulate the standards of AHPs
in the country; to regulate the conduct of AHPs and to exercise
disciplinary control over them; to regulate the education, training of AHPs and approve their
qualifications; and generally to exercise general supervision and control over the allied health
profession.( Sec 4 of the Act.) Under S. 5 the council shall consist of a chairperson who shall be
a senior AHP; a representative of the director general of health services; the assistant commissioner
of health services responsible for AHPs; one person representing each of the professions of
dentistry; pharmacy; clinical medicine; medical laboratory technology; orthopaedic technology;
physiotherapy; public health; and radiography. The council also consists of one representative for
each of the following: the Medical and Dental Practitioners Council, the Nurses and Midwives
Council; all faculties of medicine of all universities in Uganda established by law; and the National
Drug Authority. No person shall become a member of the council if he or she has been declared a
bankrupt or has entered into a composition with his or her creditors; has been convicted of an
offence involving moral turpitude; is unable by reason of infirmity of mind or body, to perform
the duties of a member; or has been disqualified from practising or carrying out his or her
profession or calling.

4.2 Registration of AHPs

The council may recognise training institutions for AHPs and approve their courses of study and
qualifications.( Sec 19 & 20.) Holders of the following qualifications awarded by institutions
recognised by the council shall be eligible for registration: a degree of Bachelor of Science in any
of the disciplines of allied health professions awarded by a university established in Uganda by
law; and a certificate or diploma in any of the disciplines of allied health professions.( Sec 21(a) -
(b).) The council may also recognise qualifications obtained from a foreign country provided it is
satisfied that the standard of training and examinations is not inferior to the standard set by the
council.( Sec 21(1)(c) & (2).) A person who does not possess the requisite qualifications may apply
to the council, which may make arrangements for him or her to attend an interview or sit an oral
or written examination. The council may direct the applicant to undergo a period of training or
undergo further examination. If the council is satisfied with the results of the interview or
examination, it shall authorise his or her registration. It should be noted that the council may
appoint a committee to assess the suitability of the applicant’s registration, and the committee shall
submit its findings to the council for its decision.( Sec 22(1) - (4).)

A person who qualifies for registration as an AHP shall apply to the council for registration and if
it is satisfied that he or she possesses the requisite qualifications, it shall authorise the registrar to

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enter his or her name on the register. The application shall be in the prescribed form and shall be
accompanied by evidence of the qualifications and the prescribed fee.(S. 23). Under S. 24 The
registrar shall keep and maintain a register of AHPs and shall enter therein the address of contact;
the date of entry; qualifications; and such other particulars as the council may determine. The
registrar shall cause the publication of the names of registered AHPs in the Gazette.

On registration, the registrar shall issue the registered person with a certificate of
registration.(S.25) It should be noted that registration of an AHP does not permit him or her to
practice medicine or dentistry. He or she is also not permitted to grant any medical certificate or
certificate of death except for the disciplines that fall under his or her profession. He or she is also
not permitted to undertake the charge of cases of abnormality or disease in connection with
parturition.(S.26) It should also be noted that registered AHPs shall undergo minimum continuing
education as prescribed by the council. Any person who procures registration by fraud or passes
off as registered whereas not, commits an offence.( Sec 53 & 55.)

A registered AHP may apply to the council for a licence to engage in private practice in the
discipline of his or her area of specialisation. The application for the licence shall be accompanied
by a certificate of registration. The applicant should have worked full-time in a hospital or health
unit approved by the council for a period of not less than four years.( Secs 29 - 31.) The AHP
engaged in private practice may demand reasonable charges for the services rendered and may
recover the same with full costs in a court of competent jurisdiction.( Sec 51.)

4.3 Inquiry into professional misconduct

Where the council receives an allegation against an AHP, which if proved would constitute
professional misconduct, it may refer it to the disciplinary committee to hold an inquiry into the
conduct of the professional. The registrar shall on the receipt of the complaint summon a meeting
of the disciplinary committee. A 28 days written notice signed by the registrar shall be served
personally on the professional or sent to him or her by registered post at his or her last known
address. The notice shall contain the substance of the allegation made against him, the date, time
and venue of the inquiry and copies of relevant documents.( Sec 28(1) - (3).) The professional
shall be entitled to be present at the inquiry or be represented by an advocate of his or her choice.
If the professional fails to appear without any reasonable excuse, the committee may conduct the
inquiry in his or her absence.( Sec 38(5).)

In Abdalla v Health Professions Council,174 the appellant, a radiographer claimed that the
committee’s decision to proceed in her absence was in breach of her rights under article 6(1) of
the European Convention on Human Rights, and alternatively it was in breach of the rules of
natural justice since the committee proceeded in her absence. The court rejected the appellant’s
argument and held that lack of funds to pay for legal representation would not justify an
adjournment where there was no realistic prospect that the position would change in the reasonably
near future. That if the appellant chose not to avail herself with the opportunity to attend the
hearing, then the committee was entitled to proceed in her absence. In deciding whether to proceed
in the appellant’s absence, the disciplinary body must have regard to all the circumstances of the
case. In R v Jones (Anthony), the House of Lords held that the discretion to commence and conduct
proceedings in the absence of the appellant should be exercised with the utmost care and caution
and that the panel must carefully balance fairness of the appellant and the wider public interest.

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The committee shall have the powers of the High Court to summon witnesses and order the
production of all relevant documents.( Sec 39(1).) After the inquiry, the committee may
recommend to the council the removal of the professional or order his or her suspension for a
period it may deem fit.( Sec 41.) The registrar shall notify the professional in writing of the
decision of the council within three months after the conclusion of the inquiry.( Sec 43(1).) A
person who is aggrieved by the decision of the council may appeal to the High Court within one
month from the notification of the decision. The committee shall inform the professional of his or
her right of appeal. The appeal shall be by petition in writing stating the facts and grounds of appeal
and a copy shall be served on the registrar.( Sec 44(1) - (4).)

The committee must permit the professional to summon witnesses where necessary. In R
(Thompson) v General Chiropractic Council, the appellant challenged the decision of the
committee of the respondent to hold a substantive hearing when a particular witness, whom the
appellant promised to call, would not be available. The court analysed the issue as being one of
procedural fairness of the proceedings before the committee. The court noted that the expert
witness in question was crucial to the appellant’s defence and held that although courts would be
slow to interfere with case management decisions taken by a professional body, this was subject
to the supervisory jurisdiction of the court to ensure that the parties were given a fair hearing.

5 Pharmacy

5.1 The Pharmaceutical Society of Uganda

The Pharmacy and Drugs Act, which provides for the regulation of the profession of pharmacy
establishes the Pharmaceutical Society of Uganda, which ‘shall be a body corporate having
perpetual succession and a common seal and may sue and be sued in its corporate name’ and ‘may
hold, acquire and dispose of any property, movable or immovable’.( Sec 6(1).). Under S. 7 for a
person to be a member of the society, he or she should have passed the qualifying examinations
for membership of the society and completed the relevant practical training as approved by the
council.184 He or she should hold a degree, diploma or other qualification as approved by the
council. No person shall be enrolled as a member of the society unless he or she is 21 years old
and has paid the prescribed fees. A person shall not be enrolled if he or she has been adjudged by
a court to be of unsound mind; or has been convicted by a court whether in Uganda or elsewhere
of any offence involving fraud or dishonesty; or has been adjudged a bankrupt or insolvent.( Sec
8(a) - (c).) The registrar shall keep the register of all pharmacists in the prescribed form.( Sec
13(1).) The registrar shall issue a certificate of registration to an applicant provided he or she is of
good character and a member of the society.( Sec 13(2). In case the pharmacist for any reason
ceases to be a member of the society, his or her name shall be deleted from the register.( Sec
13(4).The registrar shall cause the names of all registered pharmacists to be published in the
Gazette.( Sec 14.)

According to the Act, the governing body of the society shall be a council, which shall consist of
twelve members. The core functions of the council are to enforce standards of pharmacy; regulate
the conduct and discipline of all pharmacists; maintain a register of registered pharmacists; ensure

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that pharmacy training institutions conform to set standards; approve all pharmacy practice outlets
whether public or private; and conduct continuing pharmacy education.(S. 21)

5.2 Inquiry into professional misconduct

Where a complaint is made against a pharmacist and the registrar is of the opinion that there is a
cause for an inquiry, he or she may, after consulting the chairperson of the disciplinary committee,
which is a committee of the
Pharmacy Board, serve a notice on the pharmacist requiring him or her to give an explanation in
writing within six weeks. (Sec 16(1).) The registrar shall lay a copy of the notice, plus the
pharmacist’s explanation and all relevant documents before the disciplinary committee.( Sec 16(2).
Where the committee is satisfied that there is a cause for an inquiry, it shall order that the inquiry
be held. The complainant, pharmacist and any other person who may assist the committee shall be
summoned to appear before the committee.( Sec 16(3).) The concerned pharmacist or his legal
representative should appear on the day fixed for hearing. However, where the pharmacist or his
representative fails to appear, the complaint may be heard in his absence.

In Yusuf v Pharmaceutical Society of Great Britain, where the pharmacist voluntarily chose not to
attend or be represented and the tribunal exercised its discretion with utmost caution, it was held
that the tribunal’s decision was fair, measured and unassailable.

Should the committee find the pharmacist guilty, it may impose any one or more of the following
sanctions: reprimand the pharmacist; order him or her to pay a fine of two-hundred shillings; order
the cancellation or suspension for a specified period of his or her certificate of registration. (S. 16).
Under S. 18 Any pharmacist aggrieved by the decision of the committee may appeal within one
month after the date of the order to the High Court. The appeal shall be made by petition in
writing bearing a stamp of twenty-one shillings.

In spite of the above statutory right appeal, I have not come across any Ugandan case where a
pharmacist has challenged the decision of the committee. However, in other jurisdictions, some
pharmacists have appealed against the decisions of their professional bodies. For example, in the
South African case of Simon v South African Pharmacy Council & Others, the appellant, a
pharmacist registered under the Pharmacy Act 53 of 1974 appealed against the decision of an
appeal committee of the first respondent, the South African Pharmacy Council. He was a party to
a number of transactions in which at the request of a customer an invoice was made out containing
a false description of the goods and products supplied to the customer. The purpose of this was to
enable the customer lodge a claim with his or her medical aid scheme. The appellant was convicted
of fraud and sentenced to 18 months’ imprisonment and suspended for a period of 5 years. Pursuant
to the conviction, the Council instituted disciplinary proceedings under section 39 of the Pharmacy
Act, against the appellant. He was found guilty of misconduct and struck off the register of
pharmacists and ordered to pay costs of the disciplinary inquiry.

He appealed against the sanction by the disciplinary committee. Counsel for the appellant argued
that the sanction unreasonably limits the applicant’s participation in his chosen trade, profession
or occupation, and the decision being in the nature of an administrative action, was arbitrary,
capricious or irrational. Counsel for the first respondent submitted that as far as sanctions or

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penalties imposed by a professional tribunal are concerned, the power of the court to interfere in
the exercise of the tribunal’s discretion is limited. The court agreed with counsel for the respondent
that the power of the court to interfere in the exercise of the discretion by a tribunal is very limited.
A court of appeal will only interfere if it is shown, that the tribunal, in imposing a sanction,
misdirected itself in such a nature, degree or seriousness that it shows, directly or by inference that
the tribunal did not exercise its discretion at all or exercised it improperly or unreasonably. In
dismissing the appeal with costs, the court observed that by his conduct, the appellant brought the
honour of his chosen profession into disrepute.

5.3 The scope of a pharmacist’s responsibility

Before concluding this section, it is necessary to inquire into the pharmacist’s scope of
responsibility. I have pointed out above that a complaint may be lodged against a pharmacist before
a disciplinary body. The question is: do pharmacists have a duty to warn or even explain to patients
about the potential risks of the medications prescribed by a doctor? Simply walk into a pharmacy
in Kampala or a town near you in order to appreciate the situation. Perhaps because most
pharmacies are not designed to be conducive for private inquiries or discussion about highly
personal or intimate matters, very few people discuss with the pharmacist the prescription from
the doctor. Some pharmacists may not insist that the patient buys the full dose as prescribed by the
doctor. More often than not, a patient presents the prescription from his/her doctor and the
pharmacist simply dispenses the drugs without any question. As health professionals, both the
doctor and pharmacist should be concerned about the health, care and safety of the patient. So,
does the responsibility to warn lie with the pharmacist or it remains with the patient’s doctor?

Generally, the role of pharmacists is to follow instructions of doctors accurately, and dispense the
medication in accordance with the prescription from a particular doctor. Albeit there are no local
cases on the subject, comparative case law may be persuasive. For example, in Hooper v
Capoblanco, the California Supreme court held that except for special circumstances, pharmacists
are not required to warn patients of potential side effects of drugs. In Kampe v Howard Stark
Professional Pharmacy, a patient alleged that a pharmacy failed to ‘warn, counsel, evaluate, or
verify the appropriateness of prescriptions, including controlled substances’.In fact, evidence
showed that the pharmacist had warned, counselled and evaluated the prescription. The court held
that the pharmacy had only ‘a limited duty to fulfil lawful prescriptions’. That a pharmacist fulfils
professional duties by accurately filling a prescription and that there is no duty for a pharmacist
either to monitor therapy or to warn patients.

However, over the years, courts have held that a pharmacist’s responsibility or duty extends far
beyond accurate order processing. Given that pharmacists are possessed with a unique body of
knowledge, when a pharmacist knows of a potential problem with a particular drug therapy, he or
she has a duty to act to protect the patient from harm. However, in absence of knowledge of the
problem, the pharmacist’s duty is limited. In Horner v Spalitto, a patient was prescribed
ethchloryunol 750mg and diazepam 10mg, each to be taken every eight hours. The pharmacist
dispensed the medications accurately. However, six days later, the patient died. An autopsy
attributed his death to the drugs’ adverse effects. The claim by the Horner family was based on the
pharmacist’s alleged failure to question the therapy and to warn the patient of the potential side
effects or adverse reactions when these medications are taken together. The pharmacist was found

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not guilty. On appeal, it was held that the pharmacist’s duty extends beyond mere prescription of
drugs and that pharmacists have the training and skills to recognise when a prescription dose is
outside a normal range. Thus, they are in the best position to discuss the appropriateness of a
patient’s drug regimen. Consequently, the court reinstated the case against the pharmacist.

The question whether a pharmacy has a duty to warn its customers of the potential side effects of
the prescription drugs it dispenses was also considered in Cottam v CVS Pharmacy, where it was
held that the pharmacy has no duty to warn. However, when the pharmacist assumes the duty to
warn the patient of some side effects, he or she must warn of all potential side effects. In Happel
v Wal-Mart Stores, it was also held that pharmacists are professionals and thus under certain
narrow circumstances, they have a duty to do more than just an accurate order filler. They have a
limited duty to warn. Albeit this duty would not require a pharmacist to learn about the patient’s
condition and render medical judgment, in giving information to the patient, he or she should warn
of potential danger. The court observed that when a pharmacist has special knowledge that a
particular patient has an increased risk of harm if she takes a particular medication, he or she has
a duty to counsel the patient about the risk.

In Morgan v Wal-Mart Stores, a child died due to hypereosinophilic syndrome resulting from the
use of desipramine prescribed for attention deficit hyperactivity disorder. The defendant pharmacy
was alleged to have been negligent for dispensing the medication without warning the child’s
parents of this rare disorder. The question before the court was whether pharmacists have a duty
under Texas law to warn of potentially adverse reactions to prescription drugs. The court stated:
To impose a duty to warn on the pharmacists would be to place the pharmacist in the middle
of the doctor-patient relationship, without the physician’s knowledge of the patient …
[T]he duty of the manufacturer runs to the physician and not the patient. Therefore it is
illogical and unreasonable to impose a greater duty on the pharmacist who properly fills a
prescription than is imposed on the drug’s manufacturer.

The court dismissed the case and held that the dispensing pharmacist simply had no knowledge of
the particular risks of desipramine in this particular patient. However, the court acknowledged that
pharmacists owe patients a duty beyond accurately filling a prescription ‘based on the presence of
additional factors, such as known contraindications, that would alert a reasonably prudent
pharmacist to a potential problem’.

6 Traditional medical practice

6.1 Understanding traditional medicine

The World Health Organisation (WHO) defines traditional medicine (TM) as, Diverse health
practices, approaches, knowledge and beliefs incorporating plant, animal, and/or mineral based
medicines, spiritual therapies, manual techniques and exercises applied singularly or in
combination to maintain well-being, as well as treat, diagnose or prevent illness.

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According to the National Council of Traditional Healers and Herbalists Associations of Uganda
(NACOTHA), TM refers to ‘ways of protecting and restoring health that existed before the arrival
of modern medicine with medicinal plants being the world’s oldest known health-care products’.

TM plays a critical role in the promotion of health of the people especially in rural areas. People,
especially in the rural areas, may find TM more physically and economically accessible and
culturally acceptable than modern or conventional medicine. They may identify with the traditional
medical practitioners who may more easily appreciate their situation than the modern health
practitioners whose attitude may be patronising and condescending. TM is perceived to be more
‘natural and safer’ than conventional therapies and is an important and often underestimated part
of prevention and treatment health services. For example, in a study concerning rural poor
women’s access to maternal health care rights in south western Uganda, I found that some women
utilise the services of traditional birth attendants (TBAs) for labour and delivery care although they
receive antenatal care (ANC) at health centres. In eastern Uganda, TM has been used for the
treatment of diabetes because of difficulties in accessing hospitals. There is also evidence that
herbal medicines are used by infertile women in order to achieve parenthood. TM is also used to
treat sexual and erectile challenges in men.
In fact, in Uganda, between 70-80 per cent of the population use TM to meet their health care
needs. The importance and contribution of TM to the improvement of health has been underlined
by the WHO Director General as follows:
[T]raditional medicines, of proven quality, safety, and efficacy, contribute to the goals of
ensuring that all people have access to care. For many millions of people, herbal medicines,
traditional treatments, and traditional practitioners are the main source of care. This is care
that is close to their homes, accessible and affordable. It is also culturally acceptable and
trusted by large numbers of people. The affordability of most traditional medicines makes
them all the more attractive at a time of soaring health-care costs and nearly universal
austerity. Traditional medicine also stands out as a way of coping with relentless rise of
chronic non-communicable diseases.

It should however be noted that in spite of the importance of TM to the health of the people, it
raises questions of safety and quality.222 There are reports that quack traditional healers have
taken advantage of desperate and hapless patients.223 Consequently, the government has been
urged to develop legal and policy frameworks to regulate the activities of traditional medical
practitioners.

6.2 Regulation of traditional medical practice

There is no law in Uganda that specifically addresses the registration, practice and discipline of
traditional medical practitioners. The NDA has established guidelines for the manufacture,
registration and sale of herbal medicines. However, the guidelines do not cover the practice of
herbal medicine, which ‘will be handled under the auspices of the various professional
organizations that unite herbalists in the country’. Consequently,traditional medical practitioners
are self-regulated through NACOTHA, which is a loose association of traditional healers and
herbalists in the country. Some of the functions of NACOTHA include: the promotion, research
and the development of TM in the country and to ‘increase public awareness and understanding
about the value of traditional medicine and other healing practices through improving health,
prevention and management of diseases’. The WHO has advocated for the regulation of TM in

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order to ensure the safety and efficacy of its products and practices. The goals of the WHO strategy
are: (a) harnessing the potential contribution of TM to health, wellness and people-centred health
care; and (b) promoting the safe and effective use of TM by regulating, researching and integrating
TM products into health systems where appropriate.

TM may be integrated into the mainstream health care system as in China or operate parallel with
modern or conventional medicine as in India. However, as Sonya has cautioned, integrating TM
in the health care system as advocated by the WHO may withhold power from traditional
practitioners. Thus, although there is an urgent need to regulate the practice of TM in the country,
the process should be formal, inclusive and participatory. NACOTHA should be actively involved
in the design and implementation of any proposed legislative framework on TM.

7 Conclusion

The legal framework for regulation, supervision, control and discipline of various categories of
health professionals in the country exists. However, it suffers from a number of weaknesses. In the
first place, all the statutes treat health care as a commodity to be determined by the market without
state regulation. As expected, health care professionals engaged in private practice are entitled to
demand and recover reasonable charges and other costs from the patients. However, there is no
mechanism to determine the reasonableness of the charges. There is a need to provide for the
regulation of private health providers and the control of fees and charges in respect of medical
treatment and other services rendered by these providers.

The legal framework does not adequately recognise advances in health training and education,
which have produced a new cadre of health professionals in the country. For example, it may be
necessary to review the Nurses and Midwives Act to take into account the fact that many midwives
have acquired further training and qualifications entitling them to perform some of the roles
traditionally reserved for medical practitioners. Midwives give care and supervision to women
during pregnancy, labour and the postpartum period and care for the new born babies and infants.
With further training and the availability of necessary facilities and equipment, midwives should
be able to assist women who have developed complications and require emergency obstetric
services such as a caesarean section, which has hitherto been performed by gynaecologists and
obstetricians. There is also a need to regulate the work of traditional medical practitioners who
assist many people especially in rural areas.231 These practitioners should actively participate in
the design and implementation of the relevant legal and policy frameworks intended for their
benefit.

Although there is an increased recognition of the role played by human rights in health
programming, the legal framework regulating health care professionals does not explicitly provide
for the promotion and protection of human rights especially the right to health. It may not be
enough to merely provide for human rights issues in various codes of ethics. These should be
explicitly provided for in the statutes or in regulations or as schedules to the statutes so that their
legally binding nature may not be challenged.

Unlike the statutes regulating medical and dental practitioners, nurses and midwives, and AHPs,
the Pharmacy and Drugs Act, which regulates pharmacists, is poorly drafted, disorganised and

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outdated. It has many bodies: the Pharmacy Board, Pharmaceutical Society of Uganda and the
Pharmacy Council. The functions and roles of these bodies appear duplicated, conflicting and
confusing. For example, albeit the council, which is the governing body of the society, is ‘charged
with the general responsibility for securing the highest practicable standards in the practice of
pharmacy’, disciplinary matters are handled by either the board or the disciplinary committee. The
functions of the board and society are not clearly defined. Some of the sanctions are also outdated.
For example, one of the penalties that may be imposed on the pharmacist is a maximum of two
hundred shillings. Although pharmacists deal in drugs, their relationship with the National Drug
Authority is also not provided for by the Act. The Act also does not provide formatters critical for
the pharmacy profession such as continuing pharmacy education and the regulation of private
practice. Thus, there is a need for a review of the Act to ensure that it clearly demarcates the
functions of the various organs and caters for new and emerging issues in the pharmacy profession.

HEALTH AND THE LAW II 2018

REGULATION OF HEALTH CARE POFESSIONALS
Faculty: Prof. Ben K. Twinomugisha
Question
Ms. Kameri, 30 years, went to Nyaki Health Centre IV, where she had attended her antenatal care
(ANC), for delivery. She developed some complications. She was asked to pay 250,000 shillings
to undergo a cesarean operation. However, she did not have the money. James, the doctor at the
health centre told her husband, Kenneth: ‘You either pay the money and we operate your wife or
she is transferred to Mulago hospital for the operation if you can buy fuel for the ambulance’.
When Kenneth asked about the cost of the fuel, James told him that it is around 300, 000. Kenneth
did not have the money and was confused about what to do.
James called Kenneth aside and said: ‘Your wife is capable of delivering at my private clinic,
James Medical Practitioners, where you will be required to pay only 90,000 shillings’. Kenneth’s
family organized the money and transported Ms. Kameri on the bic ycle to the
clinic, which was 3 kilometres from Nyaki health centre. They waited for several hours at the clinic
but James was nowhere to be seen. A nurse at the clinic called his number but it was off. She told
Kenneth to be patient but his wife’s situation was deteriorating and she eventually died. The post
mortem report revealed that she died of ‘hemorrhagic shock following a ruptured uterus due to an
obstructed labor’.
Kenneth filed a complaint to the Medical and Dental Practitioners’ Council. On 8th February 2018,
the registrar wrote to James an e-mail informing him that a complaint has been filed by Kenneth
about his negligent conduct leading to the death of Ms. Kameri. In the e-mail, the registrar
informed Kenneth that the hearing of the complaint has been fixed for 22nd February 2018 at 10
a.m. in the Council Board Room. No documents were attached to the e-mail. James was upcountry
for two weeks where he could not access the Internet. He only saw the e-mail when he returned on

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the night of 21st February. On 22nd February, the Council convened a meeting to hear the complaint
against James. James reported for the hearing and the registrar read the complaint to him and asked
him to respond. James explained to the Council that he only saw the complaint the previous night
when he returned from upcountry and that he needed an adjournment of the hearing to enable him
consult his lawyer and prepare an adequate response to the complaint. That he also needed the
details of the complaint and copies of any documents that the Kenneth intends to rely on. The
Chairman of the Council adjourned for ten minutes. When Council resumed, the Chairman read a
short ruling as follows: ‘We have listened to your request but observe that since you are the one
who sent the deceased to your clinic and neglected to attend to her, you know the facts very well.
Your request for adjournment is hereby refused. The hearing shall proceed’. James politely picked
his note book, bowed to the Chair and went out of the Board Room.
The Chairman asked Kenneth to narrate his complaint to the Council. He produced three family
members who explained what exactly happened. The Chairman adjourned for one hour. When
Council resumed, he delivered the following ruling: ‘We have carefully listened to the complainant
and the witnesses and hereby find James guilty of professional misconduct and hereby direct the
registrar to remove the doctor from the register. He is also sentenced to imprisonment of one year
and a fine of 10 million shillings, which should be paid to Kenneth to enable him look after the
kids. So we order’.
Identify all the legal issues and advise James.

ISSUES
Whether the meeting was tainted with procedural irregularity?
Whether James was accorded a fair hearing?
Whether the council exceeded its sentencing powers?
Remedies available.

LAW APPLICABLE.
Constitution of Uganda 1995
Medical and Dental Practitioners Act
Common law.

RESOLUTION.
Whether the meeting was tainted with procedural irregularity?

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Sec 33. Of the Medical and Dental Practitioners Act the Uganda Medical and Dental Practitioners
Council may hold an inquiry into an allegation of professional misconduct against a medical or
dental practitioner. It has quasi-judicial powers for purposes of adjudicating over complaints of
professional misconduct against medical and dental practitioners.

The Act does not define what amounts to professional misconduct. However, in the Uganda
Medical and Dental Practitioners Council (UMDPC) Guidelines in Respect of Complaints against
medical and dental practitioners (2002) developed by the council, the following are inter alia listed
as examples of ‘unprofessional or unethical conduct’ by registered practitioners; professional
incompetence; and receiving or giving a bribe. failure to refer a patient where it is clearly indicated;
abandonment of a patient under one’s care; abuse of drugs and alcohol; offences involving forgery,
dishonesty or violence, professional negligence that leads to maiming or death.

In An inquiry by the council into alleged professional misconduct by Dr Asinja Kapuru, on the
professional misconduct of the doctor, the Council observed as follows:
The matter under consideration is a question of professional misconduct by a medical practitioner.
Professional misconduct is the kind of conduct outside the bounds of what is considered acceptable
or worthy of its membership of the governing body of [the] profession. Such behaviour usually
manifests in negligence and/or failure to make reasonable provision for the safeguarding
of life, health or property of a person who may be affected by the work for which the professional
is responsible.
The facts show that James tried to extort a bribe from a patient under his care, and exhibited
professional negligence that led to the death of the patient. The council, therefore, had jurisdiction
to entertain the complaint.

In entertaining the complaint, the Act lays down procedures that must be followed.

Sec 34(1) of the Act requires the registrar in consultation with the chairperson of the council, to
convene a meeting for purposes of holding an inquiry.
Under Sec 34(2). A 21-days written notice signed by the registrar indicating the date, place and
time of the inquiry should be served personally on or sent by courier to the person whose
conduct is the subject of inquiry.
Sec 34(3). Requires that the notice shall specify the particulars of the alleged misconduct and shall
be accompanied by relevant documents to be produced at the inquiry.

In De Souza v Tanga Township, (1961) EA 337. it was held that the rules of natural justice require
that the party should be given adequate notice, which should clearly specify the time and venue
where the hearing of a particular matter is to take place.

In the instant case on 8th February 2018, the registrar wrote to James an e-mail informing him that
a complaint has been filed by Kenneth about his negligent conduct leading to the death of Ms.
Kameri. In the e-mail, the registrar informed Kenneth that the hearing of the complaint has been
fixed for 22nd February 2018 at 10 a.m. The hearing indeed took place on 22nd February 2018
which is short of a 21 days notice. The hearing should have taken place on 1 March 2018 or
thereafter after the expiry of 21 days. There was no compliance with this statutory requirement.

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The notice should be served personally on or sent by courier to the person whose conduct is subject
of inquiry. In this, the registrar sent an email to James. An email is not personal service or service
by a courier. Also this requirement was not complied with.
Though in the case of PARAMBOT BREWERIES LTD v KINENE BERNARD
The Industrial Court was of the view that in today’s world of information technology it is naive of
the appellant to assert that service by email is no effective service.
We are of the considered opinion that where one indicates that communication by email is
good communication one cannot turn around to say that the same means of communication
is not effective. We form the opinion that in showing the email on the letter of appointment
as well as on the letter of dismissal, it was the intention of the appellant that should the
appellant need to communicate, such means of communication was acceptable and
effective. Therefore, when the appellant effected service by email, such service was
effective service.
However, the above cases should be considered on its own facts where there was evidence of
previous communication via email. In the instant case, there is no evidence of prior communication
via email. Therefore, there was no proper service.
Also the notice should specify particulars of the alleged misconduct and accompanied by relevant
documents. In the instant case, the particulars of the misconduct were not included in the email.
No documents were attached as required.
Therefore, the process leading to the convening of the council meeting was tainted with procedural
irregularities short of the legal requirements for such a meeting.
Whether James was accorded a fair hearing?
In conducting the inquiry, the council has quasi-judicial powers for purposes of adjudicating over
complaints of professional misconduct against medical and dental practitioners. The council must,
like other tribunals, adhere to the principles of natural justice.

It should be noted that the principle of natural justice has been embedded in the 1995 Constitution
of the Republic of Uganda and its one of the non derogable rights.

Art. 42 of the 1995 Constitution provides that any person appearing before any administrative
official or body has a right to be treated justly and fairly and shall have a right to apply to a court
of law in respect of any administrative decision taken against him / her.
This is fortified by Art 28 of the 1995 constitution, which provides for a right to a fair hearing. It
provides that in the determination of civil rights and any obligation, or in criminal matter a person
shall be given a fair, speedy and fair hearing before an independent tribunal established by law.
Accordingly, Article 44 of the Constitution provides inter alia that notwithstanding anything in
the Constitution, there shall be no derogation from the enjoyment of the right to fair hearing.

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The principle of natural justice is expressed in Latin as “audi alteram partem” which is translated
as “hear the other side." Elaborate rules have been laid down to ensure that a party to any
proceedings can be heard.

In Grimshaw V Dunbar 1 Q.B 408 at 416, Jenkins L.J said,

‘‘…a party to an action is prima facie entitled to have it heard in his presence; he is entitled
to dispute his opponent’s case and cross-examine his opponent’s witnesses and his own
evidence before court. …that a litigant who is by mischance or accidentally absent the
common justice demands that he/she should be allowed to come to the court and present
his case.’’

In John Bosco Oryem V Electoral Commission and UNEB, it was held that quasi judicial
bodies have functions akin to a court or an arbitrator. That ‘if interests of an individual are going
to be affected, he must be given a hearing. Where quasi-judicial functions have to be exercised by
a board or anybody of persons, it is necessary and essential that they must always give a fair
opportunity to those who are parties in the controversy to correct or contradict any relevant
statements prejudicial to their case. Both sides have a right to be heard and a decision in breach of
the principles of natural justice is void.’
In Kampala University V National Council For Higher Education it was HELD that the right to
be heard is sacrosanct and none derogable under Article 28 (1) and 44 (C) of the Constitution of
Uganda. It has been decided over again by this court to this effect. It is now settled that it a
fundamental principle of justice and procedural fairness that no person is to be condemned unless
that person has been given prior notice of the allegations made against him or her, and a fair
opportunity to be heard. It is apparent that the rule of natural justice obliges an adjudicator faced
with the task of making a choice between two opposing stories to listen to both sides. He should
not base his decision only on hearing one side. Therefore where a prejudicial decision has been
made by a public authority in the course of exercise of its statutory authority without according
the affected party a right to be heard then it has to be quashed.

Bwowe Ivan and Ors v Makerere University, in his ruling judge Benjamin Kabiito stated that the
right to a fair hearing is a right protected and promoted as a fundamental right and freedom under
article 28 of the constitution. He went further and gave the universal principles for a right to a fair
hearing which include prior notice, right to adjournment, cross examination, legal representation,
and disclosure of information. The case of Bwowe further emphasised that a decision arrived at in
disregard of the rules of natural justice is null and void ab intio.
In the Nigerian case of Olaye v Chairman, Medical and Dental Practitioners Disciplinary
Tribunal, (1977) NMLB 506. the appellant and three other medical practitioners were charged
before the respondent disciplinary tribunal for negligence due to their non-attendance to a patient
contrary to the ethics of the medical profession. Although the appellant denied liability, the tribunal
found him liable and directed that his name be struck off the register of medical and dental
practitioners in Nigeria. However, the Nigerian Court of Appeal allowed the appeal on the ground
that the tribunal had not observed the principles of natural justice.

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In another Nigerian case, Denloye v Medical and Dental Practitioners Disciplinary Tribunal,
(1969) 1 All NLR 306 the appellant was charged with neglecting a patient who was seriously ill
in a prolonged manner between 29 June 1966 and 10 July 1966. The appellant was also charged
with extortion of money from the patient’s father as an inducement for him to treat the patient. The
tribunal found him guilty of infamous conduct and ordered removal of his name from the register.
However, the Court of Appeal set aside the decision of the tribunal on grounds of natural justice.

In Marko Matovu v Mohamed Sseviri, (1979) HCB 174. it was held that the cardinal rule of
natural justice is so central to Uganda’s justice system that it must be observed by both judicial
and administrative tribunals.

In the instant case, James was clearly denied a right to a fair hearing. Firstly, he received the notice
late, just one day towards the hearing which was convened in express non-compliance with the
Act. It was held before the expiry of 21 days. It has already been submitted, that the notice of
complaint was not procedurally correct brought to the attention of James.

