How local courts are shaping public health

“Although the government developed the 2007 roadmap aimed at accelerating the reduction of maternal mortality in Uganda, it’s now 10 years since the roadmap was published and the policies have not led to any meaningful reductions,” the court ruled, further directing the government to prioritise and provide sufficient funds in the national budget for maternal health care.

The court also ordered, through the Health minister, that all the healthcare workers who provide maternal healthcare services in Uganda be fully trained and all health centres be properly equipped within the next two financial years (2020/2021 and 2021/2022). 

The Centre for Health, Human Rights and Development (CEHURD), a plaintiff in the case, says there have been a few positives to report since that 2020 decision, notably a marginal increase in the health budget from Shs3.1 trillion to Shs3.7 trillion.  

“This is the highest single-year increment the health sector has received. It also represents the highest single increment to the health sector budget ever,” Ms Noor Nakibuuka, the deputy executive director for programmes at CEHURD, says of the increment in the Financial Year 2022/2023.

Right to privacy
In 2016, the International Community of Women Living with HIV in East Africa (ICWEA), headed to the Constitutional Court to challenge a raft of sections in the HIV/Aids Prevention Act, 2015 on accounts of discrimination and vagueness.

Provisions such as one where the results of an HIV test may be disclosed or released to any other person were deemed problematic.

“The right to privacy of a patient’s medical records is recognised in various jurisdictions that give pride of place to respect the rule of law and human rights,” the petitioners argued.

Dr Henry Onoria says the joint United Nations Programme on HIV/Aids (UNAIDS) came with a brief on the criminalisation of HIV before the HIV Prevention and Control Act came into force. A legal consultant in the health sector, Dr Onoria adds that “UNAIDS urges governments to limit criminalisation to cases of intentional transmission.”  

In determining this issue, the Constitutional Court ruled that whereas the Act doesn’t define the phrases “close and continuous contact … nature of contact [or] exposure to bloody fluids”, they don’t defy interpretation by courts because proof of these circumstances depends on evidence. 

“Circumstances can’t be placed in statute to obviate the risk of wrong interpretation because they are not always the same,” Justice Stephen Musota, who wrote the lead judgement in January, contended.    

On the contention that the act is violating the right to privacy, Justice Musota ruled that “disclosure to any person with whom the infected person has close contact or is exposed to blood or fluid of an infected person is a preventative measure to avoid further spread of the virus.” 

He further reasoned that the provision “also seeks to protect people in close contact with the infected person.” 

Progressive judges needed?
As well as contesting its vagueness, the petitioners had also contended that the legislation singled out only one communicable disease—HIV/Aids. They argued that singling out persons living with HIV is in contravention of Article 21 of the Constitution, which provides for equality. 

Justice Musota, however, begged to differ.
“I’m unable to see the unconstitutionality of this provision of the Act,” Justice Musota ruled early this year, adding, “In determining the constitutionality of legislation, its purpose must be taken into consideration. Both the purpose and effect are relevant in determining constitutionality of either of an unconstitutionality purpose or an unconstitutional effect animated by the object  the legislation  intends to achieve.”  

The judgement dealt a big blow to litigants who believe that, besides the Executive and the Legislature, the Judiciary can play a critical role in public health.  

“The Judiciary has failed to understand its role in advancing health rights, education rights, and protecting the environment,” Mr Isaac Kimaze Ssemakadde, the executive director of Legal Brains Trust (LBT), said, adding, “Most of our judges are not progressive and that’s why our jurisprudence isn’t rich enough.”  

Prosecuting people on account of spreading HIV, Dr Onoria says, disproportionately affects people who are economically or socially vulnerable and increases the risk of violence toward affected people.  

“The law also fails to recognise that for many women, it is difficult to negotiate safer sex or disclose their status without fear or violence,” Dr Onoria argues.    

Not non-derogable   
While dismissing the ICWEA petition, Deputy Chief Justice Richard Buteera cited a case in which the Irish High Court considered, for the first time, the concept of disclosure of a patient’s medical information, against their wishes, to prevent serious harm to another person.  

“The judge considered in detail circumstances of the relationship between A and B, failure for A to take anti-retroviral drugs, use of condoms by A, expert medical evidence on the risk of B contracting HIV, and medical evidence regarding disclosure by on A,” Justice Buteera noted, adding that the key legal issue in the case—whether medical confidentiality could be breached to prevent harm from occurring  to a third party—arises irrespective of the age of the individuals involved and would apply equally to adults.

The Deputy Chief Justice also ruled that while the right of privacy must be protected, it is not classed as non-derogable as per Article 44 of the Constitution. 

“I have carefully referred to a host of authorities to show that whereas courts are slow to dispense with the right to confidentiality, yet where preserving the right has the effect of putting other people [or the public] in danger or harm’s way, I don’t see why the right should continue to be safeguarded,” Justice Buteera said.  

Dr Onoria emphatically disagrees, citing a case in which the Constitutional Court in the South American country of Colombia outlawed a section in the criminal code that criminalised HIV and Hepatitis B transmission.  

“The court said the provision was overly broad, discriminatory, and didn’t support efforts to prevent new HIV infections,” Dr Onoria says, adding that the court ruled that by singling out people living with HIV, the impugned law violated the principles of equality and non-discrimination.