Wakilii

Mukoda alias Naigaga v International Aids Vaccine Initiative & 11 Others (HUMAN RIGHTS PETITION NO. 305 OF 2017)

High Court · [2020] UGHCCD 88 · 2020 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition brought under Article 50(1) and 50(2) of the Constitution alleging violations of fundamental rights in the context of a medical research study.
Decision
Petition dismissed

Observed later treatment

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Holding

Held that the petitioner failed to prove violations of her constitutional rights under Articles 22, 24, 41, and 45 of the Constitution. The court found that the petitioner was Hepatitis B positive at enrolment, that her informed consent was properly obtained in Luganda which she understood, and that no evidence established that the study protocol was breached or that her rights to health information or freedom from degrading treatment were violated. Petition dismissed.

Outcome

Petition dismissed

Facts

The petitioner enrolled as a participant in a medical research study on HIV vaccine trials. She claimed she was Hepatitis B negative at enrolment and was vaccinated with Engerix B vaccine. She later tested positive for Hepatitis B and alleged the vaccine was ineffective. She claimed she did not give informed consent as the consent document was in Luganda which she could not adequately understand, and that the respondents violated her constitutional rights to life, health, freedom from cruel treatment, and access to health information. The respondents adduced evidence through multiple affidavits that the petitioner was Hepatitis B positive before enrolment on 23 September 2014, that Hepatitis B status was not an exclusion criterion under the study protocol, that the petitioner was functionally literate in Luganda and scored 10/10 on a comprehension test, and that she served as a peer facilitator teaching other participants in Luganda.

Issues

  1. Whether the fundamental rights and freedoms of the petitioner were infringed upon by the respondents.
  2. Whether the petition disclosed any cause of action against the 3rd respondent.
  3. Whether the petitioner was HBV positive at the date of her enrolment into the study.
  4. Whether the petitioner's consent to participate in the study was unlawfully procured.
  5. Whether the respondents violated the petitioner's constitutional rights to life, health, freedom from cruel treatment, and access to health information.
  6. What remedies are available to the parties.

Orders

  • Application dismissed with costs.

Rules and key headnotes

Fundamental Rights — Enforcement Procedure — Affidavit Requirements
An affidavit in support of a constitutional petition must contain facts and not arguments or matters of law. Affidavits that are prolix and argumentative, or that contain averments not based on the deponent's personal knowledge but on advice from lawyers, offend Order 19 Rule 3 of the Civil Procedure Rules and such offending paragraphs must be expunged.
Right to Access to Information — Applicability to Private Entities
Article 41 of the Constitution provides for the right of access to information in the possession of the state or any organ or agency of the state. The Access to Information Act 2005 applies only to government ministries, departments, local governments, statutory corporations and bodies, commissions and other government organs and agencies. Private entities and research institutions are not organs or agencies of the state for purposes of Article 41.
Informed Consent — Medical Research — Language and Comprehension
Informed consent in medical research requires that information be given to the subject in a language understandable to the subject, that the subject be adequately informed of aims, methods, risks, benefits, and the right to withdraw, and that consent be given voluntarily free of coercion. Where a consent document is provided in a language the subject demonstrates ability to read and understand, and the subject scores full marks on a comprehension test, the consent is valid even if the subject later claims insufficient understanding of that language.
Burden of Proof — Constitutional Petitions — Technical and Scientific Issues
Under Section 101 of the Evidence Act, whoever desires a court to give judgment as to any legal right dependent on the existence of facts which he asserts must prove those facts exist. Where a petitioner alleges her medical test results at a particular date showed a certain status, and that status is disputed by respondents who adduce expert affidavit evidence of laboratory results showing a different status, the petitioner bears the burden of adducing cogent scientific evidence to prove her assertion. Failure to adduce such evidence is fatal to the claim.
Freedom from Torture and Inhuman or Degrading Treatment — Standard of Proof
The courts must apply a very strict test when considering whether there has been a breach of an individual's right to freedom from torture or inhuman or degrading treatment under Article 24 of the Constitution. Only the worst examples are likely to satisfy the test. The distinction between torture and inhuman or degrading treatment lies in the difference in the intensity of suffering inflicted. The court considers factors such as duration of treatment, physical and mental effects, and the age, sex, health and vulnerability of the victim.

Legislation cited (16)

Cases cited (3)

  • Male H Mabirizi K. Kiwanuka v Attorney General (Miscellaneous Application No. 7 of 2018)
  • David Kato Luguzu & Anor v Evelyn Nakafeero & Anor (High Court Civil Appeal No. 37 of 2011)
  • Ireland vs United Kingdom ECHR Application No.5310/71

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Mukoda alias Naigaga v International Aids Vaccine Initiative & 11 Others (HUMAN RIGHTS PETITION NO. 305 OF 2017) [2020] UGHCCD 88 (8 May 2020)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.