However, despite being informed on a short notice, James reported for the hearing and the registrar
read the complaint to him and asked him to respond. James explained to the Council that he only
saw the complaint the previous night when he returned from upcountry and that he needed an
adjournment of the hearing to enable him consult his lawyer and prepare an adequate response to
the complaint. That he also needed the details of the complaint and copies of any documents that
the Kenneth intends to rely on. The Chairman of the Council adjourned for ten minutes. When
Council resumed, the Chairman read a short ruling as follows: ‘We have listened to your request
but observe that since you are the one who sent the deceased to your clinic and neglected to attend
to her, you know the facts very well. Your request for adjournment is hereby refused. The hearing
shall proceed’. James politely picked his note book, bowed to the Chair and went out of the Board
Room.

This was an express violation of James right to a fair hearing. He was denied ample time to prepare
his defence, he was denied an adjournment and the right to be represented. The hearing therefore
flouted the principles of natural justice and were procedurally irregular.

Whether the council exceeded its sentencing powers?

Under The Guidelines the following are the possible sanctions that may be imposed on a
practitioner who has been found guilty: a verbal warning; a written warning; a serious written
warning with a copy to the employer; placement on probation; suspension from practice for a
prescribed period; erasure from the register; and any other penalty the council may deem necessary
in the circumstances.

The guidelines further note that that the Council cannot order the respondent to make any financial
restitution to the complainant.

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In this case, the council ordered that the registrar remove the doctor from the register. He was also
sentenced to imprisonment of one year and a fine of 10 million shillings, which should be paid to
Kenneth to enable him look after the kids.

The imprisonment and financial restitution orders are in excess of the penalties that can be imposed
by the council.
From the above, it is concluded that the procedure leading to the convening of the meeting was
irregular, the hearing did not adhere to the principles of natural justice and the council exceeded
its punitive powers.

Remedies available to James.

Sec 38(1) of the Act grants a person who is aggrieved by the decision of the council a right to
appeal to the High Court within 90 days from the date of notification of the decision of the council.

It should be noted that according to the Act, Sec 38(2), the Chief Justice is mandated to make rules
regulating appeals to the High court. Unfortunately these regulations have not been made. In
Tumukurate Espildon v Uganda Medical and Dental Practitioners’ Council, High Court Civil
Appeal 1999 (unreported) counsel for the defendant argued that since the rules had not been made,
the appellant could not challenge the decision of the respondent. In dismissing the objection, the
court held that absence of the rules does not deprive an aggrieved party of a remedy. The court
was of the view that the Constitution commands the court to ‘administer justice without undue
regard to technicalities’ under Art 126(2)(e) of the Constitution. In any case, according to the
Judicature Act, under Sec 33 of the Judicature Act, cap 13, the High Court shall in exercise of its
jurisdiction, grant ‘all such remedies as any of the parties to a cause or matter is entitled to in
respect of any legal or equitable claim properly brought before it.’

In this case, James can appeal the decision of the council to the High Court within 90 days seeking
judicial review of the decision for orders of certiorari, mandamus and prohibition.

Public health law can play a critical role in the promotion and protection of public health.
However any law aimed at advancing the goals of public health should not unduly burden
human rights. Discuss the above statement with close reference to any public health legislation
in Uganda.

PUBLIC HEALTH LAW AND HUMAN RIGHTS;

The following notes are based on Prof. Twinomugisha’s book on Health and other materials.

[Public] [h]ealth legislation can be an important vehicle towards ensuring the promotion and
protection of the right to health. In the design and review of health legislation, human rights

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provide a useful tool to determine its effectiveness and appropriateness in line with human rights
and public health goals. (WHO 25 questions on health and human rights (2002) 23.)

The WHO has observed that appropriate legislation is fundamental to the promotion and protection
of public health.47
Legislation is necessary to protect and promote the health of populations; sustain health
policies and programmes; fight new and re-emerging communicable diseases; support the
development of health systems; and combat continuing poverty, inequalities in health and
discrimination.

The government has an obligation to develop laws that enhance the promotion and protection of
this right. Uganda has many laws with a bearing on public health. However, most of them are
antiquated and outmoded in ways that curtail their effectiveness and conformity with modern
standards in the area of public health. The laws are mostly disease specific and do not adequately
address the underlying conditions of health and the relevant public health infrastructure. They do
not reflect the contemporary understanding of disease and injury. In fact, public health law in
Uganda generally lags behind the public health policy framework, which attempts to address the
different health risks that affect the population. Most of public health legislation in Uganda is
piece-meal and multi-layered and contains weak enforcement mechanisms, all of which may
undermine its effectiveness in the protection of public health.

Against this backdrop, this chapter uses the framework of public health and human rights, to
examine some of the public health legislation with a view of finding out the extent to which they
balance the goals of promoting public health without unduly undermining internationally and
constitutionally recognised human rights and freedoms..

What is Public Health.

In the first part of the 20th century, Winslow defined public health as,
the science and art of preventing disease, prolonging life and promoting physical health and
efficiency through organized community efforts for the sanitation of the environments, the control
of community infections, the education of the individual in the principles of personal hygiene, the
organization of medical and nursing service for the early diagnosis and preventative treatment of
disease, and the development of social machinery which will ensure to every individual in the
community a standard of living adequate for the maintenance of health.48

The Institute of Medicine defines public health as ‘what we as a society do collectively to assure
the conditions in which people can be healthy’.49 Acheson also defines public health as ‘the science
and art of preventing disease, prolonging life and promoting, protecting and improving health
through the organized efforts of society’.50

47
WHO ‘Health and human rights’ http://who.int/hhr/health_law/health
48
CEA Winslow ‘The united fields of public health’ (1920) 51 Science (1306) 30.
49
Institute of Medicine The future of public health (1988) 19.
50
D Acheson Committee of inquiry into the future development of the public health function

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Turnock defines public health as

a ‘collective effort to identify and address the unacceptable realities that result in preventable and
avoidable health outcomes, and it is the composite of efforts and activities carried out by people
committed to these ends’.51

The above definitions illustrate the point that public health is multifaceted and is at times a
contested concept.11 It covers many factors that affect health, including the natural and built
environment, sanitation, smoking, pollution, and hygiene. It also covers key factors that affect the
quality of life such as preventive and curative health care, income, societal inequalities, availability
of employment, nutrition, education, domestic violence and general socio-economic well-being of
the people.

According to Gostin; Public health concerns the health of populations or at least larger groups of
persons rather than the clinical improvement of individual patients.52 The major objective of public
health interventions is to prevent and manage diseases, injuries and other health conditions.

What is public health law.

According to Tobey, public health law may be defined as ‘that branch of jurisprudence which
treats the relation and application of the common and statutory law to the principles and procedures
of hygiene, sanitary science, and public health administration’.53

Gostin aptly defines public health law as,

the study of the legal powers and duties of the state, in collaboration with its partners (e.g. health
care, business, the community, the media, and academic), to ensure the conditions for people to be
healthy (to identify, prevent, and ameliorate risks to health in the population), and of the limitations
on the powers of the state to constrain for the common good the autonomy, privacy, liberty,
proprietary, and other legally protected interests of individuals. The primary objective of public
health law is to pursue the highest possible level of physical and mental health in the population,
consistent with the values of
social justice’.54

Twinomugisha finally defines public health law as that branch of health law that empowers the
government to discharge its obligations to promote and protect the health and safety of the
population. It delimits the functions and powers of government agencies and specifies the ways in
which they may exercise their authority for the purposes of assuring the conditions for the public’s
health. In the exercise of its powers, the government must ensure that the rights and freedoms of

(1998) 50.
51
BJ Turnock Public health: What it is and how it works (2001) 19.
52
LO Gostin ‘Public health law: Power, duty and restraint: A resource guide’ (1999) http://www.turningpointprogram.org
53
AJ Tobey Public health law (1947) 4.
54
LO Gostin ‘Public health law: Power, duty and restraint: A resource guide’ (1999) http://www.turningpointprogram.org

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individuals and groups in society may be restricted or limited only in circumstances permitted by
the law55

Relationship between Public health and human rights

Human rights are the basic rights and freedoms to which all human beings are entitled basically
because they are human. Human rights treat all people as equal and are universal, interdependent,
indivisible and interrelated.56 They cover all categories of civil, economic, political, social and
cultural rights and include: human dignity, the right to life, the right to health, the right to property,
access to food and water, liberty, nondiscrimination and equality, privacy, autonomy and integrity,
freedom of movement, freedom of expression and assembly and the right to work.
It is increasingly recognised that the fields of public health and human rights complement each
other and share the same goal: the advancement of human well-being57. Public health ‘is concerned
with promoting and protecting health – in other words, physical, mental, and social well-being –
and with preventing or reducing morbidity (illness, disability, or suffering) and premature
mortality’.58

Human rights such as the right to health are also concerned with promoting the health and well-
being of individuals and populations. Human rights violations such as torture, degrading and
inhuman treatment or denial of health care may have serious health impacts, including loss of life.
Progress in tackling public health challenges will most likely contribute to improvement in the
realisation of the right to health. Thus, each is dependent on the other to improve the human
condition. However, it cannot be denied that public health and human rights may conflict in
approach. Whereas the human rights based approach (HRBA) emphasises respect for individual
rights and freedoms such as liberty, privacy and autonomy, public health may employ mandatory
and coercive measures, such as compulsory examination, compulsory quarantine, compulsory
isolation and detention of infected persons. These measures may have serious implications for
individual rights and freedoms.

The Committee on ESCR in General Comment No. 20 has stressed that discrimination, which is
an immediate and cross-cutting obligation in the CESCR, undermines the fulfilment of economic,
social and cultural rights. Thus, states parties should eliminate all forms of discrimination in the
realisation of economic, social and cultural rights such as the right to health. The state should
ensure that any public health legislation does not discriminate on prohibited grounds, including
health status and sexual orientation. States parties should ensure that a person’s sexual orientation
or actual and perceived health status are not barriers to realising the rights in the
CESCR. The Committee on ESCR has further noted that although the protection of public health
is often cited by states as a basis for restricting human rights in the context of a person’s health

55
Twinomugisha; Fundamentals of Health Law in Uganda
56
United Nations Human Rights (UNHR) ‘Vienna declaration and programme of
action’ Adopted by the World Conference on Human Rights in Vienna 25 June 1993
http://www.ohchr/enprofessionalinterest/pages/vienna.aspx
57
JA Mann et al Health and human rights: A reader (1999) 11
58
ibid

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status, many such restrictions are discriminatory. Thus, states parties should adopt measures to
address widespread discrimination of persons on the basis of their health status.59

It should be noted that the limitation of human rights for protection of public interest, which
includes public health, is permitted by the human rights framework, in very narrow circumstances.
According to the Universal Declaration, Art 29(2).

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations
as are determined by law solely for the purpose of seeking due recognition and respect for
the rights and freedoms of others and of meeting the just requirements of morality, public
opinion and the general welfare in a democratic society.

According to the ICCPR, art 9. no one shall be subjected to arbitrary arrest or detention’ and.‘[n]o
one shall be deprived of his liberty except on such grounds and in accordance with such procedure
as are established by law’. Coercive measures should be used sparingly and as a last resort.

The CESCR Art 4 also provides that,

[t]he States Parties to the present Covenant recognize that, in the enjoyment of those rights
provided by the State in conformity with the present Covenant, the State may subject such
rights only to such limitations as are determined by law only in so far as this may be
compatible with the nature of those rights and solely for the purpose of promoting the
general welfare in a democratic society.

The Siracusa Principles have elaborated on the scope of limitation of human rights and
freedoms.34 According to these principles, the limitation or restriction must meet the following
conditions:
• The limitation must be justified by the protection of a legitimate goal such as ... protection of
public health ...;
• Limitations can be allowed only in a democratic society which presumes a participatory process
and capacity of redress;
• A right may be limited only if the limitation is provided by law;
• The limitation of rights must be strictly necessary in order to achieve the public good, which
must be carefully assessed on a case-by-case basis;
• The limitation of individual rights must be proportional to the public interest and its objective;
• The limitation must be the least intrusive and least restrictive measure available which will
accomplish the public health goal; [and]
• The limitation of rights must be applied in a non-discriminatory manner.60

Thus, in the context public health legislation, the Siracusa Principles provide a normative
framework for mediating between a state’s powers to protect public health, and the human rights
and freedoms of individuals. The principles were drafted in response to concerns about the

59
General Comment 20 ‘Non discrimination in economic, social and cultural rights (art 2, para 2 of the International Covenant on Economic,
Social and Cultural Rights) Forty-Second Session, Geneva, 4-22 May 2009, Agenda item 3, E/C.12/GC/20.
60
The Siracusa Principles on the limitation of and derogation provisions in the international covenant on civil and political rights,
E/CN.4/A985/4.

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violation of individual human rights that may occur when a state acts to protect the public good by
limiting the rights of an individual. The Siracusa Principles aim at balancing the rights of the
individual versus the state’s interest in ensuring the well-being of the larger population.

In Media Rights Agenda & Others v Nigeria the African Commission also observed that the
limitation must be necessary or acceptable in a democratic society and not render the right illusory.
The Commission held that the onus is on the state to prove that the limitation is justified. In Article
19 v Eritrea, it was held that the limitation of rights must be consistent with international law and
that ‘… only restrictions which are consistent with the Charter and with the states parties’
international obligations should be enacted by the relevant national authorities’.

According to the Ugandan Constitution, derogation of human rights is prohibited only in respect
of: (a) freedom from torture and cruel, inhuman or degrading treatment or punishment; (b) freedom
from slavery or servitude; (c) the right to a fair hearing; and (d) the right to an order of habeas
corpus. Albeit the Constitution guarantees personal liberty, a person may also be deprived of this
right: ‘for the purpose of preventing the spread of an infectious or contagious disease’ (Art 23(1)(d)
of the Constitution) and this may involve solitary confinement, quarantining, destruction of
property, and other mandatory and coercive measures. A person may also be deprived of liberty if
he or she ‘is, or is reasonably suspected to be, of unsound mind or addicted to drugs or alcohol,
for the purpose of the care or treatment of that person or the protection of the community’
(Art23(1)(f) of the Constitution). However, derogation or limitation of any right must not be
‘beyond what is acceptable and demonstrably justifiable in a free and democratic society’.

In Charles Onyango Obbo & Another v AG,51 a case concerning freedom of expression, the
Supreme Court of Uganda stated as follows:
Protection of the guaranteed rights is a primary objective of the Constitution. Limiting their
enjoyment is an exception to their protection, and is therefore a secondary objective.
Although the Constitution provides for both, it is obvious that the primary objective must
be dominant. It can be overridden only in the exceptional circumstances that give rise to
that second objective. In that eventuality, only minimal impairment of enjoyment of the
right, strictly warranted by the circumstance is permissible.

On the standard of limitation of rights, the Court observed that under article 43(2) of the
Constitution, ‘democratic values and principles are the criteria on which any limitation on the
enjoyment of rights and freedoms guaranteed under the Constitution has to be justified’. On the
meaning of the phrase ‘free and democratic society’, Mulenga JSC cited the Canadian case of R v
Oakes, where the Supreme Court of Canada, in interpreting the limitation clause in the Canadian
Charter on Rights and freedoms, which is similar to that in the Ugandan Constitution, stated as
follows:
Inclusion of these words (‘free and democratic society’) as the final standard of justification
for limits on rights and freedoms refers the court to the very purpose for which the Charter
was originally entrenched in the Constitution: Canadian society is to be free and
democratic. The court must be guided by the values and principles essential to a free and
democratic society, which I believe embody, to name but a few, respect for the inherent

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 dignity of the human person, commitment to social justice and equality … The underlying
values and principles of a free and democratic society are the genesis of the rights and
freedoms guaranteed by the Charter and the ultimate standard against which a limit on a
right or freedom must be shown … to be reasonable and demonstrably justified … The
onus of proving that a limit on a right or freedom is reasonable and demonstrably justified
in a free and democratic society rests upon the party seeking to uphold the limitation.

It can be seen from the above discussion that any legislation that seeks to promote and protect
public health may limit rights and freedoms only in exceptional circumstances. As Mulenga JSC
observed in Onyango Obbo case above, the test of what is acceptable and demonstrably justifiable
for the purposes of limitation is objective and not subjective. The test must conform to what is
universally accepted to be a free and democratic society since there can be no varying degrees of
democratic societies.

PUBLIC HEALTH ACT.

The main legislation regulating public health in Uganda generally and infectious or communicable
diseases in particular is the Public Health Act, which seeks to ‘consolidate the law regarding the
preservation of public health’.

The Act is big and is divided into sixteen parts; interpretation, administration, notification of
infectious diseases, prevention and suppression of infectious diseases, special provisions regarding
certain epidemic diseases, prevention of introduction of infectious diseases, small pox, venereal
diseases, sanitation and housing, special provisions as to sewerage and drainage, prevention and
destruction of mosquitoes, protection of foodstuffs, water and food supplies, cemeteries and
general and miscellaneous provisions.

Under part III of the Act, the Minister may by statutory order declare any infectious disease a
notifiable disease for the purpose of the Act. An infectious disease is defined as ‘any disease which
can be communicated directly or indirectly by any person suffering from it to any other person’.Sec
1. The Minister may make rules in respect of the notification of the disease as to, inter alia, duties
of medical practitioners, heads of families, head teachers, and local authorities in handling the
disease. Sec 10(a) - (j).

Under part IV of the Act a medical officer of health is empowered to inspect premises where he
has reasonable grounds to believe that any person(s) suffering from an infectious disease has or
have resided on the premises.S.12. Such person(s) may be compulsorily medically examined by
the medical officer who may order the destruction of buildings and articles therein provided that
the local authority shall provide reasonable compensation. S. 13. The medical officer may also
recover the expenses incurred from the owner or occupier as a civil debt.

Part V of the Act deals with certain epidemic or endemic diseases, which include smallpox,
plague, Asiatic cholera, yellow fever, cerebrospinal meningitis, typhus, sleeping sickness or

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human trypanosomiasis and any other disease which the Minister may by statutory order declare
to be a formidable epidemic disease for the purpose of the Part of this Act. S. 28

The Minister may make rules for inter alia, the speedy interment of the dead; house to house
visitation; provision of medical aid and accommodation; preventing a person from leaving any
infected area; destruction of rats and mosquitoes; and the destruction of infected property. S. 29

From a public health point of view, some of these measures are critical in enabling the Minister to
quickly act in case of an outbreak of a disease in a specific area. It may be argued that compulsory
measures for patients suffering from some communicable diseases such as TB, typhoid, yellow
fever or cholera may be aimed at a legitimate objective: to protect the community from infection.
The measures may thus be relevant to the general interest and well-being of the entire population.

However, implementation of the above measures may have serious implications for human rights.
The measures may adversely affect a number of human rights, including freedom from torture,
cruel, inhuman and degrading treatment, privacy, confidentiality, the right to refuse medical
treatment and bodily integrity. The measures taken may even increase stigma and discrimination
against a person(s) suffering from such a disease. Since the rules made by the minister may be
hurriedly made due to the urgency of the matter, it is even not clear whether they would meet the
necessary procedural safeguards for limitation of rights as discussed above. It is necessary to
ensure that the rules describe the individuals to be subject to any compulsory examination and
treatment measures. The rules should also contain mechanisms to monitor confinement or
treatment to ensure that it was carried out safely and humanely. It is also vital that the rules
provide patients, who have been deprived of their liberty, with the opportunity, including legal
representation to challenge the legality of their detention

Part VII of the Act deal with compulsory vaccination of children and persons in or entering Uganda
against small pox. A child is defined as a person who is under or appears to be under eighteen
years of age. This raises the question; how do you determine that a person is a child and thus
qualifies for vaccination simply through appearance? According to the Act, upon successful
vaccination, the public vaccinator or a medical practitioner issues out a certificate of vaccination.
Admission of children into school is subject to production of this certificate as per S. 45(1). From
a public health perspective, this provision promotes child health through immunization against
small pox.

Part VIII of the Act deals with venereal diseases, which include primary or secondary syphilis in
its contagious forms, acute and chronic gonorrhoeal opthalmia, soft chancre, lympho granuloma
inguinale, granulaoma venereum and any other disease that may be declared by the Minister by
statutory instrument as a venereal disease. S. 49

The Act also bars the employment of a person suffering from a venereal disease and provides as
follows:
Every person who, while suffering from any venereal disease in a communicable form,
accepts or continues in employment either as an employee or on his or her own account in
or about any factory, shop, hotel, restaurant, house, or any place in any capacity entailing

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 the care of children, or the handling of food intended for consumption, or food utensils for
use by any other person, commits an offence, unless he or she proves that he or she did not
know or suspect, and had no reasonable means of knowing or suspecting, that he or she
was so suffering. S. 50

A person who employs a person suffering from a venereal disease in the circumstances outlined
above also commits an offence and is supposed to summarily dismiss the employee with payment
of wages up to the date of dismissal. S. 50(2) These draconian and obnoxious provisions violate
the right of every person to work and ‘to practice his or her profession and to carry out any lawful
occupation, trade or businesses’. The provisions also violate the principles of equality and non-
discrimination on grounds of health status. They contravene employment laws which prohibit
discrimination and stigma in the work place.

The provisions may be abused by an overzealous minister who may declare HIV/AIDS a venereal
disease, and subject its prevention and management to these onerous provisions since it is also
largely spread through sexual contact. This may exacerbate HIV/AIDS related stigmatisation and
discrimination contrary to the advice by UNAIDS Guidelines 3 that states should ensure that public
health law provisions ‘applicable to sexually transmitted diseases are not inappropriately applied
to HIV and that they are consistent with international human rights obligations.’ The Employment
Act also calls for promotion of ‘equality of opportunity, with a view to eliminating discrimination
in employment’ and expressly outlaws discrimination on grounds of HIV status. S. 6(3)

The question of discrimination of PLHA in the work place was considered in the South African
case of Hoffman v South African Airways. Where the applicant was challenging the practice of
South African Airways of not allowing employment of PLHIVs as cabin crew members. In this
case, the appellant applied for employment as a cabin attendant with SAA. He went through a four-
stage selection process comprising a pre-screening interview, psychometric tests, a formal
interview and a final screening process involving role-play. At the end of the selection process,
the appellant, together with eleven others, was found to be a suitable candidate for employment.
This decision, however, was subject to a pre-employment medical examination, which included a
blood test for HIV/AIDS. The medical examination found him to be clinically fit and thus suitable
for employment. However, the blood test showed that he was HIV positive. As a result, the medical
report was altered to read that the appellant was “H.I.V. positive” and therefore “unsuitable”. He
was subsequently informed that he could not be employed as a cabin attendant in view of his HIV
positive status.
The appellant challenged the constitutionality of the refusal to employ him solely on account of
his HIV status. He argued that the refusal constituted unfair discrimination, and violated his
constitutional right to equality, human dignity and fair labour practices. The Constitutional Court
held that the denial of employment to the appellant because he was living with HIV impaired his
dignity and constituted unfair discrimination. Exclusion of an HIV-positive individual from
employment solely on the basis of HIV positivity cannot be justified.

It is necessary to read Part VIII of the Public Health Act together with the Venereal Diseases Act,
which provides for the examination and treatment of persons infected with venereal diseases. The
Act provides for compulsory medical examination: it empowers any medical officer of health to
require ‘any person whom he or she knows or reasonably suspects to be infected with [a] venereal

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disease to submit himself or herself to medical examination’. The medical officer may enter a
person’s premises for purposes of requiring such a person to undergo medical examination. If the
person is found to be positive, he or she is put on treatment and may be detained for such a time
as the medical officer may determine The Act requires a person who in the opinion of a medical
officer or health inspector is suffering or has recently suffered from or is a carrier of a venereal
disease to name the person who infected him or her. Failure to comply with this requirement
amounts to an offence, attracting a penalty of a fine not exceeding 2000 shillings or imprisonment
for a period not exceeding six months or both. A person who has been treated of a venereal disease
may also be required to undergo periodic medical tests for purposes of ascertaining whether he or
she is free from the disease.

Failure to undergo such tests amounts to an offence and attracts a fine of not more than 2000
shillings or imprisonment not exceeding six months or both. Any person who ‘unlawfully or
negligently does any act which is and which he or she knows or has reason to believe to be likely
to spread the infection of a venereal disease’; or knowingly harbours that disease; or maliciously
reports a person as having infected him or her, commits an offence and shall be liable to the
foregoing punishment.

The provisions of the Act are counterproductive both from public health and human rights
perspectives. From a public health perspective, the provisions may divert attention from more
feasible measures to combat the spread of STIs by scaring away people from voluntary testing,
counselling and treatment. It is necessary to encourage people to voluntarily seek testing services,
disclose their status and practice safer sex without fear of stigma and discrimination. Disclosure
can reveal intimate or private details about an individual’s health status, which may lead to
negative consequences such as stigma and discrimination, violence, sexual exclusion and
isolation. The Act does not contain any safeguards ensuring that the medical officer does not
disclose a person’s health status to his or her partner. Disclosure to a person that his or her spouse
or partner has a venereal disease may lead to violence. There is even no scientific evidence to
show that criminalisation of STIs has ever rehabilitated or deterred offenders. Coercive
approaches are counterproductive especially when dealing with STIs whose prevention,
management and control largely involve the modification of behaviour.

The Act violates many rights such as privacy and confidentiality, security of the person, the right
to health and freedom from cruel, inhuman and degrading treatment. More progressive
enforcement mechanisms such as public awareness may be more productive than criminal
sanctions. People need to be educated about the benefits of practicing safer sex through for
example the use of condoms in order not to spread the so-called venereal diseases. Good public
health legislation to tackle STIs necessitates use of the best available evidence as a basis of its
enactment. Prevention of the STI should be the primary objective of the legislation, which must
respect human rights. Any infringement of human rights of persons suffering from STIs must be
sufficiently justified.

Part VIII of the Act contains a provision which could be used by the Ministry of Health or the
National Drug Authority (NDA) to deal with misleading and deceptive advertisements, which are
likely to endanger public health. The Act S. 51(1) provides as follows:

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 No person shall publish, exhibit or circulate any advertisement or statement intended to
promote the sale of medicine, appliance or article for the alleviation or cure of any venereal
disease or disease affecting the generative organs or functions, or of sexual impotence, or
for any complaint or infirmity arising from or relating to sexual intercourse.

It should be noted that a number of advertisements in some tabloids in the country such as Red
Pepper87 for example, claim to administer ‘concoctions’ for manhood enlargement, treatment of
premature ejaculation, gonorrhoea, syphilis, tightening women’s private parts, and manpower
boosting. Such concoctions may be injurious or dangerous to health since there is no scientific
evidence to show that they work as alleged.

Part IX of the Act deals with sanitation and housing related issues and prohibits certain nuisances
that affect public health. The Act provides under S. 54 that no person shall cause a nuisance or
shall suffer to exist on any land or premises owned or occupied by him or her or of which he or
she is incharge, any nuisance or other condition liable to be injurious to health. According to
Blackstone, a nuisance or annoyance signifies anything that works hurt inconvenience or damage.
Nuisances are of two kinds, public or common nuisances which affect the public and private
nuisances which interferes with an individuals enjoyment of property. Thus Public nuisances
interfere with public health by threatening the health and safety of the community.

According to the Act, it is the duty of every local authority to mainatian cleanliness and prevent
nuisances. Secs. 55 and 56 though the Act does not define a nuisance, it provides examples of what
it constitutes. These include vehicles or buildings in a state or condition injurious or dangerous to
health, overgrown bushes, noxious matter or substances, collections of water, sewage and rubbish,
and pollution related issues such as factories workshops or trading premises and discharge of
offensive smell. S. 57. An author of a nuisance can be ordered by court to bate the nuisance and
failure to obey is criminal. S. 61.

Under the Act every local authoriuty has a duty to take all lawful means, necessary and reasonably
practical measures for preventing water pollution that is dangerous to health and for purifying any
polluted water supply. S. 103

The Act also contains provisions that may be used in the fight against malaria, which is one of the
leading causes of mortality in the country. The minister is empowered to make rules for the
purposes of destruction of mosquitoes. S.29(j). Part XI is dedicated to the prevention and
destruction of mosquitoes . This part imposes obligations on owners and occupiers of premises to
clear bushes and ensure that yards, cessipts and wells do not become breeding places for
mosquitoes. Secs 93-100. It is commendable that the Act provides for the destruction of
mosquitoes which transmit malaria. However, it does not cover other critical goods and services
such as mosquito nets and anti-malarial treatment and care.

The Act has a number of weaknesses, which may render it ineffective in the protection of the public
health. In the first place, the Act is generally obsolete having not kept pace with rapid and extensive
changes in science and technology in the areas of prevention, treatment and care. For example, it
only focuses on infectious or communicable diseases, yet noncommunicable diseases (NCDs) are

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a public health concern. NCDs include hypertension, cardiovascular diseases, diabetes, chronic
respiratory diseases, mental illness, cancer conditions, injuries, and oral diseases. In respect of
child health, the Act provides for immunization against small pox, which was eradicated from the
country, but does not address other child killer diseases such as measles, tetanus, diarrhoea and
pneumonia.

On maternity and child welfare, the Act provides that the minister may make rules for the proper
control of clinics or institutions open or kept open by any person for the welfare and care of
children or the care of expectant or nursing mothers. S. 117. Albeit this is a good provision, there
are more challenges to maternal and child health beyond the mere opening of facilities.Tthe Act
does not address critical sexual and reproductive health care goods and services such as family
planning, antenatal, labour and delivery care, especial emergency obstetric care (EmOC). It also
does not cover sexual and gender based violence (SGBV), which is a serious public health and
human rights issue.

Another major weakness of the Act is the over reliance on criminal sanctions as an enforcement
mechanism. It cannot be denied that criminal law is a powerful tool that may serve various societal
interests and may express a collective social view that a particular behaviour is wrong. Criminal
law may also be a means through which a social group validates its views. One of the functions of
punishment is to make criminals internalise the social and economic cost of their action. Penal
sanctions are supposed to deter the criminal and others from committing similar crimes

However, as Gostin has aptly noted,

[p]robably the most important goal of the criminal law in the context of a disease epidemic
is deterrence. The best that can be hoped for is that the threat of criminal sanctions will
prevent people from taking unreasonable risks that could transmit the virus. The criminal
law is not a likely vehicle for deterring such behaviour. In most cases where the criminal
law has been used … there was no motive or advance planning. Spontaneous behaviour
driven by human anguish, despair or passion is difficult to prevent.61

Apprehending criminals is very costly: it requires manpower, considerable time and other
resources. Thus, a sentence or fine imposed on the criminal should be punitive enough: equivalent
to the social cost of the crime.

However, the penalties under the Act are not punitive enough to achieve their intended purpose.
The fines under the Act range from 80 Uganda shillings to 2000 Uganda shillings. Although these
amounts may have been reasonable when the Act was enacted, they are now worthless and are
certainly not equivalent to the injury or damage to public health. In any case, enforcement of
certain penal provisions may threaten some human rights. For example, penalising a person who
has refused or failed to disclose to an employer that he or she has a venereal disease threatens the
right to privacy and the right to health. Such persons who are mandatorily required to disclose their
health status may be driven underground and not access health care services. Legislative
approaches to a public health challenge must ensure that they respect individual human rights and
freedoms and any restriction should be a last resort.
61
L Gostin ‘The Politics of AIDS’ (1989) 49 Ohio State Law Journal 1019 1017.

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The HIV and AIDS Prevention and Control Act,
HIV/AIDS remains a significant public health challenge for Uganda. In spite of years of success
in tackling the HIV/AIDS epidemic, HIV prevalence has increased from 6,4 per cent in 2005 to
7,3 per cent in 2011.

As per 2012, the HIV prevalence was at 7.3% and it was higher for women than for men. Despite
the commendable efforts Uganda has taken to reduce the prevalence rate from 29% in 1982 to
single digit figures by late 1990’s, HIV prevalence grew from 6.5% in 2006 to 7.3% by end of
2016. Government of Uganda has employed varied strategies to address this problem including
the multipronged ABC approach, ARVs, PMTCT, encouragement of voluntary testing, safe male
circumcision (SMC), and enactment of legislation. However, with the increase in Anti-Retroviral
Therapy (ARTs), so has complacency grown towards the disease, resulting into low use of
condoms and more persons reporting having more than one sexual partner today than in the 1990’s.
According to the UNAIDs report (2016), 43% of new HIV infections were among heterosexual
married couples.

Currently the HIV situation in Uganda calls for renewed and urgent action. This was highlighted
at the end of a UNAIDS Global Review Mission to Uganda, which held multi stakeholder
consultations in Uganda 21st to 23rd of February 2017. Young people, especially girls aged
between 15 and 24, are disproportionately affected by HIV infection. Among adolescent girls;
every single hour, 2 young women are getting infected with HIV in Uganda. The prevalence of
HIV among adolescent girls stands at 9.1 percent, compared to the national prevalence rate of 7.3
percent. Uganda registers 230 HIV new infections a day. Despite widely available anti-retroviral
therapy, 76 people die of AIDS-related causes every single day

There is no doubt that law plays an important role in HIV prevention work. Legislative approaches
to prevention of HIV transmission have been used in a number of jurisdictions since the emergency
of the HIV epidemic in the 1980s.The strategies employed to tackle HIV have been both protective
and punitive towards PLHA.
Against this backdrop, the HIV and AIDS Prevention and Control Act, 2014, which was introduced
in 2010 as a private member’s bill,103 aims at providing for a legal framework that attempts to
achieve the objectives of public health. The Act is geared towards the prevention and control of
HIV and reducing its transmission. However, the question is whether this law is likely to facilitate
or may be a barrier to effective HIV prevention efforts.

Giving credit where it is due: Does the Act meet public health and human rights goals?

There is no doubt that the Act contains a number of progressive provisions, which can be justified
from public health and human rights perspectives. The Act provides for pre and post HIV testing
and counselling services, which is an entry point to treatment, care and support of PLHA.

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In some jurisdictions, testing and counselling have been said to be essential Ingredients of
informed consent. For example, in the South African case of C v Minister of Correctional Services,
the High Court found that the
Johannesburg prison did not comply with the national strategy regulating HIV and AIDS in
prisons. The plaintiff was awarded damages because the prison deviated from the norm of
informed consent and the lack of pre-test counselling. It was held that the norm of informed
consent contains a requirement of pre and post testing counselling.

The Act creates government obligations towards HIV management, makes provision for the
protection of rights of PLHA. It obliges the state to formulate and implement a national public
health strategy and plan of action for HIV and to provide treatment, care and support to all persons
on a non-discriminatory basis. S. 24. The Act also prohibits discrimination in the workplace and
in schools on grounds of health status. Secs 32 & 33. It provides guidelines within which bio-
medical research on HIV should be conducted without violating the rights of the subjects
participating in the research. Secs 29 & 30.

