Court dismisses case to recall defective Life Guard condoms on the market
A person displays a condom. PHOTO/FILE
What you need to know:
- The applicants accused Marie Stopes-Uganda of having acted negligently in the rolling out of defective Life Guard condoms to the public without prior post-shipment laboratory testing by the NDA.
The High Court in Kampala has rejected the request to have defective condoms that had gone into the market in 2020 recalled.
The head of the Civil Division, Justice Musa Ssekaana, in his October 24 decision, reasoned that the case before him was brought under the wrong procedure and that his court could not intervene.
“The applicants, therefore, ought to have brought their action against the respondents’ alleged negligent acts by way of ordinary suit and not a claim of enforcement of human rights. The mere fact of the involvement of the question of fundamental human rights does not automatically entitle the applicants to approach the court by fundamental human rights procedure,” ruled Justice Ssekaana.
He added: “The court will not allow litigants to devise alternative procedures in order to circumvent the set procedure by law. It is an abuse of the court process to use another remedy under the Constitution to avoid a set procedure. This application stands dismissed with costs to the respondents. I so order.”
Background
In 2020, two concerned applicants, the Enforcement of Patients and Health Workers Rights, a local NGO, and Mr Joseph Kintu who claimed to be a victim of defective condoms on the market; sued Marie Stopes-Uganda, the National Drug Authority (NDA), and the Attorney General, seeking various declarations.
“The members of the public who contracted HIV/Aids and other sexually transmitted diseases (STDs) as a result of using the aforesaid defective condoms distributed by the 1st respondent (Marie Stopes-Uganda) before they were recalled are Mr Kintu (the 2nd applicant) and Balinya Suleiman,” an affidavit sworn in by Mr Kintu and others, stated in part, adding: “The 2nd respondent (NDA) later recalled the said batches of Life Guard condoms citing that they were illegally on the market for being defective.”
The applicants accused Marie Stopes-Uganda of having acted negligently in the rolling out of defective Life Guard condoms to the public without prior post-shipment laboratory testing by the NDA.
According to the concerned applicants, the alleged omission resulted in a violation of the right to life, health, and human dignity contrary to the Constitution and international laws that Uganda has ratified with a certain section of the public contracting HIV and other sexually transmitted diseases.
The NDA was accused of failing in its duty to regulate, control, test, and approve safe Life Guard condoms Batch No. 19040205 and 19050105 before Marie Stopes rolled out the same to the market for use by sexually active Ugandans.
On the other hand, the Attorney General was accused of failing in his constitutional and statutory duty to take effective measures to prevent and control HIV transmission.
The concerned applicants had wanted the court to compel Marie Stopes to conduct an audit of Life Guard condoms Batch Nos. 19040205 and 19050105 which were reportedly illegally rolled out to the public, were recalled from the market to ascertain the extent of the damage caused to the users of the said defective condoms.
They had also wanted the court to direct NDA to revoke the licence of Marie Stopes Uganda for the importation and distribution of condoms due to contravention of the mandatory post-shipment testing of imported Life Guard condoms.
Further, they had wanted the court to compel the government, and Marie Stopes to immediately conduct mass sensitisation through the media and other communication channels on the effects of the recalled Life Guard condoms Batch Nos. 19040205 and 19050105 that were found to be defective. But Justice Ssekaana in his analysis, held that the case in point was moot in that apparently, there was no controversy regarding defective condoms on the market.
“The present application also falls in the mootness doctrine which bars the court from deciding moot cases; that is cases in which there is no longer any actual controversy. The exercise of judicial power depends upon the existence of a case or controversy,” Justice Ssekaana observed.
“The function of a court of law is to decide an actual case and to right actual wrongs and not to exercise the mind by indulging in unrewarding academic casuistry or in pursuing the useless aim of jousting with windfalls. The doctrinal basis of mootness is that courts do not decide cases for academic purposes because court orders must have a practical effect and be capable of enforcement,” he added.