The Act establishes a HIV and AIDS Trust Fund, in order ‘to secure a predictable and sustainable
means of procuring goods and services for HIV and AIDS counselling, testing and treatment.’ Secs
25 and 26. The Act guarantees confidentiality of HIV results, which shall ‘only be disclosed or
released by a medical practitioner or other qualified officer to the person tested’ Sec 18(1).. The
Act also creates offences such as breach of medical confidentiality,(S.40) wilful and unlawful
breach of provisions relating to safe procedures and practices, (Sec 42(1) & (2).) and misleading
information or statement on the cure of HIV/ AIDS. (S.45)

HIV and AIDS control strategy: The use of criminal law

The Act contains a number of draconian provisions, which are likely to worsen the HIV prevalence
in the country generally and undermine the human rights of PLHA in particular. Unlike the 2012
East African Community HIV/AIDS Prevention and Management Act, which adopts a
management approach, the Act employs a control strategy and has the potential to increase stigma
and discrimination against PLHA.

Attempted transmission of HIV

The Act criminalises attempted transmission of HIV to another person but does not define the
offence. (S. 41)This contravenes the Constitution, which provides that ‘[e]xcept for contempt of
court, no person shall be convicted of a criminal offence unless the offence is defined’ (Art 28(1)
of the Constitution.). In any case, how does the state prove ‘attempted transmission’? The
prosecution will certainly find it difficult, if not impossible to obtain evidence that a person
attempted to transmit HIV in order to secure a conviction. This overly broad provision is vague
and may lead to arbitrary application and misuse. For example, a parent or guardian could simply
call the police upon seeing his or her adult daughter or son in a conversation with a PLHA or
suspected of being HIV positive.

It is extremely necessary for legal provisions that create offences to be well defined and
unequivocal in accordance with the principle of legality, which amongst other things requires that
a law should be clear and precise enough to be understood.

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In the Kenyan case of AIDS Law Project v Attorney-General & Others, the petitioner challenged
the constitutionality of section 24 of the HIV/AIDS Prevention and Control Act 14 of 2006 on
grounds that it is vague and extreme and thus offends the constitutionally protected principle of
legality. The relevant section requires a person infected with HIV/AIDS to reveal his or her status
to his or her sexual contact and where that person fails to do so, a medical practitioner may disclose
such information to the contact. The petitioner argued that the law is vague and extreme because
words such as ‘sexual contact’ are not defined. That the law does not provide what is contained in
‘sexual contact’; whether it includes kissing, holding hands, exploratory contact or penetrative
intercourse. That the provision discriminates against PLHA and violates article 27(1) and (4) of
the Constitution, which guarantees that every person is equal before the law and has the right to
equal protection and the benefit of the law. The court also observed that the section is likely to
undermine the already existing HIV prevention methods because it will discourage people from
finding out their status. The court also observed that although human rights are not absolute, they
can be derogated from only in limits provided in constitutional and international law. The court
cited the case of Onyango Obbo above to the effect that for a limitation to be justified, it must
satisfy the criteria that it is reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom. The court held that section 24 does not meet the principle
of legality which is a component of the rule of law. That the said section is vague and overboard
and lacks certainty especially with respect to the term ‘sexual contact’.

Republic v Cidreck 1995

In this case, prosecution sought to enhance the rape sentence on the sole basis of an increase in the
HIV scourge in Malawi. Court rejected the argument that rape sentences should be enhanced on
the sole basis of ones HIV status. “The argument that the sentence should be enhanced because
there is now the AIDS epidemic in our society is unacceptable. A sentence should be enhanced if
there is proof that the victim has thereby contracted the virus which causes the disease or that the
rapist is HIV positive.”

Intentional transmission of HIV

The Act also criminalises wilful or intentional transmission of HIV. (Sec 43) It is certainly not
good to intentionally infect a person with HIV or any other disease. Where an individual
maliciously and intentionally transmits or exposes another to HIV infection with the express
purpose of causing harm to that person, the perpetrator should face the wrath of the law.

However, the provision is not necessary since the Penal Code Act already contains sufficient
provisions on assault, homicide and causing bodily harm to address criminal acts. The provision
contravenes the UN International Guidelines on HIV/AIDS and Human rights, Guideline
21(a), which urge states to ensure that ‘criminal and or public health legislation should not include
specific offences against the deliberate and intentional transmission of HIV but rather should apply
general criminal offences to these exceptional circumstances’. From an evidential point of view,
it may be difficult, if not impossible, for the prosecution to prove who between the two partners
was infected first or who caused the transmission. Thus, how do you determine who infected
another? Are there modalities of determining how long a person would have lived with the virus?

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The state must prove that HIV was transmitted by the accused in order to secure a conviction.
Proving that the accused knew that they had HIV and that they understood how it is transmitted is
critical to the determination of legal culpability.

The provision may deflect attention from measures that are more urgently needed to combat the
HIV epidemic. The provision demonises and stigmatises individuals living with HIV. One may
ask: why criminalise HIV and not any other equally dangerous disease such as hepatitis? Doesn’t
this tantamount to discrimination on grounds of HIV status, which the Act ostensibly seeks to
combat?

Lejony v The State 2000

The Penal Code of Botswana, as amended, provided that a person convicted of defilement
was required to undergo HIV testing before sentencing. The appellant tested positive to
HIV but there was no evidence confirming that he had HIV at the time he committed the
offence. The submission of the State that the Court of Appeal should adopt a broad
interpretation which makes the person convicted for the offence liable of rape or defilement
to the enhanced punishment of 15 years, whether he had the HIV syndrome at the time of
the offence or not was rejected. The Botswana Court of Appeal dismissed the appeal on
the ground that the accused must be shown to have been HIV positive at the time of the
offence and not merely at the time of the test after conviction. The judge noted;
“Finally, I wish to remark that the possibility exists in this case, as always it will,
that the accused got his HIV status, if he has it, from his victim. The law does not
say that he should be punished for that.”

The extent to which criminalisation can make a significant contribution to preventing HIV
prevention is not clear. Criminalising HIV transmission may reduce the number of people seeking
to know their HIV status, thus undermining HIV/AIDS prevention, treatment, care and support
programmes. Criminalisation may also increase stigma and discrimination against PLHA. This
does not advance the primary objective of preventing HIV transmission and may actually
undermine HIV prevention efforts.

Discrimination against PLHA certainly contravenes international human rights law and the
Constitution and has been condemned in many jurisdictions. General Comment No. 20 para 33.
States The protection of public health is often cited by States as a basis for restricting human rights
in the context of a person’s health status. However, many such restrictions are discriminatory, for
example, when HIV status is used as the basis for differential treatment with regard to access to
education, employment, health care, travel, social security, housing and asylum.

For example, in XX v Gun Club Corporation & Others, the court held that discrimination against
PLHA is not permissible mainly because discrimination is an unjust act perse and the rule of law
is founded in justice, the basis of social order [and] because the right to equality, in accordance to
article 13 [of the Constitution of Colombia], places an obligation on the state to specifically protect
those who are in a position of manifest weakness.

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In Cortez & Others v El Salvador it was observed that the stigmatisation of, or discrimination
against, a person who is HIV positive can lead to reluctance to go for medical controls, which
creates difficulties for preventing infection. In any case, does imprisoning a PLHA prevent him or
her from spreading the virus? What about through high-risk behavior with other prisoners?

According to; WHO; Policy Brief on Sexual Health, Human Rights and the Law 2015;
Criminal law is also used to punish HIV transmission and a wide range of consensual
sexual conduct occurring between competent persons. These legal restrictions on sexual
and reproductive health services are likely to have serious implications for health..

Contrary to the HIV-prevention rationale that such laws will act as a deterrent and
provide retribution, there is no evidence to show that broad application of the criminal
law to HIV transmission achieves either criminal justice or public health goals. On the
contrary, such laws fuel stigma, discrimination and fear, discouraging people from being
tested to find out their HIV status (148–150), and undermining public health
interventions to address the epidemic. Thus, such laws may actually increase rather
decrease HIV transmission.

Various human rights and political bodies have expressed concern about the harmful
effects of broadly criminalizing the transmission of HIV International policy guidance
recommends against specific criminalization of HIV transmission. Human rights bodies as
well as United Nations’ specialized agencies, such as UNAIDS, have stated that the
criminalization of HIV transmission in the instance of intentional, malicious transmission
is the only circumstance in which the use of criminal law may be appropriate in relation to
HIV. States are urged to limit criminalization to those rare cases of intentional
transmission, where a person knows his or her HIV-positive status, acts with the intent to
transmit HIV, and does in fact transmit it.

According Report of the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health, Dainius Pūras punitive policies
and criminalization of HIV are not effective and act as a barrier to access health services, fuel
social stigma and exclusion and lead to poor health outcomes.

In Twinomugisha’s view, what is required to tackle HIV is not criminalisation but effective
prevention, protection against discrimination, reduced stigma and greater access to testing and
treatment. The success Uganda had attained in combating HIV was not through criminalisation
but aggressive information, education and communication (IEC) strategies through the
‘abstinence, be faithful and use a condom’ (ABC) approach. There is even new evidence that
antiretroviral therapy reduces HIV transmission risk. As the Global Commission on HIV128 has
cautioned,
[p]roponents of criminalisation often claim that they are promoting public health or
morality … but criminalisation guarantees no one’s well-being. There is no evidence that
laws regulating the sexual conduct of PLHIV change their behaviour in a positive way. Nor
do such laws take into account the success of ART in significantly reducing transmission
risk and improving the quality of life and longevity of PLHIV … The threat of prosecution

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 neither empowers PLHIV to avoid transmission nor motivates them to protect themselves.
Indeed, the fear of prosecution isolates them and discourages them from getting tested,
participating in prevention treatment programmes or disclosing their status to partners.

It should be noted that the accused person may raise defences to the offence of intentional
transmission. He or she may aver that ‘the person was aware of the HIIV status of the accused and
the risk of the infection and he or she voluntarily accepted the risk’. The accused may also argue
that ‘the alleged transmission was through sexual intercourse and protective measures were used
during penetration.’ S. 43

In R v Dica the appellant was diagnosed with HIV in 1995 and began treatment. He had
unprotected sex with two women, allegedly without disclosing his HIV positive status. He was
convicted of two counts of causing grievous bodily harm under section 20 of the Offences against
the Person’s Act, 1871 and subsequently appealed the conviction. The accused averred that the
women knew his status but agreed to have sexual intercourse with him.
Later both women tested HIV positive. The court observed that the ultimate question is not
knowledge but consent and that in every case where the issue arises, the question whether the
complainant did or did not consent to the risk of a STI depends on the facts of each case. The
appeal was allowed and the court ordered a retrial. It is unfortunate that the Act does not include
fear of violence, abandonment or abuse as a defence, especially for women in abusive
relationships.

Nqibi v The State 2001

This case was about the defilement of a 9 year old child. The appellant tested positive, upon
conviction and was sentenced to 15 years, on account of the HIV status. On appeal, the Botswana
Court of Appeal set aside the conviction and substituted it for 10 years reasoning that the accused
must be shown to have been HIV positive at the time of the offence and not merely at the time of
the test after conviction.

Disclosure and mandatory testing

Although the Act guarantees confidentiality of HIV results, it has a number of exceptions, which
have adverse implications for the rights of PLHA. For example, the Act empowers medical
workers to disclose a person’s HIV status,

where any other person with whom an HIV infected person is in close or continuous contact
including but not limited to a sexual partner, if the nature of contact, in the opinion of the
medical practitioner, poses a clear and present danger of HIV transmission to that person.

Disclosure of a person’s HIV status without his her consent is a clear violation of human rights
such as privacy and confidentiality and may also be abused by medical workers. The rationale for
confidentiality in the context of HIV was aptly expressed in the South African case of Van Vuuren
& Another v Kruger where the court stated that,
[t]he serious personal and social consequences of the virus for the infected person justifies
the protection of confidentiality. Such circumstances include isolation and rejection which

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 may lead to increased anxiety, depression and psychological conditions that tend to hasten
the onset of so-called full-blown AIDS.

Disclosure by medical workers of a person’s HIV status based purely on an individual opinion
represents an institutionalised form of stigma and discrimination and may increase violence
against women. It should even be noted that HIV is increasingly feminised as women and girls are
more vulnerable to infection and bear the burden for the care of the infected in addition to their
multiple gender roles. The feminization of HIV/AIDS not only reflects women’s greater
vulnerability to infection, but also their social and psychological vulnerability caused by
interrelated economic, social, legal and other factors.

The Act also provides that a pregnant woman and her partner shall be subjected to routine HIV
testing for purposes of prevention of HIV transmission. (Sec 13(b) & (c).) How will this provision
be enforced? It may be easy to test a pregnant woman who reports for ANC. But how will her
husband or partner be reached? How will the pregnant woman ensure that her partner accompanies
her for testing? It may be difficult for a sex worker, who may have multiple partners, to determine
who is responsible for the pregnancy and convince him to go for testing. In my view, it is better to
sensitise and educated men about their sexual and reproductive health responsibilities than
coercing them into compliance.

According to the Act, a person ‘who is apprehended for a sexual offence shall be subjected to HIV
testing for purposes of criminal proceedings and investigations.( Sec 12.) This provision may be
understandable where the persons apprehended are alleged to have committed for example rape,
defilement or incest. (Sec. 1) However, these offences are already catered for in the Penal Code.
There is also a possibility that this provision is targeted at female sex workers, who are alleged to
have contravened the provisions against prostitution and whose bodies are viewed by many people
as disgusting, dangerous and hazardous and likely to spread HIV and other STIs in a manner that
does not apply to their male clients. The provision in question reinforces the stigma associated
with prostitution or sex work and pushes sex workers to the margins of society. It is unfortunate
that sex workers are perceived by legislators, as carriers of disease, including HIV and other STIs.
They are addressed as law breakers instead of treating them as crucial stakeholders in the struggle
to combat the spread of HIV. Sex workers are experts on their lives. They are acutely aware of
their situation and should be involved in the development of HIV prevention strategies instead of
subjecting them to inhuman and degrading treatment.

In a study of how female sex workers negotiate their SRHRs, Prof Twinomugisha 62 found that
some of them educate their sexual partners about the benefits of safe sex. He also found that
criminalisation of sex work drives sex workers underground and prevents them from seeking
sexual and reproductive health services or other help that they may need as they fear arrest,
prosecution and at times persecution by the police. Instead of criminalising sex workers’ sexuality,

62
BK Twinomugisha ‘Beyond “malaya” or prostitute: Interrogating the sexual and reproductive health rights of young female sex workers in the
context of HIV/AIDS in Uganda’ HURIPEC Working Paper 37.

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they should be meaningfully engaged by policy makers as transformative agents in the area of
HIV/AIDS. They should be provided with the necessary HIV/AIDS related information, goods
and services to ensure that they and their clients live healthier and responsible lives.

It should be noted that the provision may also be used to subject men who have sex with men
(MSM) to an HIV test against their consent when they are alleged to have engaged in the so-called
unnatural offence of sodomy.144 It can be seen that the law dehumanises those most at risk such
as sex workers and MSM. Rather than providing protection, the law targets these key populations,
who are more vulnerable to HIV.

Conclusion.
Public health law can play a critical role in the promotion and protection of public health. The state
has an obligation to develop laws that enhance the promotion and protection of public health
without unduly undermining human rights generally and the right to health in particular.

The state is legally mandated to apply mandatory or coercive measures for the protection of public
health. However, it must respect individual rights and freedoms. Any restriction of human rights
or freedoms must be within the limits prescribed by law. It is clear that the laws on public health
examined in this chapter suffer from a number of weaknesses. In the first place, the Public Health
Act and Venereal Diseases Act are outdated and outmoded and cry out for repeal or reform. They
have not kept pace with changes in science and technology in the area of prevention, treatment and
care. Secondly, they do not conform to standards of human rights in general and those of the right
to health in particular. Thirdly, they largely rely on criminal law as an enforcement mechanism
and do not explore other modalities to ensure compliance. The HIV and AIDS Prevention and
Control Act contains some progressive provisions, which can be used to promote and protect
public health and human rights of PLHA.

However, the success of these provisions may be curtailed by the retrogressive provisions on
attempted transmission, intentional transmission, disclosure and mandatory testing. These
provisions defeat the primary objectives of the Act: prevention of HIV and protection of the rights
of PLHA

As the Global Commission on HIV has advised, there is a need to repeal punitive laws and enact
laws that facilitate and enable effective responses to HIV prevention, care and treatment for all
who need them. Laws that criminalise HIV transmission, exposure or non-disclosure of HIV status
are counterproductive and should be repealed. There is also a need to decriminalise private and
consensual adult sexual acts and voluntary sex work. The state can suspend the HIV and AIDS
Prevention and Control Act and consider revising some of the negative provisions based on new
scientific evidence. However, in my view, we do not need a law specifically targeting a disease
such as HIV/AIDS. Why target HIV/ AIDS?

REFORM

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According to WHO; Building blocks for effective public health laws.

Public health legislation should clearly set out the mandate, powers and responsibilities of the
government and of public health officials. This not only ensures that public health officials have
the powers they need; it also helps to ensure that governments remain accountable for the discharge
of their statutory duties and functions.

Public health legislation should establish clear mechanisms for coordinating the activities of
different levels of government during public health emergencies.

The process of reforming public health laws provides an important opportunity for lawmakers to
integrate human rights safeguards into health legislation. Human rights encompass both civil and
political rights, such as non-discrimination and privacy, as well as the right to health itself and
other social and economic rights While human rights have inherent value, they also have an
important instrumental value within public health legislation.

GOSTINI; Public Health Law Reform

A model public health statute should reflect at least 3 principles—duty, power, and restraint. First,
the law should impose duties on government to promote health and well-being within the
population. Second, the law should afford public health authorities ample power to regulate
individuals and businesses to achieve the communal benefits of health and security.

Third, the law should restrain government from overreaching in the name of public health. Public
health authorities should respect, to the extent possible, individual autonomy, liberty, and privacy.
They should act only on the basis of clear criteria where necessary to protect the community. Public
health agencies should also provide procedural due process before exercising coercive powers.
Fair and objective decision making is essential in a democracy.

Effective public health protection is technically and politically difficult. Law cannot solve all, or
even most, of the challenges facing public health authorities. Yet law can become an important
part of the ongoing work of creating the conditions necessary for people to live healthier and safer
lives. A public health law that contributes to health will, of course, be up-to-date in the methods
of assessment and intervention it authorizes. It will also conform to modern standards of law and
prevailing social norms. It should be designed to enhance the reality and the public perception of
the health department's rationality, fairness, and responsibility. It should help health agencies
overcome the defects of their limited jurisdiction over health threats facing the population. Finally,
a new law and the process of its enactment should provide an opportunity for the health department
to challenge the apathy about public health that is all too common within the government and the
population at large.

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MENTAL HEALTH LAW

Introduction

Mental health is a critical component of the right to health. The need to promote mental health is
recognised in legal and policy frameworks. All the key international and regional human rights
instruments, which Uganda has signed such as: the International Covenant on Civil and Political
Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (CESCR);
the Convention on the Rights of the Child (CRC); the African Charter on Human and Peoples’
Rights (ACHPR); and the Women’s Protocol to the ACHPR, contain human rights provisions
applicable to persons with disabilities (PWDs) generally and persons with mental disabilities
(PWMDs) in particular. Uganda is also a party to the Convention on the Rights of Persons with
disabilities (CRPD), which specifically provides for rights of PWDs. There are also various soft
law instruments which apply to PWMDs as illustrated in this chapter. The Constitution also
recognises the rights of PWDs. There are also the 2006 Persons with Disabilities Act and the 2003
National Council for Disability Act, which are intended to enhance the protection of rights of
PWDs.

Uganda also has a Mental Health Policy (MHP), which is part of the National Health Policy63 that
recognises mental health as a key component to be delivered at all levels of health care. The MHP
emphasizes decentralisation, integration, evidence-based services, strong partnerships and
collaboration. In spite of the above fairly elaborate legal and policy frameworks that seek to
promote mental health rights, PWMDs are some of the most vulnerable people in society that ‘have
been largely overlooked as a target of development programmes’. They are often subject to
discrimination, social isolation and exclusion; they are stigmatised and disenfranchised and suffer
all kinds of human rights violations. They are subject to violence and abuse. They are confined,
against their will, in institutions such as hospitals and deprived of their freedom, human dignity
and other basic human rights. The situation of PWMDs is exacerbated by the negative attitudes of
society in general towards disability and an outdated Mental Treatment Act, which marginalises
PWMDs and excludes them from participating in the affairs of mainstream society.

Against this background, I examine in this chapter the mental health legal framework at the
international and regional levels with the view of finding out the extent to which it may inform
legal reform at the domestic level and thus contribute to the protection of mental health rights in
the country. It should be pointed out from the outset that mental health disabilities (MHDs) are
caused by a complex mix of biological, psychological, cultural, socio-political and juridical
factors. Thus, combating stigma and discrimination against PWMDs requires a holistic, multi-
disciplinary approach. However it may not be possible to examine all the factors that affect mental
health; they are out of the scope of this chapter. Thus, this chapter focuses on juridical interventions

63
Ministry of Health National health policy (2010).

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given the critical role played by law in the promotion of mental health especially in outlawing
disability based discrimination and the promotion of human rights of PWMDs.

2 Mental health situation

Mental health is a major public health and development concern. Globally, mental and
neurological disorders are responsible for approximately 14 per cent of the global burden of
disease. A large proportion of global health burden is due to mental health disorders. According to
WHO, Mental health conditions account for 13 per cent of the total burden of disease, and 31 per
cent of all years lived with disability.64 By 2030, depression is likely to be the highest contributor
to the global burden of disease than heart disease, stroke, road traffic accidents and HIV/AIDS.

In Africa, it is estimated that between 76 per cent and 99 per cent of people with serious mental
disorders do not have access to the treatment they need for their mental health problems.65 In
Uganda, about 6.8 million out of a population of 34 million people have some degree of mental
illness or mental disorder, ranging from anxiety and depression to severe madness.66 Mental health
contributes 13 per cent of the national disease burden. Mental disorders are responsible for
increased mortality due to suicide and reduced life expectancy. Mental health challenges are
increasing, with depression at 12-68 per cent, anxiety disorders at 20-62 per cent and alcohol
dependency at 14 per cent of the general population. About 75 per cent of attendances at mental
health clinics have some form of neurological problems such as epilepsy, with cases of dementia
on the increase especially amongst persons living with HIV/AIDS (PLHA).67

Albeit mental health is one of the 12 components of the National Minimum Health Care package
to be provided at all levels of health care,14 mental health care in Uganda receives inadequate
attention compared to other areas of health care especially communicable diseases. The burden of
caring for the mentally ill is largely left to families, especially women who are already burdened
by their multiple gender roles. Although there are six regional mental hospitals and one referral
mental hospital, the human resource situation for mental health is alarming. For example, the total
number of mental health professionals per 100000 is 1.13. There are only 0.08 psychiatrists, 0.04
medical doctors, 0.78 nurses, 0.01 psychologists, 0.01 social workers, 0.01 occupational therapists,
and 0.2 psychiatric clinical officers.18 Only 1 per cent of the medical doctors and 4 per cent of the
nurses are specialised in psychiatry.

3 Understanding mental health disabilities

Mental health, which is a key component of the right to health, is a broad, multifaceted and
complex subject. It is more than mere absence of mental illness and is vital to individuals, families
and society. Mental health relates to a positive state: it looks at mental well-being, which is affected
by legal, political, social, economic and environmental factors. The World Health Organisation
(WHO) defines mental health as

64
WHO Mental health and development: Targeting people with mental health disabilities as a vulnerable group (2010) 30.
65
ibid
66
Ministry of Health Health Sector Strategic Plan (2011) 16; J Ssebunya et al ‘Integration of mental health care into primary health care in a
rural district in Uganda’ (2010) 13 African Journal of Psychiatry 128.
67
ibid

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 a state of well-being in which every individual realizes his or her own potential, can cope
with normal stresses of life, can work productively and fruitfully, and is able to make a
contribution to her or his community.68

Mental health includes ‘analysis and diagnosis of a person’s mental condition, and treatment, care
and rehabilitation for a mental illness or suspected mental illness’.69

In order to understand mental health disabilities, it is necessary to map out the meaning of disability
through the various models on disability, which have been developed over the years. The discourse
on disability has been dominated by the medical and social models. The medical model views
disability as a physical or mental impairment or biological condition of the individual that must be
corrected through medical or surgical intervention. The model regards disability as a deficiency
that must be fixed by a rehabilitation or medical professional. It regards the limitations faced by
people with disabilities as resulting primarily, or solely, from their impairments.

In contrast to the medical model, the social model views disability as a product of social
exclusionary practices. Advocates of the social mode attribute disability to economic,
environmental or cultural barriers, which are imposed on PWDs by society. For example, the
Union of the Physically Impaired against Segregation (UPIAS), a disabilities movement, has
observed as follows:
In our view, it is society which disables physically impaired people. Disability is something
imposed on top of our impairments by the way we are unnecessarily isolated and excluded
from full participation of society. To understand this, it is necessary to grasp the distinction
between the physical impairment and the social situation, called ‘disability’, of people with
such impairment. Thus, we define impairment as lacking all or part of a limb, or having a
defective limb, organism or mechanism of the body and disability as the disadvantage or
restriction of activity caused by a contemporary social organization which takes little or no
account of people who have physical impairments and thus excludes them from
participation in the mainstream of social activities.

It is true that the social model provides a convincing approach to the understanding of disability.
However, what is clear is that both individual impairment and the social environment play a critical
role in defining disability. Although the CRPD does not explicitly define disability, it defines
PWDs as including
those who have long-term physical, mental, intellectual or sensory impairments which in
interaction with various barriers may hinder their full and effective participation in society
on an equal basis with others. (Art 8)

The 2006 Persons with Disabilities Act also defines disability as ‘a substantial functional limitation
of daily life activities caused by physical, mental or sensory impairment and environment barriers
resulting in limited participation’.( Sec 2.)

It has been correctly pointed out that there is need to look at disability as ‘an interaction between
biological and social causes, denying causal priority to either’. The WHO has also pointed out that,

68
WHO ‘Mental health: A state of well-being’ http://www.who.int/features/factfile/mental_health/an
69
ibid

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 [d]isability is thus not just a health problem. It is a complex phenomenon, reflecting the
interaction of features of a person’s body and features of the society in which he or she
lives. Overcoming the difficulties faced by people with disabilities requires interventions
to remove environmental and social barriers.28
The WHO has also noted that
[m]ental health intervention, including psychosocial, care management, and
pharmacological strategies, have proved effective. Interventions reduce severity of
symptoms and improve daily functioning in work, social, and community life.

Ngwena has also noted that both models should be juxtaposed in order to respond adequately to
disability related discrimination.70He has correctly observed as follows:
[A] social construction of disability provides a meaningful paradigm in which to
understand the definition of disability...disability is a fluid and highly contested construct.
The medical model, with its focus on intrinsic pathology, is a limited, though not
dispensable, paradigm for transacting disability. Disability is more than just the sum total
of individual pathology and consequent mental and physical limitations. Extrinsic factors
are extremely relevant to a meaningful interpretation of disability. The social model, with
its overt political nuances, provides invaluable insights into the epistemology of disability
and the formulation of normative responses that would otherwise be lost to the medical
model operating on its own.

What emerges from the literature on the subject points to one fact: disability is a fluid, complex
and contested concept. Tackling disability related stigma and discrimination requires a multi-
faceted strategy involving bio-medical, political and socio-economic interventions. The question
is: what are mental health disabilities? These may be taken to refer to those impairments or
conditions that have a long term effect on a person’s mental well-being. When these impairments
or conditions are combined with environmental and social factors such as stigma and
discrimination, they deny that person the enjoyment of his or her rights. Mental health disabilities
include schizophrenia, bipolar disorder, depression, epilepsy, alcohol and drug use disorders, and
intellectual impairments. It should be noted that mental disability poses a distinct set of human
rights challenges when compared with other types of disability. This is largely because this type
of disability is stereotypically considered to diminish the autonomy of the person and thereby
undermine the position of that person as an active bearer of human rights.

4 The normative framework for realisation of mental health at the international level

4.1 The mainstream international human rights instruments

It should be pointed out from the outset that until recently, international human rights law ignored
PWDs. Apart from the CRPD which covers questions of disability at a general level, there is no
international treaty specifically dealing with mental health disabilities. However, the mainstream
international human rights instruments such as the Universal

70
26 Sec 2.
27 n 22 above, 18.
28 WHO ‘Disabilities’ http://www.who.int/topics/disabilties/en/ (accessed 2 November
2014).
29 WHO (n 20 above) 35.

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Declaration, ICCPR, CRC and ICESCR, apply to PWMDs just in the same way that they do to
everyone else. Albeit a detailed analysis of all the international human rights instruments is beyond
the scope of this chapter, suffice to say that most of the rights contained therein are critical for the
promotion of mental health.

According to the UDHR, international human rights are applicable to all persons [including
PWMDs] since ‘[a]ll human beings are born free and equal in dignity and rights’.( Art 1 of the
Universal Declaration). The rights and freedoms, which are directly applicable to PWDs generally
and PWMDs in particular, include, the right to life, liberty and security of person; (art 3) freedom
from torture, cruel, inhuman or degrading treatment or punishment; (Art 5) equal protection of the
law;(art 7) protection from arbitrary arrest or detention; privacy; freedom of movement and
residence;40 family rights;41 participation in the cultural life of the community; and a right to a
standard of living adequate for health and well-being. It should be noted that the Universal
Declaration recognises the indivisibility and interdependence of civil, political, economic, social
and cultural rights. In this vein, the Declaration provides that economic, social and cultural rights
are indispensable for a person’s ‘dignity and the free development of his [her] personality’.( Art
12. Art 13. Art 18.Art 27(1). Art 25. Art 22. Respectively)

The rights and freedoms, which are guaranteed by the ICCPR and are relevant for promotion of
mental health include, self-determination;(Art 1) life;(art 6) liberty and security of the person;(art
9) freedom from arbitrary arrest or detention; fair hearing; privacy; family rights;and equality
before the law.( Art 14.Art 17.Art 23.Art 26.Art 10.Art 7 respectively ) According to the ICCPR,
‘[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the
inherent dignity of the human person’71 and no person ‘shall be subjected to torture, cruel, inhuman
or degrading treatment or punishment’.(Art 7)

In Price v United Kingdom the European Court on Human Rights considered whether the
treatment of the applicant contravened article 3 of the European Convention, which like article 7
of the ICCPR prohibits torture, cruel, inhuman and degrading treatment. The applicant who had a
physical disability and moved in a wheel chair was jailed for contempt of court. Her cell was not
adapted for PWDs and she was forced to sleep in a wheel chair. She had difficulty accessing her
toilet. In order to access the toilet, she had to undress in front of male guards. It was held that her
treatment constituted degrading treatment under the Convention. The court noted that in order to
fall within the ambit of the Convention, the ill-treatment must attain the minimum level of severity.
That in determining whether treatment is ‘degrading’ within the meaning of the Convention, one
of the factors the court will take into account is the question whether its object was to humiliate
the person concerned although the absence of any such purpose cannot conclusively rule out a
finding of violation …

In Ireland v United Kingdom, the court also held that the treatment will be inhuman only if it
reaches a level of gravity involving considerable mental or physical suffering, and degrading if the
person has undergone humiliation or debasement involving a minimum level of severity. The court
noted that inhuman and degrading treatment depends on all the circumstances of the case,
including the nature and context of the treatment, the manner and the method of its execution, its

71
Art 10

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duration, ‘its physical or mental effects and, in some cases, the [victim’s] sex, age, and state of
health’.

The CESCR provides that the rights in the covenant ‘derive from the inherent dignity of the human
person’. It guarantees such rights as selfdetermination, work, enjoyment of just and favourable
conditions of work, protection of the family, adequate standard of living, highest attainable
standard of physical and mental health, education and participation in cultural life, all of which are
critical for the promotion of mental health. Preamble to the CESCR. (Art 1.Art 6.Art 10. Art 11.
Art 12. Art 13.Art 15.)

On their face, the international human rights instruments outlined above protect all people,
including PWMDs. However, it cannot be denied that the instruments marginalise disability rights.
Though they are certainly relevant for the promotion of mental health, the instruments do not
explicitly prohibit discrimination on disability grounds. Consequently, over the years, the
disability movement has fought for social construction of disability and rights based approaches
to disability. In order to tackle the stigma and discrimination associated with disability, the
movement correctly argued that there was need for a specialised human rights instrument to fight
discrimination and monitor human rights of PWDs.

4.2 The pre-CRPD situation: Soft law instruments recognizing disability as a human rights
issue

In early 1970s, the UN developed various soft law instruments to protect PWDs. For example, the
UN adopted the Declaration on the Rights of Mentally Retarded Persons and the Declaration on
the Rights of Disabled Persons. The declarations recognised disability as a human rights issue and
thus incorporated most of the internationally recognized human rights. However, the disability
movement viewed the declarations as being largely informed by the traditional medical and charity
models and that they were ‘tainted by paternalism’. For example, the Declaration on the Rights
of Retarded Persons uses words such as ‘retarded’ and ‘handicap’, which reinforce stigma and
negative stereotypes and attitudes against PWMDs. The Declaration also provides that ‘the
mentally retarded person has, to the maximum degree of feasibility, the same rights as other human
beings’ yet, as the UDHR proclaims, all human beings are born free and equal in dignity and rights.
The question here is: is there any enjoyment of equality since it is conditional to ‘feasibility’, which
is a vague and subjective concept? The Declaration also provides for a ‘qualified guardian to
protect his [retarded person’s] personal well-being and interests.” However, guardianship has been
sharply criticised. For example, Herr has noted that
[g]uardianship intrudes on fundamental liberties and privacy rights, employs vague criteria,
fails to tailor the scope of the guardian’s authority, denies procedural safeguards, and lacks
adequate monitoring and review.

The Declaration on the Rights of Disabled Persons also incorporates international human rights
and prohibits discrimination on disability grounds. However, the Declaration adopts a negative
attitude towards PWDs. For example, a disabled person is defined as
any person unable to ensure by himself or herself, wholly or partly, the necessities of a
normal individual and/or social life, as a result of a deficiency, either congenital or not, in
his or her physical or mental capabilities.

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The declaration aims at promotion of integration of disabled people ‘as far as possible in normal
life’. This raises an important question: Are disabled persons not normal?

In the 1990s, the UN General Assembly adopted two instruments critical for the promotion of
rights of PWMDs: the Principles for the Protection of Persons with Mental Illness and the
Improvement of Mental Health Care (MI Principles) and the Standard Rules on the Equalization
of Opportunities for PWDs (Standard Rules). According to the MI Principles, persons with mental
illness (PWMI), ‘have the right to the best available mental health care, which shall be part of the
health and social care system’. PWMI shall be treated with human dignity and their
autonomy protected. PWMI have a right to be protected from exploitation, abuse or degrading
treatment. The MI Principles explicitly prohibit discrimination on grounds of mental illness86 and
proclaim the right of PWMI to exercise all civil, political, economic, social and cultural rights.
Aware of the limitations associated with institutionalised mental health care, the MI Principles
stress that, ‘[e]very person with a mental illness shall have the right to live and work, to the extent
possible in the community’. On the importance of life in the community, Yamin and

Rosenthal have observed as follows,

[f]rom a human rights perspective, people are entitled to live in and receive care in the
community not because it is more efficient, but because all human beings develop their
identities within social contexts, and have rights to work and study, as well as being with
family and friends.

The MI Principles emphasise that determination of mental illness ‘shall be made in accordance
with internationally accepted medical standards’. According to the principles,
[n]o person shall be compelled to undergo medical examination with a view to determining
whether or not he or she has a mental illness except in accordance with a procedure
authorized by domestic law.

Key questions to be asked before a PWMI is compelled to undergo medical examination include:
Has informed consent been obtained before medical examination? Has the patient been accorded
an opportunity to seek a second opinion? Who performs such an examination? The MI Principles
require that all medical records and information should be kept confidential.

As pointed out above, the MI Principles stress the importance of life in the community.
Consequently, ‘[e]very patient shall have the right to be treated and cared for, as far as possible,
in the community in which he or she lives’. However, any treatment in a mental health facility
should where possible be ‘near his or her home or the home of his or her relatives or friends’ and
has ‘the right to return to the community as soon as possible’. A patient has a right to receive such
care as appropriate to his or her health needs and to be treated in the least restrictive environment
and with the least restrictive or intrusive treatment appropriate to the patient’s health needs and
the need to protect the physical safety of others.

Any medication should be only for therapeutic or diagnostic purposes but not as punishment or
convenience of others. The treatment must be based on an individually presented plan and should
be aimed at ‘preserving and enhancing personal autonomy’. The MI Principles emphasise consent

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to treatment and thus treatment without a patient’s consent is prohibited. Informed consent is that
consent, which is, obtained freely, without threats or improper inducements, after appropriate
disclosure to the patient of adequate and understandable information in a form and language
understood by the patient on (a) the diagnostic assessment; (b) purpose, method, likely duration
and expected benefit of the proposed treatment; (c) alternative modes of treatment, including those
less intrusive; (d) possible pain or discomfort, risks and side effects of the proposed treatment.

The MI Principles stress the need for a judicial or other independent or impartial body established
by domestic law and functioning in accordance with procedures laid down by domestic law. The
body shall periodically review cases of involuntary admission and must, as expected, observe the
principles of natural justice, including a right to a fair hearing and observing the patient’s right to
legal representation. The patient is entitled to access to information concerning his or her medical
records.

It is trite to state that like most human rights, the enjoyment of rights contained in the MI Principles
may be limited in accordance with safeguards lain down by law.106 Thus, according to the
Principles,
[t]he exercise of the rights set forth in the following Principles may be subject only to such
limitations as are prescribed by law and are necessary to protect the health or safety of the
persons concerned or of others, or otherwise to protect public safety, order, health or morals
or the fundamental rights and freedoms of others.

The MI Principles have been recognised as an important interpretative guide to international and
regional human rights obligations in respect of persons with mental disability. For example, in
Victor Rosario Congo, it was noted that the MI Principles serve as a guide to states in the design
of mental health systems. In Purohit & Moore v The Gambia,9 in finding that the Gambian
Lunatics Detention Act contravened various provisions of the ACHPR, the African Commission
on Human and Peoples’ Rights (the African Commission), pursuant to article 60 of the Charter,
drew inspiration from MI Principle 2 on human dignity.

It should be recalled that in the 1970s, the UN General Assembly declared 1981 the International
Year of Disabled Persons. Its major outcome was the World Programme of Action concerning
Disabled Persons, which recognised ‘the right of disabled persons to participate fully in the social
life and development of their societies and to enjoy living

4.3 The CPRD: A transformative paradigm shift

It should be noted that the disability movement criticised the soft law instruments above on
grounds, inter alia that they are not legally binding and are largely formulated in programmatic
language. The movement called for an international legally binding instrument, developed with
their full participation, and specifically addressing the rights and obligations of PWDs. Indeed, in
the 2000s, there were serious initiatives for a disabilities convention. For example, in April 2000,
the UN Commission on Human Rights invited the UN High Commissioner for Human Rights to
examine measures to strengthen the protection and monitoring of the human rights of PWDs. In
December 2001, the UN General Assembly established an Ad Hoc Committee to
consider proposals for a comprehensive and integral international convention to promote
and protect the rights and dignity of persons with disabilities, based on the holistic approach

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 in the work done in the fields of social development, human rights and non-discrimination
and taking into account the recommendations of the Commission of Human Rights and the
Commission for Social Development.

Following intensive meetings and negotiations, a draft convention was completed in 2004. On 13
December 2006, the UN General Assembly adopted the CRPD by consensus. The CPRD was
opened for signature on 30 March 2007. The CRPD was drafted with active participation of
disability organisations, including mental health service user representatives. The CRPD has been
embraced widely by the disability movement as a universal standard for realisation of human rights
of PWDs. It marks a transformative paradigm shift away from viewing PWDs as objects of charity
and pity and as a problem whose solution lies only in medical intervention. It recognises PWDs as
subjects with rights who are capable of claiming those rights. PWDs are viewed as active members
of society who can make decisions for their lives based on their free and informed consent. The
CPRD views PWDs as bearers of rights and responsibilities and with the capacity of self-
determination. The CPRD adopts the position of the Universal Declaration, ACHPR and the
Vienna Declaration and views human rights as indivisible, interdependent and
interrelated.72According to the CRPD, disability ‘results from the interactions between persons
with impairments and attitudinal and environmental barriers that hinder their full and effective
participation in society on an equal basis with others’.

The CPRD has been hailed as a comprehensive human rights treaty that addresses the rights of
PWDs in a holistic fashion. For example, the WHO has pointed out that the CPRD provides a
comprehensive legal framework for ending the discrimination experienced on a daily basis by
many people with mental health conditions. Ngwena has also noted that ‘[t]he normative impetus
behind the CRPD is inclusive equality. It is the imperative of securing equality and human dignity
for disabled people in all socio-economic sectors’. Burns has also observed that the CRPD has an
explicit social development dimension and constitutes a significant global commitment to a human
rights framework in which issues of achieving substantive equality and the full and unfettered
rights of persons with disabilities are placed at centre stage.

Albeit most of the substantive provisions of the CRPD are certainly relevant to issues of mental
health, a detailed examination of the CRPD is beyond the scope of this chapter. What is important
in this chapter is to examine the place accorded to mental disabilities within the CPRD. The
purpose of the CRPD is to promote, protect and ensure the full and equal enjoyment of all human
rights and fundamental freedoms of all PWDs, and to promote respect for their dignity.73 The
CRPD provides that PWDs ‘include those who have long-term physical, mental, intellectual or
sensory impairments which in interaction with various barriers may hinder their full and effective
participation on equal basis with others’. From this definition, it can be stated that mental health
disabilities are recognized by the CRPD, which is guided by the principles of human dignity,
autonomy, non-discrimination, equality, participation, and inclusion.74

72
Preamble.
73
Art 1
74
Art 3(a)-(f).

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The CRPD protects the right to life140 and prohibits torture or cruel, inhuman or degrading
treatment or punishment. No scientific or medical experiment should be conducted on a PWD
without his or her free
consent.

The CRPD views the individual as the primary decision maker, while recognising that the person
with a disability may need some assistance in making and communicating a decision. States parties
are obliged to recognise that PWDs enjoy legal capacity on an equal basis with others in all aspects
of life. This provision means that PWDs are active subjects of rights, and not passive objects of
social care. States should ensure that PWDs can effectively and fully participate in political and
public life on an equal basis with others. States are obliged to take appropriate measures to support
PWDs in exercising their legal capacity. However, in rendering the support, the rights and
freedoms of PWDs should not be abused. In this vein, the CRPD provides as follows:
States parties shall ensure that all measures that relate to the exercise of legal capacity
provide for appropriate and effective safeguards to prevent abuse in accordance with
international human rights law. Such safeguards shall ensure that measures relating to the
exercise of legal capacity respect the rights, will and preferences of the person, are free of
conflict of interest and undue influence, are proportional and tailored to the person’s
circumstances, apply for the shortest time possible and are subject to regular review by a
competent, independent and impartial authority or judicial body. The safeguards shall be
proportional to the degree to which such measures affect the person’s rights and
responsibilities.

Other rights critical for the promotion of mental health include freedom from exploitation and
abuse; protection of integrity of the person; privacy;150 health;151 an adequate standard of living
and social protection; and habitation and rehabilitation. In order to ensure access to justice for
PWDs, states parties are obliged to promote appropriate training for those in the field of justice,
including police and prisons staff.

5 The normative framework for realisation of mental health at the regional level

The ACHPR contains various civil, economic, political, social and cultural rights, which are vital
for the promotion of mental health. The ACHPR guarantees everyone equal protection of the
law.(Art 3 ACHPR.) Although the ACHPR does not explicitly include disability as one of the
prohibited grounds of discrimination, it can be argued that disability is covered under the phrase,
‘or other status’.( Art 2.) The ACHPR also provides that ‘the disabled shall have the right to special
measures of protection in keeping with their physical and moral needs’.( Art 18(4).) The ACHPR
protects liberty and security of the person75 and recognises the right to participate in government.(
Art 13.) It also recognises ‘the right to the best attainable state of physical and mental health’.( Art
16(1). It also guarantees every person ‘the right to the respect of the dignity inherent in a human
being and to the recognition of his legal status’ and prohibits ‘torture, cruel, inhuman or degrading
punishment or treatment’. (Art 5.)

In Purohit & Moore v The Gambia, the complainants, acting on behalf of patients detained in a
psychiatric unit at a hospital, alleged that the legislation governing mental health ‒ the Lunatics
75
Art 6.

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Detention Act ‒ is outdated as it does not contain a requirement of consent to treatment or
subsequent review of continued treatment. The complainants argued that the provisions of the Act
that condemn persons described as ‘lunatics’ to automatic and indefinite institutionalisation
contravene articles 2 and 3 of the ACHPR, which provide for non-discrimination and equal
protection of the law respectively. They further argued that since mental illness is a disability, the
practice of detaining persons regarded as mentally ill indefinitely and without due process
constitutes discrimination on the analogous ground of disability and thus contravenes article 2 and
3 of the Charter.

The African Commission observed that ‘human dignity’ is an inherent basic right to which all
human beings, regardless of their mental disabilities, are entitled without discrimination. The
African Commission cited its earlier decision in Media Rights Agenda v Nigeria, where it held that
the term ‘cruel, inhuman or degrading treatment’ in article 5 of the Charter is to be interpreted so
as to extend the widest possible protection against abuses, whether physical or mental. The African
Commission held that the terms ‘lunatics’ and ‘idiots’ dehumanize and deny PWMDs any form of
dignity in contravention of article 5 of the Charter. It stated as follows:
[M]entally disabled persons would like to share the same hopes, dreams and goals and have
the same rights to pursue those hopes, dreams and goals just like any other human being.
Like any other human being, mentally disabled persons or persons suffering from mental
illnesses have a right to enjoy a decent life, as normal and full as possible, a right which
lies at the heart of the right to human dignity. This right should be jealously guarded and
forcefully protected by all states party to the African Charter in accordance with the well
established principle that all human beings are born free and equal in dignity and rights.

The African Commission urged the government of the Gambia to ensure the enjoyment of the right
to health of its people, paying special attention to PWMDs. The Commission observed that the
right to health, ‘which is vital to a person’s life and well-being, and is crucial to the realization of
all other fundamental human rights and freedoms’, includes the right to health facilities, access to
food and services to be guaranteed to all without discrimination of any kind. On implementation
of the right to health under the ACHPR, the African Commission cautiously noted as follows:
[In Africa], millions of people are not enjoying the right to health maximally because
African countries are generally faced with the problem of poverty which renders them
incapable to provide the necessary amenities, infrastructure and resources that facilitate the
full enjoyment of this right. Therefore, having due regard to this depressing but real state
of affairs, the African Commission would like to read into Article 16 the obligation on part
of states party to the African Charter to take concrete and targeted steps, while taking full
advantage of its available resources to ensure that the right to health is fully realised in all
its aspects without discrimination of any kind.

The Commission strongly urged the government of the Gambia to repeal the Lunatics Detention
Act and replace it with a new legislation for mental health compatible with the African Charter
and international standards and norms for the protections of PWMDs as soon as possible. In the
meantime, the government should create an expert body to review cases of all persons detained
under the Act and make appropriate recommendations for their treatment or release, and provide
adequate medical and material care for PWMDs.

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Another instrument critical for the promotion of mental health at the regional level is the Women’s
Protocol to the ACHPR. In addition to providing for other human rights recognised in international
human rights instruments and the ACHPR, the Protocol enjoins states parties to ensure protection
for women with disabilities and ‘take special measures commensurate with their physical,
economic and social needs to facilitate their access to employment, professional and vocational
training as well as participation in decision making’.( Art 23(a).) States parties should also ‘ensure
the right of women with disabilities to freedom from violence, including sexual abuse,
discrimination based on disability and the right to be treated with dignity’.( Art 23(b).) The African
Charter on the Rights and Welfare of the Child (ACRWC) also obliges states parties to provide
special protection to mentally and physically disabled children, who unfortunately are referred to
as ‘handicapped children’.( Art 13.) It should be noted that the regional provisions on disability
are largely informed by the charity/medical models rather than the social and rights models of
disability and are subject to progressive realisation and the availability of resources. Consequently,
the Working Group on Older Persons and People with Disabilities in Africa has drafted a Protocol
to the African Charter on the Rights of Persons with Disabilities in Africa, which is informed by
the social and rights based approaches to disability.

6 The normative framework for realisation of mental health at the domestic level

6.1 General disability rights law

In addition to other human rights and freedoms, Uganda’s Constitution recognises the rights of
PWDs. (Art 32 & 35.) However, the Constitution restricts the liberty of the so-called persons of
unsound mind ‘for the purposes of the care or treatment of that person or protection of the
community’.76 Parliament has also enacted a fairly progressive legislation, 77 which obliges the
state and other actors to create an environment conducive to PWDs realising their full potential.
The Act aims at providing legal protection of PWDs pursuant to articles 32 and 35 of the
Constitution.

‘Disability’ is defined as ‘a substantial functional limitation of daily life activities caused by

physical, mental or sensory impairment and environmental barriers resulting in limited
participation’. (Sec 2.) Given that the definition of disability includes mental or sensory
impairments, it can be confidently stated that the Act applies to PWMDs.

The Act, which adopts the social and rights models of disability, has noble objectives, which
include: the promotion of the dignity and equal opportunities of PWDs; participation of PWDs in
all aspects of life as equal citizens of Uganda; elimination of all forms of discrimination of PWDs
on ground of their disabilities; and promotion of positive attitude and image of PWDs as capable
and contributing members of society, sharing the same rights and freedoms as other members of
society.( Sec 3(a) - (e).) The Act re-echoes such constitutionally guaranteed rights as health;
rehabilitation; privacy; freedom from cruel, inhuman or degrading treatment; family rights; and
participation in political and public life, including decision-making. The state, its agencies and all

76
Art 23(1)(g).
77
The Persons with Disabilities Act.

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persons are obliged to uphold the rights and freedoms in the Constitution. The Act prohibits
discriminative medical examination and thus an employer shall not conduct any test or
examination to establish whether an applicant is a PWD. However, an employer may make pre-
employment inquiries into the ability of an applicant to perform job related functions.

6.2 Mental health legislation

The main legislation in Uganda in the area of mental health is the Mental Treatment Act (the Act),
which came into force on 31 August 1938 during the colonial period and seeks to provide for ‘the
care of persons of unsound mind and the management of mental hospitals in Uganda’. The Act
stresses detention, treatment and care under custody in a facility for example a mental hospital.
According to the Act,
[a]ny magistrate, upon the information on oath in the prescribed form of any informant to
the effect that the informant has good cause to suspect and believe some person to be of
unsound mind and a proper subject to be placed under care and treatment, may, in any place
which he or she deems convenient, see and question the person suspected to be of unsound
mind, and in the same place, may hold an inquiry in private as to the state of mind of that
person.78

Under S. 2 in handling the complaint, the magistrate has powers to conduct an inquiry ‘as if the
suspected person were a person against whom a complaint for an offence punishable by a
magistrate’s court had been laid’. Where the magistrate receives information on oath that a person
suspected to be of unsound mind ‘is at large or is dangerous to himself or herself or others, or is
not under proper care or control or is cruelly treated or neglected’, the magistrate may order any
police officer to apprehend and bring him or her to the magistrate for purposes of inquiring into
his or her state of mind. The suspected person may be detained in a mental hospital or other place
deemed suitable by the magistrate for purpose of medical examination or for the welfare and safety
of himself or herself or others.

A magistrate conducting the inquiry shall appoint two medical practitioners who shall separately
examine the suspected person, and if satisfied that he or she is of unsound mind, each practitioner
shall sign a certificate to that effect.( Sec 3(1). Where the magistrate is satisfied that the person is
indeed of unsound mind, he or she shall adjudge that person as being of unsound mind and issue
a reception order for the care and treatment at a special mental hospital.(Sec 4(1).)

It should be noted that a police officer not below the rank of assistant inspector, a medical officer,
or a chief may issue an ‘urgency order’ for the detention of a person alleged to be of unsound mind
for the safety of the public or for the welfare of that person.( Sec 6.) A person detained in a mental
hospital may be discharged on the order of the chief medical officer. (Sec 17). He or she may be
discharged at the request of relatives or friends who may be willing to undertake the care of that
person.( Sec 18(1). The magistrate may require these relatives or friends to give an undertaking
that the person shall be properly taken care of and he or she shall not injure himself or others. (Sec
1(2).

78
Sec 2(1) of the Mental Treatment Act

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The Act encourages prejudice, stigma, discrimination and abuse of PWMDs, and violates almost
all the rights recognised in the Constitution and international and regional human rights considered
above. The Act uses derogatory language against a person with mental illness by referring to him
or her as a ‘person of unsound mind’,79 which means ‘an idiot or person who is suffering from
mental derangement’. The Act views the challenge purely from a medical point of view whereby
the person is treated as a mental patient. Yet, mental illness is simply one aspect of mental health.
Mental health moves beyond mental illness and encompasses various mental conditions. The Act
simply treats all PWMDs as persons of unsound mind, who should, following medical examination
be detained or put under care in a mental hospital. It should also be noted that some PWMDs such
as women and girls suffer double discrimination and thus require special attention to their health
needs. They may be subjected to sexual violence and other forms of abuse. As the CRPD has
correctly provided, ‘women and girls with disabilities are subject to multiple discrimination’80 and
states should ‘take measures to ensure the full and equal enjoyment by them of all human rights
and fundamental freedoms’.

The Act denies PWMDs the right to recognition before the law, prohibits them from providing
evidence in court, denies them the right to administer their property, and abrogates the right to
marry and the right to employment. This retrogressive legislation is fortified by the erroneous
protective and paternalistic societal perception towards PWMDs that they do not have the capacity
to distinguish between right or wrong and thus decisions and choices should be made on their
behalf.

The Act relies on institutional care, yet contemporary approaches to mental health strongly
recommend deinstitutionalisation and promotion of community based care. The legal framework
lacks mechanisms to enable PWMDs to contest or appeal their detention in mental health facilities
or to stop the violence and abuse perpetrated against them. It is even not clear how a police officer
or chief who may be untrained in mental health issues can make a decision of detention and
subsequent admission of a PWMD. In any case, as Nyombi et al have correctly observed,
the Act has not been well enforced. Mental health cases are rarely subject to review by the
magistrates, leaving doctors to make decisive decisions without checks or balances. Legal
recourse is a rare route no matter the case and admissions to hospital are mainly voluntary
through self-referral or at the request of a relative.

It is important to point out that if a person’s liberty is deprived without a legal basis, then the
deprivation of liberty is unlawful. For example, in HL v UK, HL was a person who had difficulty
speaking and with limited understanding. Following an incident where he had harmed himself at
the day centre he was attending, he was admitted to hospital where he was retained for several
months. However, HL’s carers challenged the legality of his admission. The applicant alleged that
his informal admission to hospital amounted to detention, which violated the provisions on liberty
in the European Convention on Human Rights (ECHR). The European Court of Human Rights
held that the absence of safeguards and procedural rules regulating informal admissions failed to
protect against arbitrary deprivation of liberty, thus violating art 5(1) of the ECHR. The court
observed as follows:

79
Sec 1(f).
80
Art 6(1) of the CRPD.

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 As a result of the lack of procedural regulation and limits, the Court observes that the
hospital’s health care professionals assumed full control of the liberty and treatment of a
vulnerable incapacitated individual solely on the basis of their own clinical assessments
completed as and when they considered fit…

It should be noted that there are efforts geared towards repeal or revision of the Act. The objects
of the Mental Health Bill, which is a product of wide stakeholder consultation and follows a rights-
based approach to mental health are to:
(a) provide for community care and treatment for people with mental illness;
(b) provide for the admission in, for the treatment and for the discharge from, health units
and mental health units of persons with mental illness;
(c) ensure that people with mental illness are enabled to seek treatment voluntarily;
(d) ensure the safety and human rights of people with mental health problems and the
people who come into contact with them; and
(e) establish the Mental Health Advisory Board.81

The Bill defines mental illness as a recognizable and persistent disturbance in the behaviour,
thoughts, feelings, perceptions, mood, volition, orientation, awareness and memory of an
individual that impairs the ability to cope with daily tasks and that impairs judgment or behaviour
to a significant extent ... Sec 2 of the Bill.

The Bill highlights key values such as human rights promotion and protection,
deinstitutionalisation, integration of mental health care and community care, quality and safety,
social inclusion, and inter-sectoral collaboration.

7 Conclusion

The legal framework for realisation of the rights of PWDs in general and PWMDs in particular
exists, especially at the international level. However, there is need to reform or repeal the Act to
ensure that the new legislation is informed by contemporary psychiatry and human rights
approaches. In any case, by ratifying the international and regional human instruments discussed
in this chapter, the government of Uganda undertook to bring its domestic laws and practice in
conformity with the standards and norms contained in these instruments.

The Proposed Mental Health Bill considered above is a move in the right direction. Any legislation
that is eventually enacted should largely be guided by the social and rights models of mental
disability. The legislation should also be guided by the standards laid down by the WHO and could
draw lessons from legislative developments in other jurisdictions such as South Africa and Ghana.
The importance of legislation in the promotion of mental health need not be over-emphasised.

Commenting on the utility of mental health legislation, the Mental Health and Poverty Project
observed as follows:
The fundamental aim of mental health legislation is to protect, promote and improve the
lives and mental well-being of citizens … Mental health legislation is not only concerned
with care and treatment, but it guides the provision and setting up of institution-based
81
Sec 3 of the Bill.

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 health services. The mental health law is also essential for complementing and reinforcing
the mental health policy by providing a legal framework for meeting its goals. Such
legislation should ensure protection of human rights, enhancement of the quality of mental
health services and promotion of the integration of people with mental disorder in their
communities.

The advantages of public interest litigation were considered in chapter four. Thus, there is a need
for public spirited individuals or organisations to challenge the Act in Ugandan courts and the
African Commission on grounds that it violates the human rights and freedoms guaranteed in the
Constitution and international human rights instruments, which Uganda has ratified.

It should be pointed out above that given that the stigma and discrimination against PWMDs is
deeply rooted in cultural and societal perceptions and attitudes, the above juridical strategies may
be inadequate to promote mental health. The strategies should be augmented by public awareness
and sensitisation of society, including key stakeholders such as the police and other law
enforcement officers and health care professionals about the fact that like other human beings,
PWMDs are entitled to a dignified life. PWMDs should be assisted or supported where necessary
to realise their human rights. Their rights, needs, potential and contribution must be recognised.

Excerpt from; Mental Health law reform in Uganda by Th e M en tal He a lth a nd Po ve rty
Project (MH aPP) Policy Brief 3

The fundamental aim of mental health legislation is to protect, promote and improve the lives and
mental well-being of citizens. In the undeniable context that every society needs laws to achieve
its objectives, mental health legislation is not different from any other legislation. Mental health
legislation is not only concerned with care and treatment, but it guides the provision and setting
up of institution-based health services. The mental health law is also essential for complementing
and reinforcing the mental health policy by providing a legal framework for meeting its goals.
Such legislation should ensure protection of human rights, enhancement of the quality of mental
health services and promotion of the integration of people with mental disorders into their
communities.

It is essential that mental health laws are regularly reformed according to international human
rights frameworks, such as the newly adopted UN Convention on the Rights of Persons with
Disabilities (2007) and Principles for the Protection of Persons with Mental Illness and the
Improvement of Mental Health Care (1991). These frameworks support the rights of people with
mental disorders on an equal basis with others in all aspects of life.

The current law is outdated as it was enacted during the colonial times, and last revised in 1964.
The current law is not in line with contemporary issues in mental health care. The Act was passed
to make provision for the custodial care of people with mental disorders. It is termed the “mental
treatment Act” and as the name itself suggests, this law is primarily concerned with the treatment
of persons with mental illness in psychiatric institutions. It thus neglects the critical need to
promote community based care.

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The current law is prejudiced and hostile to persons with mental illness. It uses derogatory
language that perpetuates stigmatization and discrimination, for example describing people with
mental disorders as “persons of unsound mind”.

The current law does not promote and protect the rights of persons with mental illness both within
the health care context and in the community

The current law has been over-taken by events and its implementation is rather cumbersome,
especially with regard to the current modern approach to mental health care. In the first instance,
the law promotes institutionalization, and yet the modern approach and the mental health policy
strongly recommend deinstitutionalization and promotion of community based care. In this regard,
the law is in conflict with the policy.

In the current practice, the health practitioners do what is professionally deemed necessary to help
the patients, but their practice is not backed by the law. The law is therefore not well implemented.
Implementation can be attributed to a number of factors, including low awareness of the contents
of the law, and the fact that this law is out-dated.

Although it has been in place since 1964 to date, there is lack of awareness about this law, as it is
only known by a few people, mostly those in the mental health profession. Surprisingly, this lack
of awareness extends even to those expected to be well conversant with the law, such as the health
professionals and the police.

WHO 10 basic principles of mental health law:

1. Promotion of mental health and prevention of mental disorders
2. Access to basic mental health care
3. Mental health assessments in accordance with internationally accepted principles
4. Provision of the least restrictive type of mental health care
5. Self-determination
6. Right to be assisted in the exercise of self-determination
7. Availability of review procedure
8. Automatic periodical review mechanism
9. Qualified decision-maker
10. Respect of the rule of law

As is the practice with developing new laws, this new mental health bill has been translated into
the legal language by the Ministry of Justice, and is ready to be tabled in parliament for discussion.
The new law is now in line with latest international human rights standards, highlighting key values
such as human rights protection and promotion, deinstitutionalization, integration of mental health
care and community care, quality and safety, social inclusion, and intersectoral collaboration.

BUSHOBOROZI ERIC v Uganda

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This is an application brought under Section 33 and 39 of the Judicature Act and Article 139 (1)
of the Constitution of the Republic of Uganda. The Applicant, Bushoborozi Eric, was first detained
at Katojo Government Prison, Fort Portal in 2002 for the murder of his child whose head he cut
off from the neck claiming that he was killing a snake. He was tried in the High Court before
Justice Rugadya Atwooki. Court found that he was insane and therefore returned a special finding
of Not guilty by virtue of section 48 (1) of the Trial on Indictment Act (T.I.A). He was then
remanded on December 1, 2006 pending the minister’s orders as to where should be taken for
mental treatment or otherwise be dealt with.

It was submitted by Senior Counsel Cosma Kateeba for the applicant that since December 2006,
the minister has never made any orders in respect of the applicant. That the name of the applicant
with others is submitted to the Minister every year but he has taken no action. Counsel made
reference to a letter (Annexure B2) from the Commissioner General of Prisons dated 17th August,
2012 which shows that efforts are made regularly submitting the names of all inmates remanded
pending minister’s orders. The special case for this application is that much as he was later treated
and became normal, having gained all mental stability, he cannot be released by the prison
authorities without a Minister’s order.

HELD;

This case demonstrates the ills in our criminal Justice system which we must work so hard
to eliminate. It also points at the weakness of the law giving politicians (ministers) judicial
powers without a procedure of monitoring and evaluating execution of their orders. Sub-
section (3) of Section 48 of the T.I.A gives such judicial powers to the Minister to
determine whether an insane prisoner may be confined in a mental hospital, prison or other
suitable place of custody or be discharged.

Any court waiting for the minister’s orders is giving away the independence of the
Judiciary and is in one way or another accepting to be ordered around by the Minister who,
as experience has shown, is too busy to issue the orders. Courts should not allow any law
or practice that ousts the jurisdiction of court and hold the courts at ransom in judicial
matters. I stand to be corrected.

I would recommend for the adoption of the following procedure:

a) Where the trial court makes a special finding that the criminal lunatic is not guilty by reason

of being insane, the judge must make special orders as to the discharge or continued

incarceration of the prisoner in an appropriate place.

b) The trial court must order, in line with Subsection (4) of Section 48 of the T.I.A that the

superintendent of the mental hospital, prison or other place detaining the prisoner makes

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 periodic reports to the court which may issue appropriate special orders for the discharge

of the Criminal lunatic or otherwise deal with him or her.

c) The Registrar of the Court shall periodically, and in any case not later than three years from

the date of the last court order or report from the institution keeping the prisoner, make a

production warrant for the prisoner and present the case file before the High Court or any

other Court of competent jurisdiction for appropriate special orders.

d) The Registrar may appoint Counsel on State briefs to assist court in revisiting the cases

pending the judge’s special orders.

The need for law reform in the law relating to criminal lunatics remanded pending the Minister’s
orders has been made by so many Judges in their reports on Criminal Sessions and decisions. We
need not lament more than that. The Deputy Registrar sitting at Fort Portal is hereby directed to
serve a copy of my ruling to the Rules Committee and the Principal Judge with a view of prompting
the development of some rules and or Practice Directions along what I have recommended in this
ruling. The applicant has been kept on remand for an unjustified period of 14 years in clear
violation of his human rights and should be set free forthwith unconditionally

CEHURD v ATTORNEY GENERAL

In their petition, the petitioners allege that Uganda has ratified a wide range of international and
regional human rights treaties relating to protection of the rights of persons with mental disabilities,
including the United Nations Convention on the Rights of Persons with Disabilities and the
African Charter on Human and People’s Rights. That notwithstanding, the provisions of
sections: 45(5), 82(6) of the Trial on Indictments Act and Section 130 of the Penal Act regarding
the procedure in case of insanity or other incapacity of an accused person or the victim and
derogatory language used under Section 130 of the Penal Act are unconstitutional in as far as they
run contrary and against Articles 20, 21(1), (2) and (3), 23, 24, 28 and 35 of the Constitution of
the Republic of Uganda.
HELD;
The phrase “criminal lunatic” is unfortunate for various reasons, which we discuss below.
First, we have already established that mental illness/impairment is a disability. The
potential of persons living with disability cannot be realized if their dignity is not ensured.
Therefore, the language used in all statutes must respect the dignity of such persons, and
indeed of all individuals. It must also uphold their equality with is other persons.

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 In conclusion, we find that the language of sections 45(5) of the Trial on Indictments Act
is derogatory and thus contravenes Article 24 of the Constitution that provides for respect
for human dignity and protection from inhuman treatment. It strips mentally
disabled/impaired persons of dignity.
In reaching this conclusion, we have drawn inspiration from the case of Purohit and Moore
v. The Gambia, African Commission on Human and Peoples Rights, Communication
No. 241/2001 (2003). The applicants in that case challenged the Lunatics Detention Act
(LDA) of the Gambia. One of the grounds for their complaint was that the provisions of
the LDA condemning any person described as a lunatic to automatic and indefinite
institutionalization are incompatible with and violate Articles 2 and 3 of the African
Charter. Section 2 of the LDA defines a “lunatic” as including “an idiot or person of
unsound mind.” The complainants argued that to the extent that mental illness is a
disability, the practice of detaining persons regarded as mentally ill indefinitely and without
due process constitutes discrimination on the analogous ground of disability. The African
Commission held that human dignity is an inherent basic right to which all human beings,
regardless of their mental capabilities or disabilities, as the case may be, are entitled to
without discrimination.
It reiterated its earlier decision in the case of Media Rights Agenda v.Nigeria, where it
stated that “cruel, inhuman or degrading punishment and treatment” is to be interpreted so
as to extend to the widest possible protection against abuses, whether physical or mental.
The Commission also relied on its earlier decision in the John K. Modise Vs Botswana
(2000) AHRLR 25 (ACHPR 1997) where it held that exposing victims to personal
suffering and indignity violates the right to human dignity.
We thus come to the conclusion on this aspect, section 45(5) violates the letter and spirit
of Article 24 of the Constitution as it subjects persons living with mental
illness/impairment to inhuman and degrading treatment in the language used to describe
them, contrary to Article 24 of the Constitution.
Second, it prejudges an individual who is presumed to be mentally ill/impaired as a
criminal lunatic before such person has been tried. This is not only discriminatory but also
contravenes the principle of the presumption of innocence.
Our view is that Section 45(5) of the Trial on Indictments Act gives different treatment to
persons with mental illness/impairment from other people with or without disabilities in
that it imputes criminality on the person of the mentally ill/impaired who has not been
adjudged a criminal. This is discriminatory. Uganda, being a signatory to both the
UNCRPD and the African Charter should have taken and ought to take steps to align
section 45(5) of the Trial on Indictments Act with the Constitution and with its
international obligations. Our judgment is that the presumption of innocence should apply
to all without discrimination.
Thirdly, at the stage where section 45(5) of the Trial on Indictments Act comes into play
during criminal proceedings, the defense has not been heard and the trial has not been

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 concluded. There is no judgment against the accused person convicting him/her of any
offence. Nevertheless he/she is labeled a “criminal lunatic” by statute. The term “criminal
lunatic” imputes to the mind of the accused guilt for an offence for which he/she may not
have been fully tried. This contravenes the constitutional principle of the presumption of
innocence embodied in Article 28(3) of the Constitution.
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.
This has already happened in the case of Uganda v. Tesimana HC Criminal Revision Case
No. MSK-00-CR-CV-0013 of 1999, where Egonda J., as he then was, stayed the criminal
proceedings after the accused had spent 8 years in the criminal justice system without being
tried. The trial court in that case triggered this unfortunate state of affairs when it ordered
that the accused should be taken to hospital for mental examination after she looked to be
of unsound mind. This order was not followed up and she stayed in prison for 8 years
without being tried and without receiving proper treatment. There is dire need to avoid a
recurrence of such injustice.
We therefore find that section 45(5) of the Trial on Indictments Act contravenes Articles
20, 21(1), (2) and (3), 23, 24, 28 and 35 of the Constitution and we so declare .
The words “idiot” and “imbecile” that appear in Section 130 of the Penal Code Act, are
derogatory and detract from the dignity that should be accorded to all disabled persons.
The words idiot and imbecile replaced with woman and girl to be mentally ill or impaired.

RIGHT TO FOOD
What is the right to food?
The right to food is a human right that protects all human beings to live in dignity, free from
hunger, food insecurity and malnutrition and malnutrition. It protects the right of people to feed
themselves in dignity implying that sufficient food is available, that people have the means to
access it and that it adequately meets the individual dietary needs.
The right to food protects the right to all human beings to be free from hunger and malnutrition.
The right doesn’t imply that government has an obligation to hand out free food to everyone who
wants it or a right to be fed. However, if people are deprived of access to food for reasons beyond

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their control eg they are in detention, in times of war or after natural disasters, the right to food
requires the government to provide food directly.
The Special rapporteur on the right to food defines the right to food as follows;
The right to have regular, permanent and unrestricted access either directly or by means of
financial purchases to quantitatively and qualitatively adequate sufficient food
corresponding to cultural traditions of the people for which the consumer belongs, which
ensure a physical and mental, individual and collective fulfilling and dignified life free of
fear.

According to Committee on Economic, Social and Cultural Rights4

The right to adequate food is realized when every man, woman and child, alone or in
community with others, has physical and economic access at all times to adequate food or
means for its procurement.

According to the Food and Agriculture Organisation (FAO), the right to food is not a right to a
minimum ratio of calories, proteins and other specific nutrients or a right to be fed. It is about
being guaranteed a right to feed oneself which requires not only that food is available, that the ratio
of products to the population is sufficient but also that it is accessible meaning that each household
has the means to produce or buy its own food.

The number of malnourished people in the country increased from 4.2 to 4,6 million in 1992-2002.
In 1992, the meal caloric intake per person per day was estimated at 1494 with approximately
83.4% of Uganda’s population falling below the recommended intake with an average of 20200
calories per day.
Food systems are out of control according to a 2011 report by FAO. There were 1.3 tonnes of
waste per year yet almost 1 billion people in the world suffer chronic life stunting nutrition because
they cant access enough food.

Dimensions of the right to food.

the Special Rapporteur on the right to food defined 3 dimensions i.e Food must be available,
accessible and adequate
Availability requires on the one hand that food should be available from natural resources
either through the production of food, by cultivating land or animal husbandry, or through
other ways of obtaining food, such as fishing, hunting or gathering. On the other hand, it
means that food should be available for sale in markets and shops.
Accessibility requires economic and physical access to food to be guaranteed. Economic
accessibility means that food must be affordable. Individuals should be able to afford food

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 for an adequate diet without compromising on any other basic needs, such as school fees,
medicines or rent. For example the affordability of food can be guaranteed by ensuring
that the minimum wage or social security benefit is sufficient to meet the cost of nutritious
food and other basic needs. Physical accessibility means that food should be accessible to
all, including to the physically vulnerable, such as children, the sick, persons with
disabilities or the elderly, for whom it may be difficult to go out to get food. Access to
food must also be guaranteed to people in remote areas and to victims of armed conflicts
or natural disasters, as well as to prisoners. For example, to guarantee physical access to
food to people living in remote areas the infrastructure could be improved, so that they can
reach markets by public transport.

Adequacy means that the food must satisfy dietary needs, taking into account the
individual’s age, living conditions, health, occupation, sex, etc. For example, if children’s
food does not contain the nutrients necessary for their physical and mental development,
it is not adequate. Food that is energy-dense and low-nutrient, which can contribute to
obesity and other illnesses, could be another example of inadequate food. Food should be
safe for human consumption and free from adverse substances, such as contaminants from
industrial or agricultural processes, including residues from pesticides, hormones or
veterinary drugs. Adequate food should also be culturally acceptable. For example, aid
containing food that is religious or cultural taboo for the recipients or inconsistent with
their eating habits would not be culturally acceptable

Furthermore any discrimination in access to food as well as to means and entitlements to its
procurement on the grounds of race, color, age, religion etc constitutes a violation of the right to
food.
The right to food can accordingly be divided into the negative right to obtain food by one’s own
actions meaning the negative obligations in the state not to interfere on the individual right to
obtain food. As well as the positive right to be supplied the food if one is unable to access it.

The Legal Basis of the Right to Food.

The right to food is a human right recognized by international human rights law

Universal Declaration of Human Rights, Article 25:

1. Everyone has the right to a standard of living adequate for the health and well-being of himself
and of his family, including food, clothing, housing and medical care and necessary social services,
and the right to security in the event of unemployment, sickness, disability, widowhood, old age
or other lack of livelihood in circumstances beyond his control.

International Covenant on Economic, Social and Cultural Rights,

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The International Covenant on Economic, Social and Cultural Rights, which is part of the
International Bill of Human Rights, recognizes the right to adequate food as an essential part of
the right to an adequate standard of living (art. 11 (1)). It also explicitly recognizes “the
fundamental right of everyone to be free from hunger” (art. 11 (2)).
In response to the invitation of the World Food Summit Plan of Action (objective 7.4), the
Committee on Economic, Social and Cultural Rights (CESCR) adopted General Comment 12,82
in which it developed the normative content of the right to adequate food reflecting the core
minimum obligations of states as well as obligations of the international community. As indicated
in General Comment 12, the right of everyone to adequate food is realized when everyone has
physical and economic access at all times to adequate food or to the means for its procurement
(para. 6).

GC12 is the most authoritative interpretation of the right to food under the UN and represents the
present state of international law on this matter.
Para 1 cites foundation of the right under art 11 and draws a distinction in 11(1) and 11(2). It draws
urgency to hunger and malnutrition and considers them urgent than in 11. It makes this distinction
again in para 6; the state to take immediate action to mitigate and alleviate hunger.
The comment distinguishes the broad concern of food supply and food availability from the
immediate need to deal with hunger and malnutrition.
Para 4; it links the right to food to human dignity and also says that the right to food is indispensable
for the realization of other human rights. That the R2F is inseparable from the right to social justice.
Para 5; the roots of hunger and malnutrition are not lack of food but lack of access to available
food.
Para 6; also emphasizes that the R2F should not be interpreted in a narrow/restrictive sense to
merely equate it to a minimum package of calories. The approach should be broad so as to facilitate
the realization of the R2F over the long run.
Obligations;
It emphasises that the R2F applies to both state and non-state actors and draws out the different
levels of obligation of the state ;
Obligation to respect existing access adequate food. States not to take any measures that result in
preventing individuals and/or groups from utilising their own efforts to satisfy this right
Obligation to protect; requires measures by the state to ensure that enterprises or individuals do
not deprive persons of their access to food.

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General Comment 12, The right to adequate food (Article 11 of the Covenant), Committee on
Economic, Social and Cultural Rights, UN Document E/C.12/1999/5, 5 May 1999.

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Obligation to fulfill/… the state must proactively engage in activities intended to strengthen access
to and utilization of resources and means of livelihood.
Fulfill/provide; where individuals are unable for reasons beyond their control, the state has an
obligation to fulfil/provide.
Guiding principles;
Non-discrimination, which is premised on article 2(1) of ICESCR, art 2(2) that governments
should guarantee the R2F without discrimination of any ground.
Participation; this should be applied when rights are being interpreted and applied. If groups
concerned participate in programs and decisions related to their right to food, it is more likely that
these programmes would be supported and people’s right to food will be met. Participation as a
human right is established in art 25 of the ICCPR. The GC reaffirms the importance of participation
as follows. It says in para 36 that the formulation and implementation of national strategies for the
right to food requires full compliance with the principles of accountability, transparency, people’s
participation, decentralization, legislative capacity and the independence of the judiciary.
Other instruments;
Art 1(2) ICCPR ;right to self determination; in no case may a people be deprived of their means
of subsistence.
CRC; Art 24(2)(c) which obliges obliges States to combat malnutrition and to provide adequate
and nutritious foods, as well as to provide material support to nutrition programmes.

CEDAW; Art 12 recognises the right of pregnant and lactating women to special protection with
regard to adequate nutrition and Art 14 talks about the right of rural women to equal access to land,
water , social security.
Other sources include the Geneva Conventions Additional Protocol 1 ; art 54(1) prohibits
starvation as a method of warfare. Art 54(2) prohibits destruction of objects indispensable to the
survival of the civilian population
Art 2 of the Genocide Convention; defines genocide to include deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction in whole or in part;
Art 20 on Convention Relating to Status of Refugees;, refugees shall be accorded the same
rationing as nationals.
Convention on the Right of PWDs
Art 25(f) states shall Prevent discriminatory denial of health care or health services or food and
fluids on the basis of disability. and 28(1) States Parties recognize the right of persons with
disabilities to an adequate standard of living for themselves and their families, including adequate
food, clothing and housing, and to the continuous improvement of living conditions, and shall take

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appropriate steps to safeguard and promote the realization of this right without discrimination on
the basis of disability.
At the regional level;
Article 15 of the Maputo Protocol provides; States Parties shall ensure that women have the right
to nutritious and adequate food.

Other international mechanisms on the right to food include;

The Optional Protocol to ICESCR makes the right to food justiciable
The 1974 Universal Declaration on the Eradication of Hunger and Malnutrition.
It declares that
; Every man, woman and child has the inalienable right to be free from hunger and
malnutrition in order to develop fully and maintain their physical and mental faculties. It
is a fundamental responsibility of Governments to work together for higher food
production and a more equitable and efficient distribution of food between countries and
within countries. It is a responsibility of each State concerned, in accordance with its
sovereign judgement and internal legislation, to remove the obstacles to food production
and to provide proper incentives to agricultural producers.

Soft law
Several non-legally binding international human rights instruments, including recommendations,
guidelines, resolutions or declarations, are relevant to the right to food, too.24 They are also called
soft-law instruments. They are accepted by States and serve as guidance for the implementation of
the right to food
The Rome Declaration on World Food Security reaffirmed “the right of everyone to have access
to safe and nutritious food, consistent with the right to adequate food and the fundamental right of
everyone to be free from hunger”. The Declaration of the World Food Summit: five years later,
and several United Nations General Assembly resolutions have reaffirmed the same right.

One such soft-law instrument, and by far the most direct and detailed, is the Voluntary Guidelines
to Support the Progressive Realization of the Right to Adequate Food in the Context of
National Food Security (hereinafter: Right to Food Guidelines). The Right to Food Guidelines
were adopted by consensus in November 2004 by the Council of FAO. They are a practical tool
to help implement the right to adequate food. While they are not legally binding as such, they seek
to reflect existing human rights standards and provide useful guidance to States on how they can
implement their existing obligations.25
They cover the full range of actions to be considered by Governments at the national level in order
to build an enabling environment for people to feed themselves in dignity and to establish
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appropriate safety nets for those who are unable to do so, as well as measures to hold Governments
accountable to rights holders. The Right to Food Guidelines address both State parties and non-
State parties to the International Covenant on Economic, Social and Cultural Rights, whether
developing or developed. States are encouraged to use the Right to Food Guidelines for drafting
their national strategies and programmes to fight hunger and malnutrition. The Right to Food
Guidelines also invite non-governmental organizations (NGOs), civil society organizations and
the private sector to promote and strengthen the progressive realization of the right to adequate
food.
Legal effect;
The Voluntary Guidelines are sometimes called soft law but they lack the legally binding authority.
However, the VGs are a breakthrough pioneer work as an important normative step of the
community of states on the way to a world without hunger. Whereas they lack legal enforceability
states are encouraged to apply them when developing their own strategies, policies and programs.
They are also important for the interpretation of the existing international law guarantees on the
right to food.
In conclusion the VGs are not only an important legal initiative, but they are also an important
political tool for implementation of the right to food. The VGs are therefore to be regarded as
confirmation of the political will to achieve effectively the realization of the right to food.

The right to food in Uganda;

Constitution; right to food and water in objectives.
Objective XIV (b); the state shall ensure that all Ugandans enjoy rights and opportunities and access
to education, health services, clean and safe water, work, decent shelter, adequate clothing, food
security and pension and retirement benefits

Legislation from which we can infer the right to food.

Uganda Food and Nutrition Policy 2003
Expressly recognizes the right to food.
• Ensure an adequate supply of, and access to, good quality food at all times in the country
• Proposed to restrict food aid to alleviating temporary food crisis and to ensure it is safe
for human consumption
The Uganda Nutrition Action Plan 2011–2016
• Uganda’s framework for scaling up nutrition in the first 1000 days of life
• Aims to improve the nutrition status with emphasis on women of reproductive age,
infants and young children

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 • Among the objectives ;to protect households from the impact of shocks and
vulnerabilities that affect their nutrition
Food and Drugs Act 1960..
Uganda National Bureau of Standards Act 1993 which establishes the UNBS; which regulates,
monitors food quality in Uganda.
Uganda Bureau of Statistics Act which established the UBOS for coordinating, monitoring and
supervising the national statistical system to cover matters relating to agriculture land etc
Adulteration of Produce At 2000 which make it criminal to adultery Act linked to s 157, 158 of
the Penal Code Act which prohibit adulteration of food and sale of such. Also S. 167 and 168 Penal
Code.
Land Act as amended; tenure systems, access to land..
Agriculture Chemicals Act 2007 which provides for the regulation and use of agriculture chemicals
so as to protect quality of food as well as bio diversity.

Justiciability of the right to food.

It’s not easy to make a case against the state on the violation of the right to food. Other jurisdictions
have linked the right to food to other human rights.
The link between the right to food and other human rights

Human rights are interdependent, indivisible and interrelated. This means that violating the right
to food may impair the enjoyment of other human rights, such as the right to health, education or
life, and vice versa. The box below shows some examples of this correlation.

Links between the right to food and other human rights

The right to health. Nutrition is a component of both the right to health and the right to
food. When a pregnant or breastfeeding woman is denied access to nutritious food, she and
her baby can be malnourished even if she receives pre- and post-natal care. When a child is
suffering from diarrhoeal disease but denied access to medical treatment, it cannot enjoy an
adequate nutritional status even if he or she has access to food.
The right to life. When people are not able to feed themselves and face the risk of death by
starvation, malnutrition or resulting illnesses, their right to life would also be at stake. .
The African Commission on Human and Peoples’ Rights in the case of The Social and Economic
Rights Action Center and the Center for Economic and Social Rights v. Nigeria, communication
No. 155/96, para. 64. has interpreted the right to food as being implicitly protected under the
African Charter on Human and Peoples’ Rights (1981) through the right to life, the right to health,
and the right to economic, social and cultural development.

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 According to the Human Rights Committee, which monitors the International Covenant on Civil
and Political Rights (1966), the protection of the right to life requires States to adopt positive
measures, such as measures to eliminate malnutrition. (Human Rights Committee, general
comment No. 6 (1982) on the right to life, para. 5. )
The Committee against Torture, which monitors the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (1984), has pointed out that lack of adequate food
in prisons may be tantamount to inhuman and degrading treatment. (CAT/C/CR/33/1, para. 6 (h).)

In State v Makwanyane the court stated that the right to life under the constitution is not simply
to enshrine the right to existence; it is not life as a mere organic matter but the right to live as a
human being in dignity as part of the broader community sharing in the experience of humanity.

The right to life is, in one sense, antecedent to all the other rights in the Constitution.
Without life in the sense of existence, it would not be possible to exercise rights or to be
the bearer of them. But the right to life was included in the Constitution not simply to
enshrine the right to existence. It is not life as mere organic matter that the Constitution
cherishes, but the right to human life: the right to live as a human being, to be part of a
broader community, to share in the experience of humanity.

Malawi Savings Bank v Bonny Brighton Kolombola 1997, the court held that life must not be
limited to breath alone but must extend to all other activities which give breathing to human dignity

Villagram Morales v Guatemala 1999

Court observed that the fundamental right to life ensures that every human being should not be
prevented from having access to the conditions that guarantee a dignified existence.

The right to life is a fundamental human right, and the exercise of this right is essential for
the exercise of all other human rights. If it is not respected, all rights lack meaning. Owing
to the fundamental nature of the right to life, restrictive approaches to it are inadmissible.
In essence, the fundamental right to life includes, not only the right of every human being
not to be deprived of his life arbitrarily, but also the right that he will not be prevented from
having access to the conditions that guarantee a dignified existence. States have the
obligation to guarantee the creation of the conditions required in order that violations of
this basic right do not occur and, in particular, the duty to prevent its agents from violating
it.

Tavares v France the European Commission emphasised that the right to life has to be interpreted
not only to require states to take steps to prevent intentional killing but also to take measures
necessary to protect life against unintentional loss.

Kishen Pattmayak v State of Orissa

The supreme court of India affirmed the right to food as a necessary corollary of a fundamental
right to life.

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Salvatori Abuki
The right to water. The right to food cannot be realized if people lack access to safe drinking
water for personal and domestic uses, defined as water for drinking, washing clothes, food
preparation and personal and household hygiene.
The right to adequate housing. When a house lacks basic amenities, such as for cooking
or storing food, the right to adequate food of its residents may be undermined. Also, when
the cost of housing is too high, people may have to cut down on their food bill. Grootboom
and Ors v South Africa; the constitutional court considered the right to housing, to the right
to life and other related rights.
In this case the applicant, Ms. Grootboom, a member of a large group of 510 children and
390 adults, lived in appalling circumstances in an informal settlement. After having illegally
occupied nearby land earmarked for low-cost housing, the State evicted the community by force,
with no provision for alternative accommodation. Thereafter the community settled on a sports
field.

The South African Constitutional Court declared that there had been a violation of the right to
housing and that the State housing programme had to include measures “to provide relief for
people who have no access to land, no roof over their heads and who are living in intolerable
conditions or crisis situations”

The right to education. Hunger and malnutrition impair children’s learning abilities and
may force them to drop out of school and work instead, thus undermining their enjoyment
of the right to education. Moreover, to be free from hunger and malnutrition, individuals
need to know how to maintain a nutritious diet and have the skills and capacity to produce
or obtain food as a livelihood. Thus access to education, including vocational education, is
essential for the enjoyment of the right to food.
The right to work and to social security. Employment and social security are often crucial
means of obtaining food. On the other hand, minimum wages and social security benefits are
often established taking into account the cost of basic foodstuffs in the market.
Freedom of association and the right to take part in public affairs are also important, in
particular for the most marginalized and excluded, to make their voices heard and their views
reflected in public policies relevant to food so that their right to food will be protected.
The right to information. Information is crucial for the right to food. It enables individuals
to know about food and nutrition, markets and the allocation of resources. It strengthens
people’s participation and free consumer choice. Protecting and promoting the right to seek,
receive and impart information thus facilitates the enjoyment of the right to food.
Freedom from the worst forms of child labour. Children and adolescents suffering from
hunger and malnutrition are often more vulnerable to being recruited into the worst forms of
child labour to survive (e.g., child soldiers, child prostitution). Realizing their right to food
is crucial to prevent this from happening.

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Freedom from torture, cruel, inhuman or degrading treatment. Deprivation or lack of access
to adequate food in prison or other forms of detention may constitute torture or inhuman and
degrading treatment

Obligations of the state.

The most important case that has brought out the obligations of the state is; The Social and
Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria
(Ongoni)

The African Commission considered a communication that violated a wide range of rights
including the right to food, and the Commission had to consider whether or not the militant
government of Nigeria had through action and inaction violated the right to food of the Ongoni
people. While the r2f is not explicitly enshrined in the African Charter, the Commission read this
right into the Charter and held that it was implicit in many other rights.

Held; 64. The Communication argues that the right to food is implicit in the African Charter, in
such provisions as the right to life (Art. 4), the right to health (Art. 16) and the right to economic,
social and cultural development (Art. 22). By its violation of these rights, the Nigerian Government
trampled upon not only the explicitly protected rights but also upon the right to food implicitly
guaranteed.

65. The right to food is inseparably linked to the dignity of human beings and is therefore essential
for the enjoyment and fulfilment of such other rights as health, education, work and political
participation. The African Charter and international law require and bind Nigeria to protect” and
improve existing food sources and to ensure access to adequate food for all citizens. Without
touching on the duty to improve food production and to guarantee access, the minimum core of
the right to food requires that the Nigerian Government should not destroy or contaminate food
sources. It should not allow private parties to destroy or contaminate food sources, and prevent
peoples’ efforts to feed themselves.

66. The government’s treatment of the Ogonis has violated all three minimum duties of the right
to food. The government has destroyed food sources through its security forces and State Oil
Company; has allowed private oil companies to destroy food sources; and, through terror, has
created significant obstacles to Ogoni communities trying to feed themselves. The Nigerian
government has again fallen short of what is expected of it as under the provisions of the African
Charter and international human rights standards, and hence, is in violation of the right to food of
the Ogonis.

Obligation to respect.
The obligation to respect the right to adequate food requires States not to take any measures that
result in preventing individuals and/or groups from utilising their own efforts to satisfy this right.

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In the Ogoni case, cited above, the African Commission held that by destroying the people’s food
sources and arbitrarily evicting them from their homes, the authorities had breached their negative
obligation not to interfere with people’s access to food.

In Residents of Bon Vista Mansions v. Southern Metropolitan Local Council, an action was brought
before the High Court of South Africa, following a local council decision to disconnect the water
supply to the flats, due to non-payment of water charges. The Court found that the applicants had
existing access to water before the Council disconnected their supply; that the conditions and
procedures for disconnection had not been “fair and equitable” in accordance with the applicable
statute, and that the Council’s disconnection of the water supply constituted a prima facie breach
of its constitutional duty to respect the right of existing access to water. The water supply to the
flats was subsequently reinstated.

In Carlos Torres Benvenuto and others v Peru,23 the Inter-American Commission for Human
Rights found that the Republic of Peru violated the rights of pensioners when it failed to pay
monies calculated in the manner established by law, once petitioners began receiving payments
under a specific system: accordingly, the subsequent modifications of pension schemes constituted
a violation of the right to progressive development with respect to economic, social and cultural
standards established under Articles 21, 25 and 26 of the American Convention.

Right to protect
The obligation to protect requires States to ensure that private parties, such as enterprises or
individuals, do not deprive other individuals of access to adequate food. Such measures would
include the enforcement of existing legislation and rule of law guarantees that protect the most
vulnerable segments of society against outside interference. A violation of the obligation to protect
could, for instance, arise in the event of unsafe food being sold and consumed, if this could be
attributed to a failure in establishing or enforcing food safety standards and controls. Another
example could be failure to protect tenants from illegal eviction from their farmland by other
individuals or corporations.
In the Ogoni Case referred to above, the African Commission found that the military Government
of Nigeria had also violated its obligation to protect the right to food, as it did not prevent the oil
companies from depositing oil and waste products that led to the contamination of water for
farming and fishing, the destruction of crops and the death of farm animals: factors which resulted
in malnutrition amongst the Ogoni.
The obligation to fulfill/facilitate
means that the state must pro-actively engage in activities intended to strengthen people’s access
to and utilization of resources and means to ensure their livelihood including food security. These
activities do not necessarily entail the provision of substantial financial resources and could imply
simply ensuring access to information regarding opportunities to satisfy the right to food.
Examples of typical measures to facilitate access to food include education and training, agrarian
reform, policies supportive of urban and rural development, market information etc. General
Comment No 12.

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An example of state involvement in facilitation measures rests in an order made in the case of
People’s Union for Civil Liberties, v Union of India.
In this case, the Supreme Court of India ruled that beneficiaries of various official food security
programmes must enjoy legal entitlements under same, as this would facilitate their access to food.
Furthermore, the Court ruled that Indian States should carefully identify vulnerable groups under
their jurisdiction and ensure that these groups are informed as to the way in which their right to
food may be satisfied. These orders were, however, auxiliary, and the Court was relying on existing
programmes. Similarly, in the as-of-yet unsettled Orissa Starvation Deaths Proceedings,31 the
National Human Rights Commission of India has considered a wide range of measures taken by
the State of Orissa to facilitate access to food, including land reform, soil conservation,
afforestation, primary health care and rural development programmes

From the above analysis it can be concluded that there is nothing inherent in the right to food that
dictates its non-justiciability at the national level. Indeed there are powerful arguments in support
of justiciability of the right to food.

First is the uncontested part that the right to food is already justiciable in a number of countries as
case law indicates. There is a fundamental principle …where everyone has a right to an appropriate
effective remedy when his or her right has been violated.

The question of justicibaility has been answered in the affirmative, appropriate remedies depend
on the nature of the violation eg if a law or state policy or official action violated the negative duty
to respect the right to food, a court might declare the law invalid or order the cessation of the
unlawful.

In respect of the positive obligation to protect and fulfill, a court may direct a state impose
legislation or implement a reasonable program giving effect to the right to food.

Highlighted jurisprudence demonstrate that a wide variety of remedies may be advanced which
take into account available resources, margin of appreciation, progressive realization and the
separation of powers. Eg in Grootboom, the South African Constitutional court declared that there
had been a violation of the right to housing and that the state housing program had to include
measures to provide relief for people who had no access to land, no roof over their heads and who
are living in intolerable conditions or crisis situations.

All levels of obligations regarding the right to food can be and have been found to be justiciable.
However, obligations to respect and to protect, as well as the obligation to extend the right to food
on a non-discriminatory basis, are the least problematic. Obligations to facilitate and to fulfil may
be evaluated on the basis of the reasonableness test, developed and applied by the South African
Constitutional Court.

In conclusion ensuring that victims of violations of the right to food have effective access to justice
(remedies) at the national level, requires more than State and judicial recognition of justiciability.
Awareness of the right to food and the obligations pertaining thereto need to be heightened
amongst rights holders. Additionally, lawyers need to be educated so that they can argue

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effectively for the upholding of this right and judges need to acquire the knowledge to accept such
arguments, when appropriate. In some countries, legislative action may also be advisable to ensure
that the written law of the land adequately reflects the right to food and the obligations of all
branches of the State to uphold it.

Food aid/provide.

As explained in General Comment 121 on Article 11 of the International Covenant on Economic

Social and Cultural Rights, the Right to Adequate Food “… imposes three types or levels of
obligations on States parties: the obligations to respect, protect and fulfil (facilitate and provide)
the right.
The obligation to respect existing access to adequate food requires States parties not to take any
measures that result in preventing such access. The obligation to protect requires measures by the
State to ensure that enterprises or individuals do not deprive individuals of their access to adequate
food.
The obligation to fulfil (facilitate) means the State must pro-actively engage in activities intended
to strengthen people’s access to and utilization of resources and means to ensure their livelihood,
including food security.

Finally, whenever an individual or group is unable, for reasons beyond their control, to enjoy the
right to adequate food by the means at their disposal, States have the obligation to fulfil (provide)
that right directly. This obligation also applies for persons who are victims of natural or other
disasters.”
The obligation is, thus, not to provide for every individual but for those who cannot provide for
themselves, due to age, infirmity or other such reasons.

There exists a wealth of jurisprudence from developing and developed nations on the obligation
to provide. For example, as referenced above, while the final judgment in the PUCL Case has yet
to be delivered, the Indian Supreme Court has issued a number of interim orders, which make the
justiciability of this obligation before national Courts quite clear. Indeed, the Court has issued
orders according to which food grains are to be “provided to the aged, infirm, disabled, destitute
women, destitute men who are in danger of starvation, pregnant and lactating women and destitute
children, especially in cases where they or members of their family do not have sufficient funds to
provide food for them”

Food aid is one of the ways the state can fulfil the obligation to provide. It can save lives in
emergencies through direct provision of food thereby providing the right to food. However, food
may not only be provided free, it comes in various modes eg food to work. Food aid can strengthen
the ability of the poorest to build sustainable livelihoods, thereby fulfilling/facilitating the right to
food. Finally it can insulate the poor from fluctuations in international food process thereby
protecting the right to food of the poor from actions of third parties.

The different modes of food aid.

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There are three main types of food aid: programme food aid, project aid and emergency relief. The
World Food Programme defines these as follows:

“Programme food aid is usually supplied as a resource transfer for balance of payments or
budgetary support activities. Unlike most of the food aid provided for project or emergency
purposes, it is not targeted to specific beneficiary groups. It is sold on the open market, and
provided either as a grant or as a loan.

Project food aid aims at supporting specific poverty-alleviation and disaster prevention activities.
It is usually freely distributed to targeted beneficiary groups, but may also be sold on the open
market and is then referred to as “monetized” food aid. Project food aid is provided on a grant
basis and is channelled multilaterally, through NGOs or bilaterally.

Emergency food aid is destined to victims of natural or man-made disasters. It is freely distributed
to targeted beneficiary groups, and usually provided on a grant basis. It is channelled
multilaterally, through NGOs or sometimes bilaterally.”

There are essentially three paths by which food aid can affect the right to food. It can save lives in
emergencies through direct provision of food, thereby fulfilling (providing) the right to food. It can
strengthen the ability of the poorest to build sustainable livelihoods, thereby fulfilling (facilitating)
the right to food. Finally, it can insulate the poor from fluctuations in international food prices,
thereby protecting the right to food of the poor from the actions of others. This should not, of
course, be read as implying that food aid will necessarily have these beneficial effects, only that
the potential exists under the right circumstances.

Principles of food aid.

The human rights framework offers important incentives to ensure positive effects of food aid on
the realization of the right to food by emphasising the rights and needs of individuals and the duties
of governments, as well as the responsibilities of donors.

In recent years, there has been a significant shift towards project and emergency food aid, which
is better targeted, and for which there is evidence of a stronger positive impact on the Right to
Food. There appears to be an emerging consensus that this trend needs to be further encouraged in
order to strengthen the impact on the Right to Food. This will require action on several fronts,
based on four fundamental principles.

These are: i) that food aid should flow in response to the nutritional needs of the recipients and
should not be used as a means of surplus disposal, ii) that improved procurement and disbursal
methods should be used; iii) that food aid should be used to enable development to the maximum
extent possible and, in particular, iv) that emergency food aid should provide relief in a manner
that also promotes development.

As far as the first principle is concerned, good targeting, at both macro and micro levels is clearly
an essential element. Not only should food aid flow to the countries and regions that need it most,

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but within countries it should flow to the groups that need it most. Food aid thus needs to be based
on a sound needs assessment involving both donors and recipients.

As far as the second principle is concerned, several suggestions for improvement have been made.
One is that food aid should be “untied”, i.e. financial resources should be provided to finance
imports of food (e.g. from neighbouring countries) or, for that matter, to purchase food in the
recipient country itself. This offers the possibility of realizing efficiency gains which may be fairly
large, while stimulating agriculture in the countries where it is procured and providing food that is
culturally appropriate if it is sourced from within the country or from neighbouring countries.
Another possibility is to use the proceeds from the sale of programme or project aid to finance
health interventions such as providing mosquito nets, which may have a larger incremental impact
on nutrition by preventing disease than an extra allocation of cereals.

As far as the third principle is concerned, the emerging consensus sees food aid as an enabler of
development. Food aid can play a helpful role in building up human capital and infrastructure, e.g.
through a food-for-work programme to build roads, bridges, schools and irrigation works. It may
also smooth the process of adjustment to economic shocks by helping to alleviate the costs of
adjustment through food-based safety nets.

The above principle implies that emergency relief in particular should also contribute to
development. This requires attention to a number of points. In emergencies (including crop
failures), people cannot provide food for themselves and food aid that flows into a social protection
strategy (safety net) can be useful in providing the right to food as well as preventing lasting
damage to the productive capacities and livelihoods of the victims, thereby serving to fulfil
(facilitate) the right. Well designed and targeted food-based safety nets can ensure that households
are not forced to sell productive assets to acquire food and can undertake potentially profitable but
riskier investments without fear of the consequences of failure.

Food aid should also balance the donors needs and the recipients needs but not only at the
convenience of the donors or to serve the foreign policy objectives of the donors.

To sum up, food aid has an important role to play in implementing the right to food, provided it is
given in the form of project or emergency aid that is well-targeted.

REFERENCE;

FAO, 2006; “The Right to Food Guidelines; Information Papers and Case Studies”

BIOMEDICAL RESEARCH

Most explanations in these notes were all got from the above reference.
Facts;
MKN Pharmaceuticals a US based company engaged in the research and development of an
HIV/AIDS vaccine, unanimously resolved last month to carry out research in rural areas of
Uganda. The research is to involve taking blood samples from 100 Ugandan rural women in the
reproductive age of 15-49.
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MEMORANDUM TO THE MINISTER OF HEALTH ON LEGAL AND ETHICAL
CONSIDERATIONS.

Introduction.
The Uganda National Council for Science and Technology (UNCST) defines research as ‘any type
of systematic investigation, testing and evaluation, designed to develop or contribute to
generalizable knowledge’.83 The UNSCT defines research involving humans as participants as,
any study involving persons, and directed to the advancement of biomedical or other knowledge,
that cannot be regarded as an element in established clinical management, public health or social
practices and that involves either physical or psychological intervention or assessment or
generation, storage, and analysis of records containing biomedical or other information referable
to identifiable individuals and communities. Research involving humans as research participants
also includes research on any material obtained from a research participant whether the participant
is still living or has died.84

Research involving human participants includes clinical investigations; social-behavioural studies

which involve interaction with or observation of people; basic scientific research to study the
biology of persons or organs and specimens; and systemic collection, storage and analysis of data
on humans’85

Historical antecedents to the law and ethics on research involving human participants.
The Syphilis Study at Tuskegee 1932-197286
Arguably the most notorious example in the United States of the violation of the rights and welfare
of human subjects was the long-term study of black males conducted by the United States Public
Health Service in Tuskegee, Alabama. This study of the natural history of untreated syphilis was
initiated in the 1930s and continued until 1972.

The Syphilis Study at Tuskegee involved approximately 600 African-American men: about 400
with syphilis (cases) and about 200 without syphilis (controls). These men were recruited without
informed consent and, in fact, were led to believe that some of the procedures done in the interest
of research (e.g., spinal taps) were actually “special free treatment.”

By 1936, it was apparent that many more infected men than controls had developed complications,
and 10 years later, reports indicated that the death rate among those with syphilis was about twice
as high as it was among the controls. In the 1940s, penicillin was found to be effective in the
83
Uganda National Council for Science and Technology (UNCST) National guidelines for research involving humans
as research participants (2007).
84
UNCST (n 1 above) 47.
85
UNCST (n 1 above) 1.
86
Protecting Human Research Participants 2011. NIH Office of Extramural Research. http://phrp.nihtraining.com/
See also Brandt, AM. 1978. Racism and Research: The Case of the Tuskegee Syphilis Study. Hastings Center Report
8(6): 21-29 , and in Jones, JH. 1993. Bad Blood: Tuskegee Syphilis Experiment. Rev. ed. New York: Free Press.

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treatment of syphilis. The Syphilis Study at Tuskegee continued, however, and the men were
neither informed about nor treated with the antibiotic.

Outcomes of the Syphilis Study at Tuskegee

The first accounts of this study appeared in the national press in 1972. The resulting public outrage
led to the appointment of an ad hoc advisory panel by the Department of Health, Education and
Welfare (which later was split into the Department of Education and the Department of Health and
Human Services (HHS)) to review the study and develop recommendations to ensure that such
experiments would never again be conducted.

Outcomes included:
1. National Research Act of 1974
2. Basic HHS Policy for Protection of Human Research Subjects87
3. National Commission for the Protection of Human Subjects of Biomedical and Behavioral
Research.

Nazi Medical War Crimes (1939–1945)88

The experiments conducted by Nazi physicians during World War II were unprecedented in their
scope and the degree of harm and suffering to which human beings were subjected. “Medical
experiments” were performed on thousands of concentration camp prisoners and included deadly
studies and tortures such as injecting people with gasoline and live viruses, immersing people in
ice water, and forcing people to ingest poisons.

In December 1946, the War Crimes Tribunal at Nuremberg indicted 20 physicians and 3
administrators for their willing participation in the systematic torture, mutilation, and killing of
prisoners in experiments. The Nuremberg Military Tribunals found that the defendants had:
 Corrupted the ethics of the medical and scientific professions
 Repeatedly and deliberately violated the rights of the subjects

The actions of these defendants were condemned as crimes against humanity. Sixteen of the
twenty-three physicians/administrators were found guilty and imprisoned, and seven were
sentenced to death.

In the August 1947 verdict, the judges included a section called Permissible Medical
Experiments. This section became known as the Nuremberg Code89 and was the first international
code of research ethics.
This set of directives established the basic principles that must be observed in order to satisfy
moral, ethical, and legal concepts in the conduct of human subject research. The Code has been
the model for many professional and governmental codes since the 1950s and has, in effect, served
as the first international standard for the conduct of research.

87
(http://www.hhs.gov/ohrp/humansubjects/guidance/45cfr46.html)
88
Annas, GJ, and Grodin, MA. 1992. The Nazi Doctors and the Nuremburg Code, Human Rights in Human
Experimentation. New York: Oxford University Press.
89
(http://ohsr.od.nih.gov/guidelines/nuremberg.html

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The Code provides ten Directives for Human Experimentation

1. Voluntary consent of the human subject is absolutely essential

2. The experiment must yield generalizable knowledge that could not be obtained in any other way
and is not random and unnecessary in nature
3. Animal experimentation should precede human experimentation
4. All unnecessary physical and mental suffering and injury should be avoided
5. No experiment should be conducted if there is reason to believe that death or disabling injury
will occur
6. The degree of risk to subjects should never exceed the humanitarian importance of the problem
7. Risks to the subjects should be minimized through proper preparations
8. Experiments should only be conducted by scientifically qualified investigators
9. Subjects should always be at liberty to withdraw from experiments
10. Investigators must be ready to end the experiment at any stage if there is cause to believe that
continuing the experiment is likely to result in injury, disability or death to the subject.

1963 Jewish Chronic Disease Hospital Study Studies were undertaken at the Jewish Chronic
Disease Hospital in New York to develop information about the human immune systemʼs response
to cancer. Live cancer cells were injected into chronically ill and debilitated patients who were
told they were receiving a skin test. The investigators were eventually prosecuted and found guilty
of fraud, deceit, and unprofessional conduct.

1963-1966 Willowbrook Study

Studies were carried out at the Willowbrook State School for “mentally defective persons,” to gain
an understanding of the transmission of infectious hepatitis and, subsequently, to test the effects
of gamma globulin in preventing or ameliorating the disease.

Residents of Willowbrook, all of whom were children, were deliberately infected with hepatitis,
by ingesting the stools of infected persons or receiving injections of morepurified virus
preparations. The investigators maintained that hepatitis infection was inevitable for this
population; however, critics asserted that the consent process was unethical because coercive
tactics were employed as only children whose parents gave permission to participate in the studies
were admitted to Willowbrook.
.

Legal and ethical Considerations in biomedical research

The Nazi regime atrocities mentioned above and subsequent events created an urgent need to
regulate the conduct of clinical research in order to hold scientists and researchers accountable. As
a result a number of instruments have been drawn up

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International human rights instruments.

Various human rights instruments protect the rights of human subjects of scientific or medical
experimentation. Both the Universal Declaration on Human Rights (Universal Declaration) Art 5
and the International Covenant on
Civil and Political Rights (ICCPR) art 7 of the ICCPR , provide that ‘[n]o person shall be subject
to torture or to cruel, inhuman and degrading treatment or punishment’.90 Following the Nazi
atrocities, the ICCPR specifically provided that ‘no one shall be subjected without his free consent
to medical or scientific experimentation’.13
According to the Human Rights Committee (HRC), General Comment 20:91 the aim of article 7
is to protect the dignity and the physical and mental integrity of the individual.92 The provision
does not allow any limitation and thus is non-derogable. No justification or extenuating
circumstance whatsoever may be invoked to excuse its violation.93 The prohibition extends to both
physical pain and mental suffering. The HRC has emphasised that article 7 expressly prohibits
medical or scientific experimentation without the free consent of the person concerned.

According to the HRC, special protection in regard to such experiments is necessary in the case of
persons not capable of giving valid consent, and in particular those under any form of detention or
imprisonment. Such persons should not be subjected to any medical or scientific experimentation
that may be detrimental to their health.94 Art 4(2)(h) of the Women’s Protocol to the ACHPR also
enjoins states parties to take appropriate and effective measures to ‘prohibit all medical or scientific
experiments on women without their informed consent’.

In addition to the above instruments, there has been other soft-law documents that have been
enacted to guide biomedical research. These ‘soft laws’ may not be binding as such but the norms
contained therein may form part of customary international law, if they have been subjected to
intensive state practice.

1964 Declaration of Helsinki

The World Medical Association drafted the first international agreement recommending ethical
standards for clinical research. Like the Nuremberg Code, the Declaration makes informed consent
a central requirement for ethical research. The Declaration does, however, allow for surrogate
consent when the research subject is incompetent, physically or mentally incapable of giving
consent, or a minor. The Declaration, which has undergone multiple revisions, also states that
research with these groups should be conducted only when the research is necessary to promote
the health of the population represented and when this research cannot be performed on legally
competent persons.

It requires that research should be carried out by medically or scientifically qualified persons. It
also emphasises the requirement that the risks of research should not exceed the benefits. The

90
Art 5 of the Universal Declaration
91
Human Rights Committee, General Comment 20: ‘Article 7 (Prohibition of torture, or other cruel, inhuman or
degrading treatment or punishment’ Forty-fourth session, 1992, UN Doc/HRI/GEN/1/Rev 1 30.
92
Para 1
93
Para 3
94
Para 7

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Declaration enjoins medical researchers to ensure that ‘considerations related to the well-being of
the human subject should take precedence over the interests of science and society’.95 The
Declaration stresses promotion and respect of health and human rights of all human beings and
calls for special attention to the vulnerable and disadvantaged and those who are unable to give or
refuse consent.96

According to the Declaration, it is the ‘duty of every physician in medical research to protect the
life, health, privacy and dignity of the human subject’. The Declaration also stresses the respect of
integrity and confidentiality of the research subject and declares that ‘subjects must be volunteers
and informed participants in the research subject’.The research design and execution should
conform to acceptable scientific principles and the importance of the research objective should
outweigh ‘the inherent risks and burdens to the subject’. The Declaration emphasises that ‘medical
research is only justified if there is a reasonable likelihood that the population in which the research
is carried out stand to benefit from the results of the research’.97

It should be noted that the Declaration of Helsinki is a standard setting instrument for medical
research in many countries, including Uganda. The Declaration plays a critical role in ensuring
that fundamental human rights and freedoms of research participants are respected. The
Declaration complements human rights instruments in protecting the rights of disadvantaged
populations and participants in biomedical research.98 It may be argued that norms in the
Declaration have acquired the status of customary international law, which is directly applicable
to states, including Uganda.

The UNESCO Declaration

According to the Preamble to the Declaration, the Declaration recognises the fact that scientific
and technological developments can be of great benefit to humankind in improving the quality of
life. However, it cautions that such developments should promote ‘the recognition of the human
person and universal respect for, and observance of human rights and fundamental freedoms’
contained in key fundamental documents such as the CESCR, CRC, CEDAW, and ICCPR.

The Declaration calls for respect of human dignity, autonomy, consent and other human rights and
the need to maximise benefits and minimize harm to patients, research participants, and other
affected individuals.99

On the question of consent, Art 6(1) of the Declaration provides that any preventive, diagnostic
and therapeutic medical intervention must be carried out with the prior, free and informed consent
of the person concerned, based on adequate information.

95
Principle A(5).
96
Principle 8.
97
Principle B
98
A Plomer ‘In Defence of Helsinki and Human rights’ (2012) 5 South African Journal of Bioethics & Law 83. Cited
by Twinomugisha
99
Arts 3 - 6.

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The Declaration in Arts 9 - 11. calls for protection of individuals and groups with special
vulnerability and stresses the promotion of equity, justice, non-discrimination and non-
stigmatisation

Consequently, the Declaration addresses the question of sharing the benefits of research in order
to minimise the possibilities of exploitation. Art 15 provides that the benefits from scientific
research should be shared with society and the international community as a whole in particular
with developing countries. Any scientific and technological progress should advance, inter alia,
access to quality health care and essential medicines.100 Professionalism, honesty, integrity and
transparency should be promoted in the decision making process.101 It can be stated that the
Declaration adopts a human rights based approach and is thus an important document for
regulation of research involving human subjects.

1982 CIOMS Guidelines

The Council for the International Organization of Medical Sciences (CIOMS) published the
International Ethics Guidelines for Biomedical Research Involving Human Subjects (CIOMS
Guidelines). These guidelines are designed to assist investigators from technologically advanced
countries to conduct ethical research involving human subjects in resource-poor countries. These
21 guidelines addressed issues including informed consent, standards for external review,
recruitment of subjects, and more.

The CIOMS Guidelines recognise the fact that the Declaration of Helsinki has influenced the
formulation of international, regional and national legislation and codes of conduct in both
developed and developing countries. Consequently, the major concern of the Guidelines is how
the Declaration can be applied in developing countries given their peculiar socio-economic
circumstances. The Guidelines focus on the human rights of research subjects paying particular
attention to respect for autonomy and the protection of vulnerable persons. According to the
Guidelines, vulnerability refers to

a substantial incapacity to protect one’s own interests owing to such impediments as lack
of capability to give informed consent, lack of alternative means of obtaining medical care
or other expensive necessities, or being a junior or a subordinate member of a hierarchical
group.54

The document is divided into two parts: general ethical principles and the guidelines

The Guidelines are based on three general ethical principles. The first is the principle of respect
for persons, which covers respect for autonomy and capacity for self-determination, and protection
of persons with impaired or diminished autonomy. The second is the principle of beneficence,
which refers to the obligation to maximise benefit and to minimise harm. This principle requires
that the risks of research should be reasonable in light of the expected benefits; the research design
should be sound; the investigators should be competent; and the welfare of the research subjects
should be safeguarded. The principle also prohibits the deliberate infliction of harm on persons

100
Art 14(2)(a).
101
Art 18.

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(non-malfeasance). The third is the principle of justice, which refers to the obligation ‘to treat each
person in accordance with what is morally right and proper, to give each person what is due to him
or her’. This principle underlines distributive justice, which calls for the equitable distribution of
both the burdens and the benefits of participation in research. The principle of justice also requires
that the research project should benefit developing countries or communities where the research is
carried out: it should positively respond to their health needs and priorities by ensuring that any
product developed is reasonably available to them.

There are twenty one guidelines and each is accompanied by a commentary. The first guideline is
to the effect that biomedical research involving human subjects must be ethically justified and
scientifically valid. The ethical justification for such research is the prospect of discovering new
ways of benefiting people’s health. The research must respect, protect and be fair to the research
subjects. The research must also be morally acceptable within the communities where it is carried
out. The second guideline is that all proposals to conduct research involving human subjects must
be submitted for review for their scientific merit and acceptability to one or more scientific and
ethical review committees. The third guideline requires that externally sponsored research
protocols should be submitted for ethical and scientific review in the country of the sponsoring
organisation. The fourth guideline addresses the critical question of informed consent. According
to the commentary to this guideline, informed consent is a decision to participate in research, taken
by a competent individual who has received the necessary information; who has adequately
understood the information; and who, after considering the information, has arrived at a decision
without having been subjected to coercion, undue influence or inducement, or intimidation.

The fifth guideline outlines essential information that must be provided to prospective subjects in
order for them to give or refuse or withdraw consent. The information must be in a language or
another form of communication the individual can understand. Such information should include
the fact that participation is voluntary; the right to refuse to participate in the research; the right to
withdraw from the research; and the purpose of the research and any foreseeable risks. The sixth
guideline lays down the obligations of sponsors and investigators in respect of informed consent.
They must refrain from deception, undue influence or intimidation and ensure that the subject has
adequate understanding of relevant facts about the proposed research and the consequences of
participation.

The seventh guideline concerns inducement to participate in research. Research subjects may be
reimbursed lost earnings, travel costs and other expenses incurred in taking part in the study and
may also receive free medical services. They may also be compensated for the income and time
lost. The eighth guideline is about the benefits and risks of the study population. The investigator
must ensure a balance between potential risks and benefits and that the former are minimised.

The ninth guideline places special limitations on risk when research involves individuals who are
not capable of giving informed consent. The tenth guideline addresses the special situation of poor
populations and communities. Before undertaking research, a sponsor or investigator must ensure
that the research is responsive to the health needs and the priorities of the population or community
in which it is to be carried out. The sponsor or investigator must also ensure that any intervention
or product developed, or knowledge generated, will be made available for the benefit of the
population or community.

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The eleventh guideline deals with choice of control in clinical trials while the twelfth guideline
concerns the equitable distribution of burdens and benefits in the selection of groups of subjects in
research. The exclusion of groups or communities that might benefit from participation in the
research must be justified. Given that vulnerable individuals may lack power, intelligence,
education or resources or attributes to protect their rights or interests, the thirteenth guideline calls
for special justification for inviting vulnerable individuals to participate in the research. If
vulnerable individuals are selected, their rights and welfare must be strictly protected. Research
involving vulnerable individuals may for example be justified where the research will yield
knowledge that will lead to improved diagnosis, prevention or treatment of diseases or health
problems unique to the vulnerable group.

The fourteenth guideline deals with research involving children. The investigator must ensure that
the purpose of the research is to obtain knowledge relevant to the health needs of children; a
parental or legal representative of each child has given permission; the assent or cooperation of
each child has been obtained to the extent of his or her capabilities; and a child’s refusal to
participate in the research should be respected.59 The fifteenth guideline is about research
involving persons with mental or behavioural disorders. The guideline recognises that persons with
mental or behavioural disorders are capable of giving consent. However, some of these persons
may be incapable of giving adequately informed consent. Consequently, such persons will not
participate in research that might as well be carried out on persons who are capable of giving the
requisite consent. The purpose of the research must be to obtain knowledge relevant to the specific
health needs of persons with mental or behavioural disorders. The consent of each subject must be
obtained to the extent of his or her capabilities and his or her right of refusal must be respected.
Where the person lacks capacity to consent, permission may be obtained from a responsible family
member or a legally authorized representative.

The Guidelines recognise that women have over the years been excluded from biomedical research
and have therefore lost out on the benefits of research. Consequently, the sixteenth guideline
enjoins investigators, sponsors or ethical review committees to include women of reproductive age
in biomedical research. According to the seventeenth guideline, pregnant women are presumed to
be capable of participating in research. However, they should be adequately informed about the
risks and benefits to themselves and their fetus. The research to be carried out should be relevant
to the specific needs of the pregnant woman or her fetus or to the health needs of women in general.

There have been instances of research subjects suffering injury as a consequence of their
involvement in research. Consequently, the nineteenth guideline tackles the question of
compensation of subjects who have been injured as the result of their participation in the research.
The guideline obliges investigators to ensure that injured subjects receive free medical treatment.
They should also be provided with financial or other assistance that would compensate them
equitably for any impairment or disability. In case of death of a research subject, the dependents
are entitled to compensation. In no circumstances should subjects be required to waive their right
to compensation. The twentieth guideline is about strengthening the capacity for ethical and
scientific review and biomedical research. The last guideline requires external sponsors to provide
health services that are essential to the safe conduct of the research and for treatment of subjects
who suffer injury as a result of the research.

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Since the research is about HIV/AIDS vaccine, it should follow;

UNAIDS/WHO Guidance Document.

The UNAIDS/WHO Guidance Document (Guidance Document) enjoins researchers and trial
sponsors to ensure that the affected community participates in the proposed research. The
community should be consulted through a transparent and meaningful participatory process which
involves them in an early and sustained manner in the design, implementation, monitoring, and
distribution of the results of biomedical HIV prevention trials.61

Researchers and trial sponsors should carry out such trials only in countries and communities that
possess the capacity to carry out independent and competent scientific and ethical reviews.62
Participation in the trials should be voluntary and the selection of the participants must be fair in
accordance with the goals of the research.63 On informed consent, the Guidance Document
provides as follows:

Each volunteer being screened for eligibility for participation in a biomedical HIV
prevention trial should provide voluntary informed consent based on complete, accurate,
and appropriately conveyed and understood information before s/he is actually enrolled in
the trial. Researchers and research staff should take steps to ensure throughout the trial that
participants continue to understand and to participate freely as the trial progresses.
Informed consent with pre-and post-test counselling, should also be obtained for any
testing for HIV status conducted before, during, and after the trial.

The research protocol should pay particular attention to the rights, the safety, dignity, and welfare
of vulnerable participants.65 Women should be included in clinical trials in order to benefit from
future safe and effective biomedical HIV prevention interventions. Women should be provided
with adequate information about possible risks to themselves as well as to their foetuses or
breastfed infants, where applicable. Children and adolescents should be recruited into clinical trials
in order to benefit from future biomedical HIV prevention interventions. Researchers and trial
sponsors should pay specific attention to the safety, ethical, and legal considerations relevant for
children and adolescents. Their rights and welfare should be safeguarded during participation in
the research.

The research protocols should specify the potential harms resulting from participation in the
research and the possible measures to minimize and mitigate or remedy the harm. The protocols
should also provide an accurate statement of the anticipated benefits of the trial. Participants who
may acquire HIV infection during the trial should be provided access to internationally recognised
treatment regimens.

The national framework

It is important to point out here that the Constitution is the primary legal instrument that contains
human rights and freedoms, which apply to research involving human beings as participants. Thus,
researchers, sponsors and others must observe such rights as health; equality and
nondiscrimination; the right to life; liberty; privacy and confidentiality; and freedom from cruel,

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torture, inhuman and degrading treatment. In addition to the Constitution, this section considers
other instruments, which are critical for the research under scrutiny.

The Uganda National Council for Science and Technology Act

The Act establishes the Uganda National Council for Science and Technology (UNCST), which
is mandated to clear all research to be undertaken in the country.( Sec 2 of the Act) Any person or
organisation intending to carry out research in Uganda should register with the council. One of the
functions of the UNCST is to advise and coordinate the formulation of an explicit national policy
in all fields of science and technology.( Sec 4(a).)
The council is also mandated ‘to work in close cooperation with and coordinate all scientific and
technological activities of persons, institutions, sectors and organizations’.

The National Drug Policy and Authority Act

The main purpose of the Act is to ensure the availability of essential, efficacious and cost-effective
drugs to the Ugandan population. The Act provides for a national drug policy, which shall inter
alia, intensify research in all drugs, including traditional medicines.102The Act also establishes a
National Drug Authority (NDA), whose functions include the development and regulation of drugs
in the country, and encouraging research and development of herbal medicines.103According to the
Act, the NDA may issue a certificate to any person for the purpose of carrying out clinical trials in
respect of a drug that may be specified in the certificate. The Act prohibits any person from
carrying out clinical trials in respect of any drug unless he or she is in possession of a certificate
issued by the authority.104

Therefore, MKN should acquire such a certificate since the company is engaged in development
of a vaccine for HIV/AIDS.

The HIV and AIDS Prevention and Control Act 2014

The Act specifically provides for biomedical research in the context of HIV/AIDS and empowers
the minister in collaboration with other relevant agencies to
institute clinical trials on HIV and AIDS vaccines, medicines and other related bio-products
within the country provided that such trials shall not endanger the health of persons
undergoing such trials.105

The research must be in conformity with UNCST guidelines above ‘or any other written law in
force’, which, in my view, include the legal instruments outlined above. The Act requires that the
bio-medical research should ‘be with the written informed consent of persons on whom research
is to be carried out’. In the case of a minor, the parent or guardian should provide the written
informed consent. The person should ‘be adequately informed of the aims, methods, anticipated
benefits and the potential hazards and discomforts of the research’. The participant should also be
facilitated.106

102
Sec 2(g).
103
Sec 5(a) & (g).
104
Sec 40
105
Sec 29(1).
106
S. 30

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The UNCST National Guidelines
The major purpose of the Guidelines, whose design was largely guided by
the legal, ethical and administrative frameworks considered above, is to ‘provide a national
framework for harnessing the benefits of research while ensuring that the rights, interests, values
and welfare of research participants are protected’.

According to the Guidelines, research involving humans as research participants includes: clinical
investigations; social-behavioural studies which involve interaction with or observation of people;
basic scientific research to study the biology of persons or organs and specimens; and systemic
collection, storage and analysis of data on humans.96

The rights of the research participants include: to participate in ethically acceptable research;
respect for autonomy, culture, beliefs and values; information about the research; protection
against research related injuries, harm and other forms of abuse; privacy and confidentiality;
decision whether to participate in the research or not, or withdraw at any time without penalty;
access to quality standard of available health care; and compensation for research related injuries
and costs.97

The Guidelines provide that the welfare of research participants can be attained through provision
of health care beyond research related care; optimisation of collateral benefits to the research
communities; provision of good client care during study investigations and procedures; and taking
measures to ensure that the community accesses the test drug or device, if proven beneficial. In
order to protect the rights and welfare of the research participants, the Guidelines call for
observance of the ethical principles of respect for persons, beneficence, non-malfeasance, and
justice.98

The Guidelines provide for regulation of research projects by Institutional Review Committees
(IRCs), whose main function is to review and approve the projects with the aim of protecting the
rights and welfare of research participants. The IRCs have a special role of monitoring research
activities to ensure compliance with scientific and ethical requirements.

According to the Guidelines, research should be scientifically and ethically valid. The informed
consent process should be observed.99 The potential participants should be accurately informed
of the purpose, methods, risks, benefits and alternatives to research so as to make a voluntary
decision whether or not to participate. Participants must have an adequate understanding of all the
material facts and of the consequences of participation in the research.

The Guidelines oblige researchers and trial sponsors to pay particular attention to the rights,
interests and welfare of vulnerable persons and groups such as children, mentally ill persons, and
disabled children. Before involving a child in research, the risk should be justified by the
anticipated benefits to the child and the ‘relation of the anticipated benefit to the risk is at least
favourable to the research participants [children] as that presented by available alternatives’.101 It
must be shown that the participation of the child is indispensable and is in his or her best interests.

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It is stressed in the Guidelines that there should not be any financial or other inducements to the
child to participate in the research except for reimbursements or a token after completion of the
study. For mentally ill persons, consent of each potential research participant should be obtained
to the extent of his or her abilities. For those who are incapable of giving consent, it can be obtained
from the guardian or representative.

The Guidelines prohibit research on pregnant women and their fetuses unless appropriate studies
have been done on animals and non-pregnant individuals and have been completed and the risk to
the fetus is minimal. It must be shown that the purpose of the research project is to meet the health
needs of the particular fetus and the parents are legally competent and have given informed
consent. Since this research is restrictive to women, the question of pregnant women should be
seriously considered.

The Uganda Guidelines for AIDS Research

The main objective of the Guidelines107 is to provide overall guidance for scientific, legal, ethical
and policy issues in HIV/AIDS research, development and evaluation in Uganda. The Guidelines
describe Uganda’s policy, ethical and legal frameworks for conducting HIV/AIDS research in the
country. The Guidelines call for careful consideration of human rights, ethical and legal aspects of
conducting HIV/AIDS research.

According to the Guidelines, researchers and trial sponsors should pay particular attention to issues
such as informed consent; health care for volunteers; confidentiality; and compensation of
volunteers. Individual volunteers should be provided with pre-test counselling each time an HIV
test is administered. Post-test counselling including appropriate referrals should also be provided
to HIV-infected individuals identified during the screening process. Prevention counselling should
also be provided to HIV free individual volunteers. The Guidelines require written, individual
informed consent, which is an on-going process that begins with community outreach and
consultation, and continues with one-on-one counselling sessions during the screening and
enrolment process. The informed consent must be revisited and reviewed at every study visit.

Conclusion.

Therefore, it is pertinent that in allowing the MKN to draw the blood samples of 100 women in
rural areas, the above legal and ethical considerations should be adhered to. Most especially the
concept of free consent, offering pre and post research HIV counselling, special consideration to
pregnant women and ensuring that there is minimization of risks and maximization of benefits.

5 Liability in research involving human as participants

In Chapter 8, we saw that a health care professional such as a doctor has a duty to of care to a
patient and breach of that duty may give rise to a medical malpractice action. We also saw in the
previous chapter that consent to treatment is at the heart of a patient’s right to self-determination
and dignity. In this chapter, I stress the fact that researchers, research institutions, review

107
UAC Uganda guidelines for AIDS vaccine research: A guide for vaccine research, development and evaluation
(2005).

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committees, and research sponsors have a responsibility to ensure that informed consent of
research subjects is procured. They have a duty to protect human subjects from a foreseeable harm
that could occur during the course of the study. Liability will arise where research is conducted
without informed consent from the subjects first being obtained. I have not come across local cases
on the subject of bio-medical research. However, cases such as Halushka and Weiss below are
persuasive authorities for the thesis that the standard of obtaining consent in the research context
is higher than the standard of consent to treatment, which we saw in the preceding chapter.

In the Canadian case of Halushka v University of Saskatchewan & Others,103 the defendants were
conducting research in the field of anaesthesia. The plaintiff agreed to participate in the test of a
new anaesthetic drug after being assured by the doctors that their experiment was a safe test. The
plaintiff was not told about the risks and never had any therapeutic benefits of the research. He
sued the doctors for trespass to the person and negligence. Hall J stated that the subject of medical
experimentation is entitled to a full and frank disclosure of all the facts, probabilities and options
which a reasonable man might be expected to consider before giving his consent. The judge
emphasised that research participants are entitled to full and frank disclosure of all ‘facts,
probabilities and opinions’104 that a reasonable person would wish to consider before providing
consent.

In Weiss v Solomon,105 a 62 year old patient who had undergone cataract surgery was
recommended by a surgeon to participate in a study on the ability of an eye drop solution to
diminish the retinal swelling that tends to follow that operation. He volunteered to participate in
the study.

The consent form stated as follows:

Some patients may develop a minor allergic reaction to this injection, but the majority of
patients have no side effects … I have been told the possible side effects and unfavorable
reactions that can happen and what my alternatives are. I have had a chance to ask questions
to the doctor and have received acceptable answers.106

Shortly after being injected, the patient’s blood pressure dropped and he died. The deceased family
sued the principal investigator, the hospital and a physician. The Quebec Supreme Court decided
the case in favour of the plaintiff on grounds that the informed consent procedure was flouted. The
court found that the duty to inform in matters relating to purely scientific experimentation is the
most exacting possible and includes the disclosure of all known risks including those that are
remote, especially if they may result in grave consequences. De Blois stated:

The Research Committee of the hospital must be aware of that which its participants and
members know. Even if the consent form to be obtained from the research subjects does
not fall under any regulations, we should ask ourselves why the risk … was minimized in
the consent form, whereas it should have been explained in detail.107

It should be noted that a plaintiff may decide to base his or her claim on the common law principles
of malpractice under tort law. However, the plaintiff may also decide to invoke human rights law,
alleging violations of the right to self-determination, human dignity, and privacy as provided in
the instruments considered above. In Gelsinger v Trustees of the University of Pennsylvania,108

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an 18 year old male with a rare genetic liver disease, enrolled in a phase I clinical trial of gene-
therapy treatment conducted at the University of Pennsylvania. A serious unfavourable reaction
occurred, and Gelsinger experienced multiple organ failure and died days later. The plaintiffs sued
the trustees of the university, 2 hospitals affiliated with the research, the former dean of the medical
school and a bioethicist. They based the claim on wrongful death, assault and battery due to a lack
of informed consent, and fraud or misrepresentation linked to the informed consent process. They
alleged a conflict of interest on the part of the primary investigator in terms of pecuniary gain for
trial success; failure to report previous adverse effects; the enrolment of unqualified subjects
including Gelsinger; and approval of inadequate informed consent documents and procedures.109
However, the case was settled out of court.

In Robertson v McGhee,110 a Protocol for Phase I study of a cancer vaccine was approved. Many
of the patients who enrolled in the study had advanced disease, were unresponsive to standard
therapies and had very poor prognoses. The vaccine was received by 92 subjects but unfortunately
29 died in the course of the study. The clinical trial’s nurse coordinator had advised the Institutional
Review Board’s Chair of problems with quality control, patient care, reporting of adverse events,
and adherence to the study protocol. In 2000, the Office of Human Research Protection had also
found that the IRB Chair had unilaterally approved retrospective changes to the research protocol,
and that continuing review had not been properly carried out. The IRB had also failed to ensure
that additional safeguards were included in the study. The consent forms also did not adequately
describe the study’s risks, and overstated its benefits. There were even problems of privacy and
confidentiality. The plaintiffs sued the hospital, the principal investigator, the sponsor, a top
university official and the bioethicist for specific, general and punitive damages. However, the
court dismissed the case on a technicality: that it had no jurisdiction to hear the case. It should be
noted that the Robertson case was based on international law rather than the standard medical
malpractice. The plaintiffs alleged, amongst other things, the breach of the right to be treated with
dignity, citing the Nuremberg Code and the Declaration of Helsinki examined above.

In Abdullahi v Pfizer,111 it was alleged that the defendant improperly administered an

experimental antibiotic to children in Nigeria during an outbreak of bacterial meningitis, measles
and cholera in Kano, Northern
Nigeria. The guardians of some of the children instituted a suit in the Southern District of New
York, alleging violations of norms of international law contained in instruments such as the
Nuremberg Code, the Declaration of Helsinki, the ICCPR, and the US Food and Drug
Administration’s regulations. They also averred that the court had jurisdiction over the matter
under the Alien Torts Claim Act. The case was sent back to the District Court to determine whether
the US or Nigeria was the appropriate forum for the case.

6 Conclusion
Medical research involving humans as participants has significantly contributed to the
understanding of disease and other health challenges. However, the research may also present
burdens and risks to the volunteers or patients who participate in the research. If not effectively
regulated, medical experimentation on humans may have deleterious consequences for human
health.

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There are sufficient legal, ethical and administrative frameworks to regulate, monitor and evaluate
research involving human participants in Uganda. These frameworks, which may be strengthened
by the common law principles on consent considered in the preceding chapter, stress the
importance of informed consent and the need to minimise risks and maximise benefits for research
participants and their communities. Thus, researchers and sponsors must focus on the rights,
interests, welfare and the general well-being of the research participants especially the vulnerable
and disadvantaged members of society such as women, children and persons with mental disorders.
Researchers should take into account gender differences in the study design and analysis so that
women and men’s special health interests are catered for. Researchers must take reasonable care
not to subject the participants to harm. Participants who suffer injury or harm should be
compensated and provided with the necessary health care. Participants should where possible be
involved in the formulation of the research instruments so that they are able to know what the
research is about and the consequences of participation.

Researchers should avoid a paternalistic attitude by openly discussing the benefits and risks of
research with the participants. The latter should receive feedback from the researchers about the
results of the research and how they will benefit from it. Researchers should be aware that failure
to observe critical elements of the research process such as informed consent may give rise to an
action in trespass and or negligence.

The UNCST should actively play its regulatory role by ensuring that the standards set out in the
above instruments are observed. It should monitor the activities of researchers and investigators to
ensure that the consent obtained from the participants is genuine and is in the latters’ best interests.
There is a need for UNCST to sensitise and educate potential participants about their rights so that
they are able to challenge any unscrupulous actions of the researchers and their sponsors, who may
seek to take advantage of poverty and the low level of awareness amongst the people.

The UNCST national guidelines should be translated into local languages and distributed to
communities.
UNCST should ensure that any research carried out is culturally appropriate and in the best
interests of the participants and their communities. Short of this, the benefits would enrich the
multinational drug companies sponsoring the research to the detriment of the country. In the long
run, the government should build capacity in the field of scientific research so that it does not
depend on developing countries and their pharmaceutical companies to conduct research in the
field of health care.

As cases from other jurisdictions have illustrated, researchers, review boards, sponsors and doctors
must ensure that research involving human as participants is carried out in accordance with norms
and standards such as informed consent, dignity, privacy and confidentiality, which are outlined
in the instruments considered above. Short of this, they might be arraigned in court for special,
general and punitive damages, and of course this compromises the reputation of the researchers
and the institutions they are attached to, including universities and hospitals.

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SEXUAL AND REPRODUCTIVE HEALTH RIGHTS.108

What are SRHR?

SRHR are core components of the broader right to health. At the International Conference on
Population and Development (ICPD), reproductive health was defined as a ‘state of complete
physical, mental and social well-being and not merely the absence of disease or infirmity, in all
matters relating to the reproductive system and to its functions and processes’.109 Reproductive
health also implies ‘that people are able to have a satisfying and safe sex life and they have the
ability to reproduce and the freedom to decide if, when and how often to do so’. Reproductive
health ‘also includes sexual health, the purpose of which is the enhancement of life and of personal
relations, and not merely counselling and care related to reproduction and sexually transmitted
diseases’.110

The World Health Organisation (WHO) has defined sexual health as:
A state of physical, emotional, mental and social well-being related to sexuality; it is not
merely the absence of disease, dysfunction or infirmity. Sexual health requires a positive
and respectful approach to sexuality and sexual relationships, as well as the possibility of
having pleasurable and safe sexual experiences, free of coercion, discrimination and
violence. For sexual health to be maintained, the sexual health of all persons must be
respected, protected and fulfilled.111

It should be noted that there is no universally recognised definition of sexual health rights.
However, according to the WHO, sexuality ‘is a central aspect of being human throughout life and
encompasses sex, gender identities and roles, sexual orientation, eroticism, pleasure, intimacy and
reproduction’ and ‘is experienced and expressed in thoughts, fantasies, desires, beliefs, attitudes,
values, behaviours, practices, roles and relationships’. The WHO further observes that ‘[s]exuality
is influenced by the interaction of biological, psychological, social, economic, political, cultural,
ethical, legal, historical, religious and spiritual factors’.112

Further according to the WHO, Sexual rights ‘include the right of all persons, free from coercion,
discrimination and violence to the highest attainable standard of health in relation to sexuality’.
These rights include the right of access to sexual health, including reproductive health care
services, sexuality education and information, respect for bodily integrity, choice of partner and
the decision to be sexually active or not. The rights also encompass consensual relations and the
pursuit of a satisfying, safe and pleasurable sexual life.

108
The notes below have been incorporated majorly from the two books of Prof Ben Twinomugisha; Fundamentals
of Health Law in Uganda, and Maternal Health, Politics and the Law.
109
United Nations (1994) ‘Report of the international conference on population and development’ Cairo, 5-13 September 1994.
A/CONF.171/13.
110
ibid
111
WHO Defining Sexual Health (2006) 5.
112
ibid

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It is important to point out that the right to bodily integrity is at the centre of sexual and
reproductive health and freedom and is ‘an affirmative right to enjoy the full potential of one’s
body, whether for health, procreation or sexuality’.113

From the above brief conceptualisation of SRHR, these rights can be summarised as follows:
• the right to decide and exercise control over one’s body, including the right to choose who one
has sex with, when and where, and whether one wants to have sex at all;
• the right of access to modern family planning methods, including emergency
contraception;
• the right to maternal, new-born and child health services, including emergency obstetric
care;
• the right to safe, legal and accessible abortion services;
• the right to freedom from sexual and gender based violence in all its forms and the right
of access to appropriate medical, counselling and legal services; and
• the right of access to comprehensive sexual education and information.114

RIGHT TO SEXUAL AND REPRODUCTIVE HEALTH IN INTERNATIONAL HUMAN

RIGHTS LAW

The right to health is a fundamental part of our human rights and of our understanding of a life in
dignity. The right to the enjoyment of the highest attainable standard of physical and mental
health, to give it its full name, is not new. Internationally, it was first articulated in the 1946
Constitution of the World Health Organization (WHO), whose preamble defines health as “a state
of complete physical, mental and social well-being and not merely the absence of disease or
infirmity”. The preamble further states that “the enjoyment of the highest attainable standard of
health is one of the fundamental rights of every human being without distinction of race, religion,
political belief, economic or social condition.”

The 1948 Universal Declaration of Human Rights also mentioned health as part of the right to an
adequate standard of living Article 25(1) of the Universal Declaration of Human Rights (UDHR)
stipulates that everyone has the right to an adequate standard of living including the right to health,
which includes food, housing, and medical care with necessary social services and the right to
security in the event of sickness, disability, old age etc A special provision is also made for the
protection of motherhood and childhood. The UDHR has gained recognition as an expression of
principles of customary international law which all nations are under duty to observe.

Article 25(2); 2. Motherhood and childhood are entitled to special care and assistance. All
children, whether born in or out of wedlock, shall enjoy the same social protection.

The right to the highest attainable standard of health is a human right recognized in international
human rights law. The International Covenant on Economic, Social and Cultural Rights, widely
considered as the central instrument of protection for the right to health, recognizes “the right of
everyone to the enjoyment of the highest attainable standard of physical and mental health.”

113
S Correa & R Petchesky ‘Reproductive and sexual rights: A feminist perspective’ in G Sen et al Population policies reconsidered (1994
114
Twinomugisha supra

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 International Covenant on Economic, Social and Cultural Rights, art. 12
1. The States Parties to the present Covenant recognize the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full
realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth rate and of infant mortality and for the
healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other
diseases;
(d) The creation of conditions which would assure to all medical service and medical
attention in the event of sickness.

However, the ICESCR only provides for the steps to be taken by states but does not explain how
they are to adhere to their obligations. In General Comment 14, the Committee on Economic,
Social and Cultural Rights (ESCR) elaborates on the meaning of the right to health as found in
Article 12 ICESCR115 The committee interprets the right to health, as defined in article 12.1, as an
inclusive right extending not only to timely and appropriate health care but also to the underlying
determinants of health, such as access to safe and potable water and adequate sanitation, an
adequate supply of safe food, nutrition and housing, healthy occupational and environmental
conditions, and access to health-related education and information, including on sexual and
reproductive health. A further important aspect is the participation of the population in all health-
related decision-making at the community, national and international levels116

Regarding the normative content of article 12, the Committee states straight away that the right to
health does not mean a right to be healthy since such a right embodies the enjoyment of a variety
of facilities, goods, services and conditions necessary for the realization of the highest attainable
standard of health. On the other hand, the notion of “the highest attainable standard of health”
takes into account both (a) the individual’s biological and socio-economic preconditions and (b)
the State’s available resources.

The right to health in all its forms and at all levels contains the following interrelated and essential
elements; that is availability, accessibility, acceptability and quality. 117

Also the Committee imposes obligations on the states in providing the highest attainable standard
of health. The state has three types of obligations: to respect, protect and fulfil the right to health.
States parties have immediate obligations in relation to the right to health, such as the guarantee

115
General Comment No. 14 Para 4([…] the reference in article 12, paragraph 1, of the Covenant to “the highest
attainable standard of physical and mental health” is not confined to the right to health care. To the contrary, the
drafting history and the express wording of article 12, paragraph 2, acknowledge that the right to health embraces a
wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to
the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and
adequate sanitation, safe and healthy working conditions, and a healthy environment”).
116
General Comment No. 14 para 11
117
Ibid para 12

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that the right will be exercised without discrimination of any kind and the obligation to take steps
towards the full realization of article 12.118 The Committee confirms that States parties have a core
obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the
rights enunciated in the Covenant, including essential primary health care.119

General comment No. 22 (2016) on the right to sexual and reproductive health

The right to sexual and reproductive health is an integral part of the right to health enshrined in
article 12 of the International Covenant on Economic, Social and Cultural Rights.

Due to numerous legal, procedural, practical and social barriers, access to the full range of sexual
and reproductive health facilities, services, goods and information is seriously restricted. In fact,
the full enjoyment of the right to sexual and reproductive health remains a distant goal for millions
of people, especially for women and girls, throughout the world. Certain individuals and
population groups that experience multiple and intersecting forms of discrimination that
exacerbate exclusion in both law and practice, such as lesbian, gay, bisexual, transgender and
intersex persons and persons with disabilities, the full enjoyment of the right to sexual and
reproductive health is further restricted.

The right to sexual and reproductive health entails a set of freedoms and entitlements. The
freedoms include the right to make free and responsible decisions and choices, free of violence,
coercion and discrimination, regarding matters concerning one’s body and sexual and reproductive
health. The entitlements include unhindered access to a whole range of health facilities, goods,
services and information, which ensure all people full enjoyment of the right to sexual and
reproductive health under article 12 of the Covenant.

Sexual health and reproductive health are distinct from, but closely linked, to each other. Sexual
health, as defined by the World Health Organization (WHO), is “a state of physical, emotional,
mental and social well-being in relation to sexuality”. Reproductive health, as described in the
Programme of Action of the International Conference on Population and Development, concerns
the capability to reproduce and the freedom to make informed, free and responsible decisions. It
also includes access to a range of reproductive health information, goods, facilities and services to

118
Ibid parag 30; Such steps must be deliberate, concrete and targeted towards the full realization of the right to health.
119
Ibid parag 43; Accordingly, in the Committee’s view, these core obligations include at least the following
obligations: (a) To ensure the right of access to health facilities, goods and services on a non-discriminatory basis,
especially for vulnerable or marginalized groups; (b) To ensure access to the minimum essential food which is
nutritionally adequate and safe, to ensure freedom from hunger to everyone;(c) To ensure access to basic shelter,
housing and sanitation, and an adequate supply of safe and potable water; (d) To provide essential drugs, as from time
to time defined under the WHO Action Programme on Essential Drugs; (e) To ensure equitable distribution of all
health facilities, goods and services; (f) To adopt and implement a national public health strategy and plan of action,
on the basis of epidemiological evidence, addressing the health concerns of the whole population

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enable individuals to make informed, free and responsible decisions about their reproductive
behaviour.120

The right to sexual and reproductive health extends beyond sexual and reproductive health care to
the underlying determinants of sexual and reproductive health, including access to safe and potable
water, adequate sanitation, adequate food and nutrition, adequate housing, safe and healthy
working conditions and environment, health-related education and information, and effective
protection from all forms of violence, torture and discrimination and other human rights violations
that have a negative impact on the right to sexual and reproductive health.121

To realize the right to sexual and reproductive health, States parties must address the social
determinants as manifested in laws, institutional arrangements and social practices that prevent
individuals from effectively enjoying in practice their sexual and reproductive health. 122
The right to sexual and reproductive health is interdependent with other human rights.

Para 9 notes that;

The realization of the right to sexual and reproductive health requires that States parties
also meet their obligations under other provisions of the Covenant. For example, the right
to sexual and reproductive health, combined with the right to education (articles 13 and 14)
and the right to non-discrimination and equality between men and women (articles 2 (2)
and 3), entails a right to education on sexuality and reproduction that is comprehensive,
non-discriminatory, evidence-based, scientifically accurate and age appropriate. The right
to sexual and reproductive health, combined with the right to work (article 6) and just and
favourable working conditions (article 7), as well as the right to non-discrimination and
equality between men and women, also requires States to ensure employment with
maternity protection and parental leave for workers, including workers in vulnerable
situations, such as migrant workers or women with disabilities, as well as protection from
sexual harassment in the workplace and prohibition of discrimination based on pregnancy,
childbirth, parenthood, sexual orientation, gender identity or intersex status.

Para 10;

The right to sexual and reproductive health is also indivisible from and interdependent with
other human rights. It is intimately linked to civil and political rights underpinning the
physical and mental integrity of individuals and their autonomy, such as the rights to life;
liberty and security of person; freedom from torture and other cruel, inhuman or degrading
treatment; privacy and respect for family life; and non-discrimination and equality. For
example, lack of emergency obstetric care services or denial of abortion often leads to
maternal mortality and morbidity, which in turn constitutes a violation of the right to life
or security, and in certain circumstances can amount to torture or cruel, inhuman or
degrading treatment.

120
Para 6
121
Para 7
122
Para 8

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The right to sexual and reproductive health is an integral part of the right of everyone to the highest
attainable physical and mental health. Following the elaboration in the Committee’s general
comment No. 14,comprehensive sexual and reproductive health care contains the four interrelated
and essential elements of availability, accessibility, acceptability and quality.

The right of women to sexual and reproductive health is indispensable to their autonomy and their
right to make meaningful decisions about their lives and health. Gender equality requires that the
health needs of women, different from those of men, be taken into account and appropriate services
provided for women in accordance with their life cycles.123

The Committee further notes in paras 22 and 23;

22. Article 2 (2) of the Covenant provides that all individuals and groups shall not be
discriminated against and shall enjoy equal rights. All individuals and groups should be
able to enjoy equal access to the same range, quality and standard of sexual and
reproductive health facilities, information, goods and services, and to exercise their rights
to sexual and reproductive health without experiencing any discrimination.

23. Non-discrimination, in the context of the right to sexual and reproductive health, also
encompasses the right of all persons, including lesbian, gay, bisexual, transgender and
intersex persons, to be fully respected for their sexual orientation, gender identity and
intersex status. Criminalization of sex between consenting adults of the same gender or the
expression of one’s gender identity is a clear violation of human rights. Likewise,
regulations requiring that lesbian, gay, bisexual transgender and intersex persons be treated
as mental or psychiatric patients, or requiring that they be “cured” by so-called “treatment”,
are a clear violation of their right to sexual and reproductive health. State parties also have
an obligation to combat homophobia and transphobia, which lead to discrimination,
including violation of the right to sexual and reproductive health.

Para 28;
The realization of the rights of women and gender equality, both in law and in practice,
requires repealing or reforming discriminatory laws, policies and practices in the area of
sexual and reproductive health. Removal of all barriers interfering with access by women
to comprehensive sexual and reproductive health services, goods, education and
information is required. To lower rates of maternal mortality and morbidity requires
emergency obstetric care and skilled birth attendance, including in rural and remote areas,
and prevention of unsafe abortions. Preventing unintended pregnancies and unsafe
abortions requires States to adopt legal and policy measures to guarantee all individuals
access to affordable, safe and effective contraceptives and comprehensive sexuality
education, including for adolescents; to liberalize restrictive abortion laws; to guarantee
women and girls access to safe abortion services and quality post-abortion care, including

123
Para 25

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 by training health-care providers; and to respect the right of women to make autonomous
decisions about their sexual and reproductive health.

Additionally, the right to health is recognized by the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW) which is more specific on how the right to health
relates to women. This is provided for under article 12 which focuses on the sexual and
reproductive health rights of women, which is further elaborated by General Comment No. 14.

Article 12: of CEDAW provides that

1. States Parties shall take all appropriate measures to eliminate discrimination against
women in the field of health care in order to ensure, on a basis of equality of men and
women, access to health care services, including those related to family planning.
2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure
to women appropriate services in connection with pregnancy, confinement and the
postnatal period, granting free services where necessary, as well as adequate nutrition
during pregnancy and lactation.

General Comment No. 14 of ICESCR paragraph 21; A major goal should be reducing
women’s health risks, particularly lowering rates of maternal mortality and protecting
women from domestic violence. The realization of women’s right to health requires the
removal of all barriers interfering with access to health services, education and information,
including in the area of sexual and reproductive health. It is also important to undertake
preventive, promotive and remedial action to shield women from the impact of harmful
traditional cultural practices and norms that deny them their full reproductive rights

However, Article 14 of CEDAW particularly deals with the situation of rural women where states
shall ensure that rural women have ‘access to adequate health care facilities, including information,
counselling and services in family planning.
The CEDAW Committee’s General Recommendation No.24 also makes explicit, and describes
different dimensions of, the right of women and girls to sexual and reproductive health, within the
context of States parties’ obligations under Article 12:-

CEDAW Committee’s General Recommendation No.24, paragraphs 18 and 23

18. The issues of HIV/AIDS and other sexually transmitted disease are central to the rights
of women and adolescent girls to sexual health. Adolescent girls and women in many
countries lack adequate access to information and services necessary to ensure sexual
health. As a consequence of unequal power relations based on gender, women and
adolescent girls are often unable to refuse sex or insist on safe and responsible sex practices.
Harmful traditional practices, such as female genital mutilation, polygamy, as well as

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 marital rape, may also expose girls and women to the risk of contracting HIV/AIDS and
other sexually transmitted diseases. Women in prostitution are also particularly vulnerable
to these diseases. States parties should ensure, without prejudice and discrimination, the
right to sexual health information, education and services for all women and girls, including
those who have been trafficked, including those who have been trafficked, even if they are
not legally resident in the country. In particular, States parties should ensure the rights of
female and male adolescents to sexual and reproductive health education by properly
trained personnel in specially designed programmes that respect their rights to privacy and
confidentiality.

23. In their reports, States parties should state what measures they have taken to ensure
timely access to the range of services which are related to family planning, in particular,
and to sexual and reproductive health in general. Particular attention should be paid to the
health education of adolescents, including information and counselling on all methods of
family planning.

The Convention on the Rights of the Child (CRC) guarantees every child the right to the enjoyment
of the highest attainable standard of health and to facilities for the treatment of illness and
rehabilitation of health. The provision requires states to diminish infant and child mortality, and to
ensure that no child is deprived of access to health care services.
Article 24 CRC; Article 24 CRC
1. States Parties recognize the right of the child to the enjoyment of the highest attainable
standard of health and to facilities for the treatment of illness and rehabilitation of health.
States Parties shall strive to ensure that no child is deprived of his or her right of access to
such health care services.
2. States Parties shall pursue full implementation of this right and, in particular, shall take
appropriate measures:
(a) To diminish infant and child mortality; (b) To ensure the provision of necessary
medical assistance and health care to all children with emphasis on the development of
primary health care; (d) To ensure appropriate pre-natal and post-natal health care
for mothers; ; (f) To develop preventive health care, guidance for parents and family
planning education and services.

The Convention on the Rights of Persons with Disabilities further provides that persons with
disabilities have the right to the enjoyment of the highest attainable standard of health without
discrimination on the basis of disability.

Article 25 provides;
States Parties shall take all appropriate measures to ensure access for persons with
disabilities to health services that are gender-sensitive, including health-related
rehabilitation. In particular, States Parties shall: (a) Provide persons with disabilities with
the same range, quality and standard of free or affordable health care and programmes as

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 provided to other persons, including in the area of sexual and reproductive health and
population-based public health programmes;

At the regional level, the ACHPR guarantees the right to the best attainable state of physical and
mental health and obliges states parties to ‘take measures to protect the health of their people and
to ensure that they receive medical attention when they are sick’.124

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa (Maputo Protocol): Article 14. The Women’s Protocol to the ACHPR, which is the first
treaty to specifically address human rights of women in Africa, enjoins states parties to ensure the
respect and promotion of women’s health rights including the right to control their fertility; the
right to decide whether to have children, the number of children and spacing of children; the right
to choose any method of contraception; and the right to family planning education. 125

The Protocol emphasizes that state parties must take appropriate measures to ensure access to
adequate, affordable and accessible health services including information, education and
communications programmes to women especially those in rural areas.126

Article 14 also creates an obligation on the State to establish and strengthen existing prenatal,
delivery and post-natal health and nutritional services for women during pregnancy.

The Protocol is also the first treaty to recognize legal and safe abortion under certain circumstances
as a woman’s human right, which she should enjoy without fear of prosecution. States parties are
obliged to ‘take all appropriate measures to ‘protect the reproductive rights of women by
authorizing medical abortion in cases of sexual assault, rape, incest, and where the continued
pregnancy endangers the mental and physical health of the mother or the life of the mother or
fetus’.127Commenting on these provisions, pursuant to its mandate under the ACHPR to ‘formulate
and lay down principles and rules aimed at solving legal problems relating to human rights’,128 the
African Commission on Human and Peoples’ Rights (hereafter: ‘African Commission’) has stated
that women should be informed of safe abortion related products, procedures and health
services.129The African Commission has also stated that women’s right to be free from
discrimination, which is guaranteed under the Protocol, also means that,
[women] must not be subjected to criminal proceedings and should not incur any legal
sanctions for having benefited from health services that are reserved to them such as
abortion and post abortion care. Furthermore, it entails that the health personnel

124
Article 16 of the Charter
125
Article 14(1)(a)-c) and (g). Maputo Protocl
126
Article 14(2)(a)
127
Article 14
128
Article 45(1).
129
General Comment 2, para. 31.

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 should fear neither prosecution nor disciplinary reprisal or others for providing these
services, in the cases provided in the Protocol.130

States parties should ensure that women who seek reproductive health services such as family
planning or safe abortion and post abortion care ‘are not treated in an inhuman, cruel or degrading
manner’.131

African Commission General Comments on Article 14 (1) (d) and (e) of the Protocol to the
African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
The African Commission recognises that women in Africa have the right to the highest attainable
standard of health which includes sexual and reproductive health and rights. Amidst high
prevalence and significant risk of HIV exposure and transmission, women are unable to fully enjoy
these rights. Notably, the limitation of women’s rights in the context of sexual and reproductive
health increases the likelihood to HIV exposure and transmission. This is further compounded for
women living with HIV whose access to these rights is severely limited or denied as a result of
HIV-related discrimination, stigma, prejudices and harmful customary practices.

On access to information and educational programmes

Para 26
The African Commission wishes to emphasise the importance of information and education
on HIV prevention for women, in particular adolescents and youths. States Parties must
guarantee information and education on sex, sexuality, HIV, sexual and reproductive
rights. The content must be evidence-based, facts-based, rights-based, non-judgemental
and understandable in content and language. This information and education should
address all taboos and misconceptions relating to sexual and reproductive health issues,
deconstruct men and women’s roles in society, and challenge conventional notions of
masculinity and femininity which perpetuate stereotypes harmful to women’s health and
well-being. This should be pursued in line with the Maputo Plan of Action as well as
articles 2 and 5 of the Protocol.

130
General Comment 2, para. 32.
131
General Comment 2, para. 36.

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 Para 27

States Parties should provide educational programmes and access to information

concerning HIV, including through sex education and public awareness campaigns,
on available health services responsive to all women’s realities in all contexts
including those mentioned under paragraph 14 above. In addition, States Parties
should ensure that educational institutions (primary and secondary schools),
include HIV and human rights issues in their curricula. These should include HIV
risk and transmission, prevention, testing, treatment, care and support and sexual
and reproductive health and rights of women. States Parties must also ensure this
education reaches women and girls in informal school systems including faith-
based schools, as well as those out of school.

On Access to sexual and reproductive health services

Para 29. Ensuring availability, accessibility, acceptability and quality sexual and reproductive
health care services for women is crucial. Therefore, States Parties have the obligation to ensure
comprehensive, integrated, rights-based, women-centred and youth friendly services that are free
of coercion, discrimination and violence.

Para 30. The African Commission is concerned about the limitations on and insufficient
access to women’s sexual and reproductive health services including access to prevention choices
and methods, STI and HIV prevention skills, and access to treatment. States Parties must guarantee
available, accessible, affordable, comprehensive and quality women-centred HIV prevention
methods, which include female condoms, microbicides, prevention of mother-to-child
transmission, and post-exposure prophylaxis to all women not based on a discriminatory
assessment of risk.

Para 31. States Parties should also ensure that health workers are not allowed, on the basis of
religion or conscience, to deny access to sexual and reproductive health services to women as
highlighted in this document.

Para 32. States Parties should integrate women-centred prevention methods with other
services, including family planning, reproductive health, primary health care services, HIV and
STI testing, antiretroviral treatment programmes and antenatal care. More equitable availability
and access to prevention methods such as female condoms should be promoted and ensured by
having adequate and sustainable planning, funding and distribution, together with the provision of
new prevention technologies or methods. To this end, States Parties should ensure on-going
funding for research.

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The 2006 African Union Commission ‘Continental Policy Framework on Sexual and
Reproductive Health Rights.

Considering the inadequacy of existing sexual and reproductive health and legislative
frameworks member states should strengthen the existing laws, to adopt new sexual and
reproductive laws taking into account African specificities and a better application of laws.

In view of the acuteness of sexual and reproductive health issues, including very high
maternal and infant mortality and unsafe abortion rates, African countries need to integrate
sexual and reproductive health services in the minimum activity package at all levels of the
health pyramid, with particular emphasis on family planning and emergency obstetric and
infant care.

The African Charter on the Rights and Welfare of the Child guarantees every child the right to
enjoy the best attainable state of physical, mental and spiritual health and obliges states parties to
take measures to reduce infant and child mortality rates in addition to provision of appropriate
health care for pregnant women and nursing mothers.132

First introduced as a human right at the 1994 International Conference on Population and
Development (ICPD) in Cairo, reproductive health was defined as a “state of complete physical,
mental and social well-being and not merely the absence of disease or infirmity, in all matters
relating to the reproductive system and to its functions and processes.

The Beijing Declaration & Platform for Action of 1995 pushed the debate further, pointing out
that: “Reproductive health eludes many of the world’s people because of factors such as:
inadequate levels of knowledge about human sexuality and inappropriate or poor-quality
reproductive health information and services; the prevalence of high-risk sexual behaviour;
discriminatory social practices; negative attitudes towards women and girls; and the limited power
many women and girls have over their sexual and reproductive lives.

Sustainable Development Goal (SDG) No.5 specifically addresses governments’ commitments

to do the following: end discrimination and gender-based violence; eliminate child marriage and
female genital mutilation; ensure access to sexual and reproductive health care; protect women
and girls’ reproductive rights; eliminate gender disparities in education; expand women’s

Domestic level.
The Constitution of the Republic of Uganda.;

At the domestic level, both the right to health and SRHRs are not explicitly provided for in the Bill
of Rights of the Constitution of the Republic of Uganda. However, it contains a number of

132
Article 14

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provisions in National Objective and Directive Principle of State Policy (NODPSP) XIV of the
Constitution, with a bearing on health. Under Objective XIV, the Constitution enjoins the state to
promote the social well-being of the people and in particular to ensure that all Ugandans enjoy
rights and opportunities and access, amongst other things, to education, health services, clean and
safe water, food security and adequate housing.133 The state is also obliged to take all practical
measures ‘to ensure the provision of medical services to the population’134 and ‘to encourage and
promote proper nutrition’.135

The Constitution contains a number of human rights and freedoms, which are critical for the
protection of the SRHRs, given the interdependence, indivisibility and interrelationship of human
rights. These include equality and freedom from discrimination (art 21) the right to life, (art 22)
respect for human dignity and ‘prevention from torture or cruel, inhuman or degrading treatment
or punishment’ (art 24.) on privacy (art 27). Others include the right to education, (art 30) rights
of women, (art 31) and (Art 33), children rights, (art 34) rights of minorities, (art 36) participation
in the affairs of government, (art 38) the right to a clean and healthy environment, (art 39)
economic rights, (art 40) and the right of access to information (art 41).

The Constitution also recognizes other human rights such as MHRs, which are protected in the
international and regional human rights instruments outlined above, but are not explicitly
mentioned in the Bill of Rights.(Art 45. )

The constitution seals this form of interpretation where Article 8A provides for the governance of
Uganda based on the principles enshrined in the national objectives-the latter being inclusive of
the principles that all Ugandans should enjoy access to health services,136 and that foreign policy
shall be based on the respect of International law and treaty obligations.137 In light of the
aforementioned provisions and interpretations, where Article 20 of the Constitution provides for
the respect, upholding, and promotion of the rights enshrined in the constitution, such obligation
encompasses the right to health. Article 8A is important because it gives the objectives and
principles full legal effect. This means that the objectives and principles can be used in litigation
requiring the interpretation of the Constitution. Any reading of the Constitution should integrate
the objectives and principles, which should also guide interpretation.

In this respect, the 2015 Supreme Court decision in the case of CEHURD & 3 Others. v. The
Attorney General, provides a particularly useful point of commencement. The original case
sought to test the constitutionality of certain actions and omissions on the part of the government
and its staff in providing maternal health services in government hospitals/health facilities. The

133
National Objective and Directive Principle of State Policy (NODPSP), Objective XIV.
134
Ibid, Objective XX.
135
Ibid, Objective XX1.
136
National Objective XIV(b) of the Constitution.
137
National Objective XVIII(b)

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Court of Appeal declined to hear the merits of the application on the grounds that it raised a
“Political Question” that could not be the subject of judicial review, hence the appeal to the
Supreme Court. On appeal, Justice Esther Kisaakye ruled that the Political Question Doctrine
(PQD) had limited application following enactment of the 1995 Constitution which declared all
individuals and institutions bound by its provisions, and vested the Constitutional Court with the
power of interpretation in the event of an alleged contravention of the instrument.

In a concurring judgment, Chief Justice Bart Katureebe held that even though badly
conceptualized and drafted, the petition raised important issues of constitutional interpretation
regarding the right to health and medical services (Objectives XIV and XX), life (Article 22), and,
more broadly, fundamental rights and other human rights and freedoms (Chapter 4). In his view,
the Constitutional Court would need to consider where the right to health falls within the
Constitution and whether the government had taken “all practical measures to ensure basic medical
services” as required under Objective XX:-

The primary duty of courts is to the Constitution and the law … Where state policy is
challenged as inconsistent with the Constitution, courts have to consider whether in
formulating and implementing such a policy the state has given effect to its constitutional
obligations. If it should hold in any given case that the state has failed to do so, it is obliged
by the Constitution to say so. In so far as this constitutes an intrusion into the domain of
the executive, it is an intrusion mandated by the Constitution itself.

Ministry of Health National Health Policy provides for the minimum health care package
consists of the following:

Sexual and Reproductive Health and Rights

a) Essential Ante-natal and Obstetric Care: To ensure safe pregnancy and delivery, improved
management of complications of pregnancy and childbirth including spontaneous or induced
abortion, and reduce the unacceptably high rates of maternal and perinatal deaths through timely
and effective emergency obstetric care provided at strategic and accessible locations.
b) Family Planning; To provide information and services for appropriate modern family planning
methods and reduce the wide gap between desired and actual use of family planning services.

The National Policy Guidelines and Service Standards for Sexual and Reproductive Health
and Rights
The National Policy Guidelines and Service Standards for Sexual and Reproductive Health and
Rights, 2006 is a policy intended to address the need for explicit direction and focus, as well as to
streamline the training and provision of reproductive health services. It provides a framework for
guiding reform and development of a results oriented national reproductive health program. The
Policy also seeks to make reproductive health programmes and services accessible and affordable
to the majority of the target groups.

The policy guidelines aim to promote reproductive health rights which it defines to include: the
right of all couples and individuals to decide freely and responsibly the number, spacing and timing
of their children; the right to information and means to make the decisions as stated above; the

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right to attain the highest standard of sexual and reproductive health; and the right to make
decisions concerning reproduction, free of discrimination, coercion and violence.

The priorities for reproductive health include: safe motherhood including breast feeding and
nutrition, pre-natal care, safe delivery and post-natal care; information, education and counselling
on reproductive health and sexuality; abortion and post-abortion care; family planning; and
adolescent reproductive health.

The Reproductive Health Policy

Like the Adolescent Policy, the Reproductive Health Policy details the need for proper adolescent
health and lists a variety of services to be provided to adolescents, including family planning,
emergency contraception, maternal health care, post-natal care, voluntary counselling and testing,
post abortion care, and STI/HIV/AIDS care. This is in addition for support for the prevention and
protection of harmful traditional practices such as female genital mutilation.

Information will also be provided to adolescents concerning sex, sexuality and life skills, drug and
substance abuse, supportive organizations, the rights of adolescents, and proper nutrition and
hygiene. Services will be delivered by various groups, including schools, religious and community
centers, youth and adolescent clubs, youth council meeting places, health units, and through
community outreach.
State Obligations
Like with other human rights, the state has three types of obligations: to respect, protect and fulfill
the right to health generally and MHRs in particular. The obligation to respect requires the state to
refrain from interfering directly or indirectly with the enjoyment of MHRs. The obligation to
protect requires the state to take measures that prevent third parties from interfering with the
enjoyment of MHRs. The obligation to fulfill requires the state to adopt appropriate legislative,
administrative, budgetary, judicial, promotional and other measures towards the realization of
MHRs. The obligation to fulfill also requires the state to take positive measures to assist
individuals or groups who are unable by the means at their disposal to realize MHRs.138 The state
should ensure the availability, accessibility, acceptability and quality of maternal health care
services.139

The state’s obligations are to be realized progressively in accordance with the available resources.
However, there are obligations, which are of immediate effect: the guarantee that MHRs will be
enjoyed without discrimination of any kind;140 and the obligation to take steps towards realization
of the right. The steps must be deliberate, concrete and targeted towards realization of MHRs.
Thus, the concept of progressive realization should not be interpreted as depriving the state’s

138
see Committee on Economic, Social and Cultural Rights, General Comment No. 14: ‘The Right to the Highest Standard of Physical and
Mental Health’ HRI/GEN/1/Rev 9 (Vol I) (2000) paras 34-36; General Comment No. 22, ‘The Right to Sexual and Reproductive Health (article 12
of the International Covenant on Economic, Social and Cultural Rights) (2016), paras 40-48
139
Para 12 General Comment 14; Paras 11-21 General Comment 22.
140
Paras 22-24 General Comment 22.

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obligations of any meaningful content. States have a continuing obligation to move as
expeditiously as possible towards the full realization of MHRs. Retrogressive measures are not
permitted unless the state justifies that it took the decision after seriously considering all
alternatives.141

In regard to sexual and reproductive health rights, the aforementioned articles are critical to the
realization of SRHRs. Of critical importance is article 33(3) of the 1995 Constitution which
recognizes the need to protect the maternal functions of women including reproduction. It states
that: “The State shall protect women and their rights, taking into account their unique status and
natural maternal functions in society.” This provision recognizes that women have rights that arise
from their maternal functions thereby implicitly places obligations upon the state to protect the
sexual and reproductive health rights of women. Furthermore, article 33 (6) prohibits laws,
cultures, customs or traditions which are against the dignity, welfare or interest of women or which
undermine their status. Therefore any laws, cultures, customs which undermine the health of
women including their sexual and reproductive health rights are null and void.

Art 33 women’s human rights. In the area of SRH it talks about equality which is very critical. It
provides for the obligation of the state to protect women and their rights. This means the rights
under the constitution and other rights in international instruments ratified by Uganda.eg CEDAW,
Cairo declaration, CRC, Maputo etc.

However, Art 33 is important is questioning the role of men in sexual and reproductive health.
Most programmes on health generally and in particular sexual and reproductive health do not
effectively involve men in the sexual reproductive health of women. One stumbling block is
patriarchy and negative masculinities. How do we move from toxic masculinity to positive
masculinity. How can we get men involved in the health of their women, openness between parents
and adolescents, where and how do girls learn about their menstrual health?
Art 34 on the rights of children is important in view of girls. It talks about children’s rights; in the
first place it recognizes the rights of children generally. A child is below 18; it makes a fundamental
departure from the position that a child can be denied medical care on grounds of religious, cultural
and other beliefs; the constitution prohibits that. Therefore it agrees with the position in Re R (a
minor);
In Re R (A Minor) (Blood Transfusion), 1993) 2 FLR 757; a ten month girl was suffering from B-
cell lymphoblastic leukaemia and needed a blood transfusion. The parents who were devout
Jehovah’s witnesses refused to consent to the treatment. Guided by the welfare and best interests
of the child, the court overrode the parents’ wishes and directed that the child should receive blood
transfusion as medical advice dictated. On this question, the Ugandan Constitution is clear: it
provides that, ‘[n]o child shall be deprived of medical treatment, education or any other social or
economic benefit by reason of religious or other beliefs’. Art 34(3).

141
See paras 30-32 General Comment 14.

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Should a parent deny her girl access to contraceptives on ground of religion;; look at Gillick test.
Art 34 rights derive from the CRC art 24, the African charter on the rights and welfare of the child;
these two conventions and the rights there in have been elaborated in the Children Amendment
Act. Under S.4
In Gillick v West Norfolk and Wisbech Area Health Authority & Another, (1985) 3 All ER 402.
The Department of Health and Social Security issued a circular to area health authorities
containing, inter alia, advice to the effect that a doctor consulted at a family planning clinic by a
girl under 16 would not be acting unlawfully if he prescribed contraceptives for the girl, so long
as in doing so he was acting in good faith to protect her against the harmful effects of sexual
intercourse. Mrs Gillick objected to the provision of contraceptives to her daughters without her
prior knowledge and consent so long as they were below16 years. The court recognised the right
of a ‘mature minor’ to consent to her own medical treatment.

Held;
Having regard to the reality that a child became increasingly independent as it grew older
and that parental authority dwindled correspondingly, the law did not recognise any rule of
absolute parental authority until a fixed age. Instead, parental rights were recognised by the
law only as long as they were needed for the protection of the child and such rights yielded
to the child’s right to make his own decisions when he reached a sufficient understanding
and intelligence to be capable of making up his own mind. Accordingly, a girl under 16
did not, merely by reason of her age, lack legal capacity to consent to contraceptive advice
and treatment by a doctor

It followed that a doctor had a discretion to give contraceptive advice or treatment to a girl
under 16 without her parents’ knowledge or consent provided the girl had reached an age
where she had a sufficient understanding and intelligence to enable her to understand fully
what was proposed, that being a question of fact in each case.
Lord Fraser stated:
It seems to me verging on the absurd to suggest that a girl or boy aged fifteen could not
effectively consent, for example to have a medical examination of some trivial injury to
his [or her] body or even to have a broken arm set. Of course the consent of the parents
should normally be asked, but they may not be immediately available. Provided the patient,
whether a boy or girl, is capable of understanding what is proposed, and of expressing his
or her own wishes, I see no good reason for holding that he or she lacks the capacity to
express them validly and effectively and to authorize the medical man to make the
examination or give the treatment which he wishes.

Art 32 provides for affirmative action which is important considering the inequality between men
and women in Uganda. In order to realise this, the Constitution provides for the establishment of
the Equal Opportunities Commission. This was established under the Equal Opportunities Act of
2007 which contained a draconian provision S. 15

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Section 15(6) (d) (i) & (ii) of the Act stipulates that the Commission shall not investigate any
matter involving behaviour which is considered to be; Immoral and socially harmful, or un
acceptable by the majority of the cultural and social communities in Uganda. The possible
challenge in this section is that issues such as wife beating, domestic violence, female genital
mutilation, spousal sexual consent or ’marriage rape’ and sexual violence would pass this test as
acceptable by the majority of the social and cultural institutions given the chauvinistic nature of
Uganda’s society.

In addition, the EOC Act, has become a centre of challenge including a constitutional petition3
under S. 15 and 16 as observed in the case of; Adrian Jjuko V Attorney General Constitutional
Petition no 1 of 2009. This case challenged Section 15(6)(d) of the EOC, which blocks the Equal
Opportunities Commission from investigating matters involving behaviour that is regarded as
‘immoral or socially unacceptable’ by the majority of cultural groupings in Uganda stating that;

This simply defeats the whole purpose of the commission which is to ‘eliminate
discrimination and inequalities against any individual ...and take affirmative action in
favour of groups marginalized on the basis of sex, gender, age, disability or any other
reason created by history, tradition or custom for the purpose of redressing imbalances
which exist against them’.
After seven years of waiting, the Constitutional Court declared the impuned section
unconstitutional.

Uganda; state of SRHRs

Uganda is a party to international and regional human rights instruments that recognize maternal
health rights (MHRs). It also has a Constitution and policy frameworks, which contain provisions
with a bearing on MHRs. In spite of the above progressive legal and policy frameworks which
underline protection of the right to health generally and MHRs in particular, realization of these
rights remains elusive as evidenced by the worrying maternal health related statistics. For
example, although Uganda has an estimated population of 35.8 million people, the fertility rate
hovers between 6 and 7 per cent among women aged 15-49 years142The contraceptive prevalence
rate (CPR) is at 30 per cent while the unmet need for family planning is at 34 per cent. Only 58
per cent of births are attended to by skilled health personnel. 32 per cent of women are also anemic
(UBOS, 2016), which points to challenges of iron deficiency – a key indicator of maternal
malnutrition. 42 per cent of women deliver from home.143 Albeit access to quality emergency
obstetric care (EmOC) is fundamental to reducing maternal deaths and injuries, the proportion of
facilities providing appropriate EmOC is still low at only 26 per cent.144The national met need for
emergency obstetric care (EmOC) is at only 40 per cent, yet this type of care is very critical for 15
percent of women who develop complications during pregnancy. In fact, only 11.7 per cent of
women deliver in fully functional comprehensive EmOC facilities. There are also 300, 000

142
(UBOS, 2012; UBOS, 2016).
143
UBOS, 2016).
144
(Ministry of Health, 2016a).
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abortions in Uganda every year and unsafe abortions contribute up to 26 per cent of maternal
deaths.145

Like in most countries of Sub-Saharan Africa, the maternal mortality Ratio (MMR) in Uganda is
still high at an estimated 336 deaths per 100,000 births, roughly translating into an estimated 16
women dying per day giving birth.146 Maternal deaths represented 18 percent of all deaths among
women aged 15 - 49 between the years 2009 and 2016 (UBOS, 2017:57). This is a large number
of preventable maternal deaths and raises serious questions regarding governmental obligations to
protect and enforce the right to health. It also raises questions as to whether courts of law could
have a role to play in addressing what is a serious crisis in the provision of health services.
Although data indicates a decline in MMR from 438 in 2009 (UBOS, 2012), this is still
unacceptable since no woman should die due to avoidable maternal causes. Maternal morbidity
rates are also high. In addition to every woman who dies, an estimated six women survive with
chronic and debilitating ill health and injuries such as fistulae –the leaking of urine or feaces from
the vagina. Given this situation, it is very doubtful whether Uganda will meet Sustainable
Development Goal (SDG) 3, which sets a target of reducing maternal mortality rate to less than 70
per 100,000 live births by 2030.

CHALLENGES TO REALISATION OF THE RIGHT TO HEALTH

Factors affecting reproductive health

According to UNFPA

Reproductive health affects, and is affected by, the broader context of people's lives, including
their economic circumstances education, employment, living conditions and family environment,
social and gender relationships, and the traditional and legal structures within which they live.
Sexual and reproductive behaviours are governed by complex biological, cultural and psychosocial
factors. Therefore, the attainment of reproductive health is not limited to interventions by the
health sector alone. Nonetheless, most reproductive health problems cannot be significantly
addressed in the absence of health services and medical knowledge and skills.

The status of girls and women in society, and how they are treated or mistreated, is a crucial
determinant of their reproductive health. Educational opportunities for girls and women
powerfully affect their status and the control they have over their own lives and their health and
fertility. The empowerment of women is therefore an essential element for health.

145
(Ministry of Health, 2015a)
146
(UBOS, 2016).
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Who is most affected by reproductive health problems

According to UNFPA;
Women bear by far the greatest burden of reproductive health problems. Women are at risk of
complications from pregnancy and childbirth; they also face risks in preventing unwanted
pregnancy, suffer the complications of unsafe abortion, bear most of the burden of contraception,
and are more exposed to contracting, and suffering the complications of reproductive tract
infections, particularly sexually transmitted diseases (STDs). Among women of reproductive age,
36% of all healthy years of life lost is due to reproductive health problems such as unregulated
fertility, maternal mortality and morbidity and sexually transmitted diseases including HIV/AIDS.
By contrast, the equivalent figure for men is 12%. Young people of both sexes, are also particularly
vulnerable to reproductive health problems because of a lack of information and access to services

1. Criminalisation of Sexual and Reproductive Health Rights.

a. Sex work/prostitution.

It should be noted from the outset that sexual activity is a critical aspect of SRHR. In Uganda, sex
work or prostitution is criminalised.

Uganda follows the prohibition model: all activities relating to prostitution or sex work are
considered socially and legally unacceptable. Thus, the Penal Code Act61 makes almost every
activity related to prostitution illegal, prohibits prostitution in every public or private place and
provides that ‘[a]ny person who practices or engages in prostitution commits an offence and is
liable to imprisonment for seven years’.

The above provisions raise disturbing questions. Is there any compelling justification for
criminalising sexual activity between consenting adults because they have chosen to turn it into a
commercial transaction? Who is hurt in the process? In other words, who is the ‘victim’ that the
law seeks to protect in such a case? By definition, commercial sex is the voluntary sale of a labour
or sexual service. As long as the sexual transaction is voluntary between consenting adults, is there
any justification for state interference? Doesn’t such interference constitute a violation of key
SRHR such as privacy and the right to control one’s body?
If adults want to engage in, buy or sell sex that is their choice, which should be respected provided
no one gets hurt or harmed or coerced. The state has no legitimate reason to criminalise that choice.
What is not permissible whatsoever is sexual activity involving minors or incest or where it is not
consensual. It should be noted that laws criminalising sex work are simply outdated and
patriarchal. They are underpinned by outdated and repressive notions of sexuality and the general
position of women in society.

Criminalisation of sex work simply drives sex workers underground where they are exposed to all
sorts of harassment and exploitation. Criminalisation reinforces the stigma associated with sex
work and pushes sex workers to the margins of society, where they are exposed to greater risk of
harm. When sex workers are driven underground, they may not be meaningfully engaged by health

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workers for purposes of HIV related services such as voluntary counselling and testing, care,
treatment and support. Criminalisation worsens the working conditions of the majority of sex
workers and increases their risk of violence and contracting HIV. Criminalisation increases
stigmatisation, which is antithetical to improving sex workers’ health generally and the enjoyment
of their SRHR in particular and ‘is particularly detrimental to the successful model of HIV/STI
prevention and care programmes based on principles of social solidarity and human rights’. Those
who are infected may end up spreading HIV and other STIs amongst the population in which they
live. Criminalisation of sex work has serious ramifications for sex workers’human rights generally
and SRHR in particular. Because of the criminalisation and stigma associated with sex work, some
health workers may find it difficult to associate with sex workers and yet as UNAIDS has observed,

sex workers have a great potential to contribute to national HIV responses. In fact, states
are enjoined to review and reform criminal laws and correction systems to ensure that they
are consistent with international human rights obligations and are not misused in the
context of HIV or targeted against vulnerable groups.
The UN General Assembly in 2011 also recommended that states should review all laws that affect
the ‘effective and equitable delivery of HIV services’.

In Bedford v AG, Canada the court struck down three provisions of the Canadian Criminal Code
outlawing prostitution on grounds that they violate the country’s Charter of Rights since they
‘force prostitutes to choose between the liberty interest and their right to security of the person’.
In Kylie v Commission for Reconciliation, Mediation & Arbitration & 2 Others, the court observed
that although prostitution is illegal, persons who practice it were entitled to be treated with dignity
and be protected against unfair discrimination by employers. Although in S v Jordan, the South
African Constitutional Court unanimously held that the anti-prostitution provision does not violate
human rights as such and is justifiable; justices O’Regan and Sachs held that the provision
constituted unfair discrimination. That by making the prostitute the primary offender and treating
the customer as an accomplice, the law reinforced double standards and perpetuated gender
stereotypes in a manner impermissible in a society committed to advancing gender equality. The
decision in Jordan has been sharply criticised as denying sex workers their rights. For example,
Bonthuys147 has argued that the decision,

conflicts sharply with progressive discourses of sexuality. [It] resonates with certain
Christian and Western views which permit limited sexual expression for women and which
blame women for the spread of disease. As a consequence, the judgment fails to alleviate,
and possibly even contributes to, these women’s powerlessness within intimate
relationships and, thereby their inability to protect themselves, their children and their
partners from sexually transmitted diseases

b. Abortion

Another way in which SRHR are criminalised is through anti-abortion laws. The legal regime on
abortion in Uganda is restrictive. Abortion remains prohibited in Uganda, except under certain
circumstances. The Constitution provides that, ‘[n]o person has the right to terminate the life of an
147
E Bonthuys ‘Women’s sexuality in the South African Constitutional Court’ (2006) 14 Feminist Legal Studies 391.

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unborn child except as may be authorized by law’. The Penal Code Act criminalises attempting to
procure, or knowingly supplying things to procure an abortion or miscarriage. However, the
Ugandan penal regime does not absolutely prohibit termination of pregnancy. The law, which
follows the English case of Rex v Bourne, only prohibits ‘unlawful’ acts; it permits abortion in
order to preserve the life and health of the mother.

The Women’s Protocol also enjoins states to protect the reproductive rights of women by
authorizing medical abortion in cases of sexual assault, rape, incest, and where the continued
pregnancy endangers the mental and physical health of the mother or the life of the mother or the
foetus. The Committee on ESCR has also noted that the respect, protection and fulfilment of
human rights require, amongst others, ‘the amendment of laws that criminalize medical procedures
only needed by women, and punish women who undergo these procedures’. The CEDAW
Committee has also stated as follows:

Measures to eliminate discrimination against women are considered to be inappropriate if

a health care system lacks services to prevent, detect, and treat illnesses specific to women.
It is discriminatory for a state party to refuse to provide legally for the performance of
certain reproductive health services for women. For instance, if health service providers
refuse to perform such services based on conscientious objection, measures should be taken
to ensure that women are referred to alternative health providers.

It should be noted that women who become pregnant as a result of crimes such as rape, defilement
and incest are victims of sexual violence may be further traumatised by health professionals, the
police and religious leaders. As Mavundla and Ngwena have observed, a woman who becomes
pregnant due to an act of rape is the victim of a violent and morally reprehensive crime. Yet, the
issue of not providing safe abortion to victims of rape must be understood as a form of violence
against women for the reason that it puts their health and lives in serious danger.

In spite of the legal and policy frameworks that seem to permit women to abort, unsafe abortion is
common in Uganda. Whether you support abortion or not, one thing is clear: women are dying or
suffering injury due to unsafe abortion. Women’s MHRs are violated through unsafe abortion.

WHO defines unsafe abortion as ‘a procedure for terminating an unintended pregnancy performed
by persons lacking the necessary skills, or in an environment that does not conform to minimal
medical standards, or both’.148 Most of the unsafe abortions are carried out using unsafe means
like drinking bleach, detergent, inserting sticks and coat hangers into a vagina which often result
in severe complications like secondary infertility, chronic inflammation of the reproductive tract
and hemorrhage. Unsafe abortion is one of the main causes of maternal mortality and morbidity in
the world. WHO (2014) estimates that deaths due to unsafe abortion make up to 14 per cent of all
maternal deaths globally. Approximately 22 million unsafe abortions are conducted every year
worldwide, resulting in the death of approximately 47,000 women (ibid). Disabilities from unsafe
abortions affect an additional five million women every year.149

148
(WHO, 2014).
149
ibid

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In Uganda, there are more than 300,000 abortions every year (Ministry of Health, 2015). About
26 percent of maternal deaths in the country result from unsafe abortion.150 Apart from death, there
are complications and disability from unsafe abortion, which include sepsis, peritonitis,
haemorrhage, cervical trauma, uterine perforations, cervical injury, as well as chronic and
permanent conditions The annual abortion rate in the country is 54 abortions per 1000 women of
reproductive age, or one abortion for every 19 such women.

There is an undeniable fact: unsafe abortions are preventable. Access to contraceptives will prevent
unwanted pregnancies. But what happens when a woman is already pregnant out of sexual violence
for example, rape, defilement or incest? Should she carry an unwanted pregnancy against her will?
What about the likely impact on her physical and mental health, which as illustrated above, are
critical components of the right to health? Imagine the following scenarios:

Jane [not her real name], a 10 year old girl in primary school – class five – is defiled
by her father. She becomes pregnant. She confides in you as her mother. You know
a doctor who can safely terminate the pregnancy. What do you do? Do you let her
carry the pregnancy or have it terminated?

Hellen [not real name] is taking an evening walk. She is raped by five men. She
becomes pregnant. Should she carry the pregnancy to term?

Amina [not real name], an indigenous Ugandan woman married to an indigenous

Ugandan man, has an affair with a muzungu (white man). She becomes pregnant.
Would you advise her to carry the pregnancy at the risk of producing a coloured child
whose paternity she is not going to gamble about?

The above and many other examples are what some women go through daily. Unfortunately, most
of them may not access safe abortion services either because of the cost involved or due to fear of
being prosecuted or the stigma associated with abortion. According to the WHO (2012: 19),

About 20-30% of unsafe abortion cause reproductive tract infections and 20-40% of
these result in infection of the upper genital tract. One in four women who undergo
unsafe abortion is likely to develop temporary or lifelong disability requiring medical
care. For every woman seeking post-abortion care at a hospital, there are several who
have had an unsafe abortion but who do not seek medical care, because they consider
the complication as not serious, or because they may not have the required financial
means, or because they fear abuse, ill-treatment or legal appraisal.

What is comforting is that it is now recognized that an induced abortion in sanitary conditions
performed by qualified and skilled persons using correct techniques is ‘a very safe surgical
procedure’ (WHO, 2012). Albeit access to safe legal abortion is a critical element of the continuum
of maternal health care, the law in Uganda restricts termination of pregnancy. The Constitution
provides that, ‘[n]o person has the right to terminate the life of an unborn child except as may be

150
(Ministry of Health, 2015;
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authorized by law,’151 and the Penal Code Act criminalizes attempting to procure an abortion,152
procuring a miscarriage,153 or knowingly supplying things to procure an abortion or miscarriage.154
Although section 224 of the Penal Code provides that surgical operations will not be deemed to
amount to an offence ‘endangering life or health’ if they are performed on an unborn child in order
to preserve the life of the mother, many health workers are either not aware of this provision or
they fear prosecution (HRAPF, 2016). In any case, the section is restricted to surgical procedures
and does not recognize effective medical forms of abortion such as mifepristone and misoprostol.

There is a direct correlation between restrictive abortion laws that criminalize women who seek
abortions outside of the law, and high rates of unsafe abortion (Grime, 2006). Evidence shows that
women who wish to terminate a pregnancy will do so regardless of its legal status and lawful
availability, at the risk of going to prison, injuring themselves, or even death (Okonofua, 2008;
Cohen, 2009; Amnesty International, 2014: 21). Almost all unsafe abortions – 97 percent – occur
in developing countries with the most restrictive anti-abortion laws (Berer, 2004; Haddad & Nour,
2009). The median rate of unsafe abortions in the 82 countries with the most restrictive abortion
laws is up to 23 out of 1000 women compared to only 2 out of 1000 in nations with liberal abortion
laws (Grime et al, 2009). Countries with liberalized abortion laws have the fewest fatalities
resulting from abortions (Cohen, 2009).

Many African states have, by ratifying the Women’s Protocol, recognized the need to safeguard
women’s reproductive rights, including access to safe legal abortion. The Protocol enjoins states
to,

protect the reproductive rights of women by authorizing medical abortion in cases of

sexual assault, rape, incest, and where the continued pregnancy endangers the mental
and physical health of the mother or the life of the mother or the foetus.155

Uganda ratified the Women’s Protocol with a reservation to the effect that this provision shall not
apply to the Republic of Uganda unless permitted by domestic legislation. In my view, the
reservation does not affect the application of the exception discussed above, namely, the need to
preserve the mother’s life, physical and mental health and the possibility of developing future
legislation removing the legislative barriers to abortion. Women who become pregnant as a result
of crimes such as rape, defilement and incest are victims of sexual violence and may be further
traumatised by health professionals, the police and religious leaders. As Mavundla and Ngwena
(2014: 62) have observed,
a woman who becomes pregnant due to an act of rape is the victim of a violent and
morally reprehensive crime. Yet, the issue of not providing safe abortion to victims
of rape must be understood as a form of violence against women for the reason that
it puts their health and lives in serious danger.

151
Constitution of the Republic of Uganda, 1995, Art 22(2).
152
Penal Code Act, Laws of Uganda, Cap 120, Sec 141.
153
Ibid, sec 142.
154
Ibid, sec 143.
155
Art 14(2)(c) of the Protocol. See also, African Commission, General Comment 2.

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The Committee on ESCR has also noted that the respect, protection and fulfilment of human rights
require, amongst others, ‘the amendment of laws that criminalize medical procedures only needed
by women, and punish women who undergo these procedures’.156

The CEDAW Committee has also stated as follows:

Measures to eliminate discrimination against women are considered to be inappropriate if

a health care system lacks services to prevent, detect, and treat illnesses specific to women.
It is discriminatory for a state party to refuse to provide legally for the performance of
certain reproductive health services for women. For instance, if health service providers
refuse to perform such services based on conscientious objection, measures should be taken
to ensure that women are referred to alternative health providers.157

Although the high levels of unintended pregnancies may be attributed to the low use of modern
contraceptives in the country, criminalisation of abortion also has a significant contribution to
make. Because of the restrictive legal provisions on abortion and the attendant sanctions, most
health workers may be reluctant to assist women who are in need of abortion services.

The question is: What are the implications of criminalisation of abortion for SRHR? In the first
place, because of fear of arrest and prosecution, health workers may clandestinely perform abortion
at exorbitant prices thereby making abortion services economically inaccessible for the majority
of rural and urban poor women. In any case, because of criminalisation of abortion, information
about the discreet services provided by health workers may not be available. Poor rural women,
whose access to modern health services is limited by financial constraints and geographical
distance, often resort to abortions performed by untrained and unskilled providers using unsafe
instruments or may attempt to self-induce an abortion. Abortion significantly contributes to
maternal mortality and morbidity in Uganda. It has been estimated that in 2008, abortion related
causes accounted for 26 per cent of all maternal mortality in the country with many more women
suffering debilitating injuries from unsafe abortion procedures.

According to the WHO (2012: 19),

complications of unsafe abortion include haemorrhage, sepsis, peritonitis, and trauma to the cervix,
vagina, uterus and abdominal organs. About 20-30% of unsafe abortion cause reproductive tract
infections and 20-40% of these result in infection of the upper genital tract. One in four women
who undergo unsafe abortion is likely to develop temporary or lifelong disability requiring medical
care. For every woman seeking post-abortion care at a hospital, there are several who have had an
unsafe abortion but who do not seek medical care, because they consider the complication as not
serious, or because they may not have the required financial means, or because they fear abuse,
ill-treatment or legal appraisal.

It should also be pointed out that abortion is not only a question of gender but also a class issue.
In 2003, 68-75 per cent of rural poor women who had an abortion experienced complications,

156
Concluding Observations of the CESCR. E/C.12/1 Add. 101, para 23.
157
UN Committee on CEDAW, General Recommendation 24 (article 12 of the Convention [Women and Health], 20th Sess., para 11,
A54/38/Rev.1,chap 1 (5 February, 1999).

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compared with 17 per cent of non poor urban women who were handled by a doctor. In any case,
most urban women may afford the cost of safe termination of pregnancy.

It is unfortunate that the law restricts an important aspect of women’s SRHR: the right of access
to safe abortion services. The law is discriminatory in that it criminalises health services ‒ access
to abortion ‒ that only women need. Such law impairs women’s right to reproductive choice ‒ to
make free and responsible decisions. In so doing, the state through law exercises a significant
influence over a woman’s bodily autonomy in general and over the construction of her sexuality
in particular. A woman is compelled to be a mother, yet from a human rights perspective,
motherhood should be a choice that is available to those who need it. Denying women the right of
access to safe abortion makes them bear the hardship and blame for unwanted pregnancies,
ignoring the fact that men bear the responsibility too, and that unwanted pregnancies may have
resulted from unwanted intercourse such as rape. In such a case, the law violates women’s rights
to health, bodily integrity and at times life itself. As the World Health Assembly (WHA) noted in
2004,
as a preventable cause of maternal mortality and morbidity, unsafe abortion must be dealt
with as part of the Millennium Development Goal on improving maternal health and other
international development goals and targets.

2. Poverty.

Some of the barriers of access to and utilization of these maternal health care services include:
cost, access, infrastructure, quality and sustainability of care, and information deficit and attitudes.
Women may also delay to seek appropriate medical care in time; delay in reaching adequate health
facility; and delay in receiving health care at the facility. For women seeking maternal health care,
costs include those for facilities and services, and involve both formal and informal fees, the cost
of drugs and equipment, transport to a hospital or clinic and the opportunity costs of getting to a
health facility and receiving care. Poverty is thus a barrier to realization of MHRs and is an
immediate cause of maternal mortality and morbidity as it prevents many women from getting
proper and adequate medical attention.158

3. Lack of political will

The state has the primary responsibility to ensure realization of SRHRs. However, the state must
have the political will to discharge this responsibility. Political will plays a crucial role in agenda
setting and the success and failure of any intervention. An issue becomes a political priority
depending on the interests and viewpoint of political leaders. They are the ones to decide whether
to increase the military or police budget or state house budget; buy more tear gas and police
equipment to quell a demonstration and keep a leader in power or increase the health budget.
Maternal health issues may be prioritized in policy documents, but is implementation prioritized?
Political beliefs and values have a defining influence on political leaders’ views of health related
issues. If a leader believes in regime survival and preservation, he or she will prioritize resources
towards that end to the detriment of health issues. In Twinomugisha’s view, the current state does
not take maternal health issues seriously. Recently, government spent over $ 740 million (over
158
Twinomugisha; Maternal Health, Politics and the Law.

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1.7 trillion shillings) on the purchase of military jets. Without much donor support, it is doubtful
whether the ruling National Resistance Movement (NRM) regime would be able to spend as it
does on the military.

Whereas it may be understandable that the government must spend on defence to protect citizens’
lives and property, the question is: why such expenditure when the country is said to be at peace?
The jets are simply displayed on big occasions to instill fear in the citizenry, yet women are dying
or suffering injury due to a lack of critical maternal health services. The government also spends
a lot of classified resources on the purchase of police equipment including guns, batons, sticks,
tear gas canisters, bull-dozers, heavy and light motor vehicles in order to proscribe and suppress
dissent using draconian provisions of the 2013 Public Order Management Act, which limits
constitutionally protected freedoms of expression, assembly and association. If the money spent
on suppressing opposition activities was channeled into maternal health, the maternal mortality
rate would have dramatically reduced.

Otherwise the $ 740 million spent on military jets as illustrated above or the 600 million shillings
or more spent on the President daily and the 773 billion on the 2016 campaign would have been
invested in critical aspects of maternal health care such as skilled birth attendance and EmOC,
which according to the World Bank can bring down the maternal mortality rate by 74 per cent. As
various commentators have observed, political will and focused leadership make innovative, cost-
efficient interventions possible.159 Unfortunately, there is a lack of political will to marshal and
direct the available physical, financial, human and other resources towards realization of MHRs.

4. Inequitable Gender Relations

Women who are battered by SAPs have another hurdle to contend with: inequitable gender
relations. The concept of gender refers to the distinctive qualities of women and men that are
constructed by society. According to FAO (1997), gender is ‘a central organized principle in
societies, and often governs the processes of production and reproduction, consumption and
distribution’. The concept of gender relations refers to ‘the ways in which a culture or society
defines rights, responsibilities and the identities of men and women in relation to one another. It
also refers to the relations between men and women that are socially, economically, politically and
culturally constructed. Meena (1992: 102) defines gender as:

[s]ocially constructed and culturally variable roles that women and men play in their
daily lives. It refers to a structural relationship of inequality between men and women
as manifested in labour markets and in political structures, as well as in the household.
It is reinforced by custom, law and specific development policies. Whereas sex is
biological, gender is acquired and constructed by society.

Inequitable gender relations are a key challenge to the realization of women’s right to health and
all its components such as SRHRs. Inequality of these relations is perpetuated by the state and
private actors, including the family and the community. Because of their poverty, which is largely
attributed to the debilitating and disparate impact of SAPs, most women are continuously kept

159
Catford, 2006; WHO, 2010).
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under time pressures trying to fend for themselves and their families. Because of the triple gender
roles they play as producers, reproducers, care givers, agriculturalists and managers, these women
have little or no time to access and utilize maternal health services. Traditional division of labour
assigns women the responsibility of domestic work and care of adults in addition to their child
bearing and rearing roles. Men are often assigned productive work which generates income.
Some women work in agricultural plantations and fields where they are exposed to all sorts of
pesticides, which may be harmful to their health and that of the foetus. Rural women, whether
pregnant or not, use firewood to prepare food and are exposed to smoke, which may harm their
lungs and foetus. Women who work in the agricultural and manufacturing sectors may not have
protective gear and may be exposed to occupational accidents, hazards and injuries.69 Women in
the agricultural sector are required to perform labour intensive tasks such as weeding, transplanting
and harvesting irrespective of whether a woman is pregnant or lactating. Perhaps, most of rural
women’s gender roles clearly fit in the description of the ‘Woman of Africa’ by Okotp’Bitek
(1970: 41) as,

sweeper, smearing floors and walls, with cow dung and black soil, cook, ayah, the
baby on your back, vomiting, washer of dishes, planting, weeding, harvesting,
storekeeper, builder, runner of errands, cart, lorry, donkey.

Because of their triple gender roles, women hardly get time to effectively utilise maternal health
care services. This strenuous work has deleterious consequences for maternal health. While men’s
work is valued, either directly through paid remuneration or indirectly through status and power,
women’s work is often not recognised. Women’s work is vital to the country’s economy, but
remains unrecognised and or unpaid. Perhaps, if women’s work was recognised and paid, they
would have money to purchase health care and other socio-economic services. Women may also
lack economic decision making power. Whereas women contribute over 70 per cent of the labour
force in agriculture, only 7 percent own land and through male relations . Yet, land rights for
women would increase productivity and equip them with resources for their welfare. In spite of
this reality, policy implementers do not actively engage men as partners in the health and well-
being of women.

Gender and cultural norms may also dictate early marriages for girls leading to early childbearing
and high total fertility, both of which are linked to a higher risk of maternal mortality and
morbidity. Women may also not access and utilize maternal health services due to violence
orchestrated by their husbands or partners.

5. Human resource and infrastructure;

There is no doubt that health workers play critical roles in any health system (Ministry of Health,
2015b) and ‘sufficient, competent, equitably distributed, motivated and facilitated health workers
have to be available at all levels of the health system in order to achieve a good standard of health
by all people in Uganda’ (ibid). However, in Uganda, there is a substantial shortage of skilled
health care providers such as doctors, nurses and midwives to meet maternal health needs. In fact,
the health worker population ratio is 1:1298 compared to the World Health Organization (WHO)
recommended ratio of 1:439 (MOFPED, 2010). In 2010, the doctor - patient ratio stood at 1:24,725
and the nurse -patient ratio at 1:11,000.7 Due to poor working conditions, especially low salaries,
doctors are moving to other countries for better pay.8 And to government, it is business as usual:

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instead of developing strategies to motivate and retain health workers, it has encouraged the export
of this scarce resource to countries such as Trinidad and Tobago.9 Yet, one of the key factors in
reducing maternal mortality and morbidity is the availability of and access to skilled health
personnel.

Conclusion;
Twinomugisha concludes as follows

Maternal health is a question of social justice: every mother should have equal access to MHRs
irrespective of where she lives or what she does. Protecting the health of mothers during
reproduction safeguards their future contribution to society and ensures the health and productivity
of future generations. Realization of MHRs is hampered by neo-liberalism, which exalts market
forces and private interests to the detriment of maternal health. Neo-liberal policies, which
emphasize maximization of profits and their benefits, are antithetical to realization of MHRs of
poor women, since they lack income to pay for maternal heath commodities. Realization of MHRs
is also hampered by inequitable gender relations and criminal abortion laws. There is also a lack
of political will to judiciously and efficiently marshal and direct resources towards the realization
of critical components of MHRs.

The realization of MHRs will remain elusive in Uganda unless the root causes of maternal
mortality and morbidity are addressed. The problem is not simply poverty, which is a mere
symptom of the problem, but the unbalanced concentration of capital in fewer hands and the unjust
distribution of social wealth. Economic growth alone may not enhance maternal health. Economic
growth must be combined with state action to ensure redistribution of resources and the direction
of the benefits of economic growth to socio-economic projects for the public good such as maternal
health. Most causes of maternal mortality are surmountable and the benefits of investing in
maternal health far outweigh the costs. What is required is good politics that prioritizes investment
in key issues of human development such as MHRs. With increased political will and prudent,
judicious and efficient use of financial resources, maternal mortality and morbidity can be
drastically reduced

CASES

A review of the case law which has dealt with issues of maternal health in Uganda shows that few
cases of this kind have arrived in the Judiciary whether for review or to test the constitutionality
of specific provisions of the law or practice. Needless to say, such review can help demonstrate
not only that courts of law have an important role to play in this respect, but also that there can be
alternative, more sensitive and progressive approaches to these issues once they come up for
adjudication.

The first case that sought to test the right to health provisions of the Constitution was Joyce
Nakacwa v. Attorney-General & Others.191 Here, the petitioner alleged that the denial of medical
and or maternity care, constituted the violation of her Article 33(3) human rights which obliges
the state to “protect women and their rights, taking into account their unique status and natural

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maternal functions in society.” A preliminary objection challenged the jurisdiction of the
Constitutional Court arguing that since the allegations by the petitioner did not require
constitutional interpretation, the petition should be dismissed. Although the Court dismissed the
objection the petitioner died before the petition could be heard, leading to its abatement.

The later case of Centre for Health, Human Rights and Development & Others v. Nakaseke
District Local Administration, was more positive. The action was brought on behalf of the
deceased who died at the defendant’s hospital due to the lack of emergency obstetric care. The
plaintiffs argued that the deceased had an obstructed labour condition but did not receive the
appropriate medical care and attention due to the absence of a doctor assigned to her. Following a
visit to the hospital, Justice Kabito held that the deceased’s right to basic medical care had been
violated under Articles 33(3) and 34 of the Constitution which protects the rights of children

The example of the Indian case of Laxmi Mandal & Others v. Deen Harinagar Hospital &
Others, demonstrates how courts can creatively deploy international law in order to ensure
that rights violations are properly redressed. In that case the court recognized the
internationally-protected right to maternal health care and ordered compensation for the violations
experienced by two impoverished women and their babies during childbirth. The court found that
there were violations of the fundamental right to life under the Constitution, and of the right to
health under international law. The state and its entities were thus ordered to compensate the
women and their families to ensure the provision of food and medication to the two babies. The
state and its entities were also directed to remedy the deficiencies in, and improve the monitoring
of, public health programmes

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