By Nsereko Ibrahim

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ugandans desire for a country where basic services are accessible and available; a country where there is representation for all regardless of social, cultural and other backgrounds, with leaders who mind about the progress of the nation and the people. It is possible and I should say that we are making strides and one of the ways is through effective budget advocacy processes that stand out to lobby for change in a bid to ensure basic needs like health are adequately prioritized while budgeting for the country.

The budget advocacy process has resulted into the development of the national budget framework paper for financial year 2016/2017 that is referenced to the National Development Plan II (2016-2020), as well as ministerial policy statements and sector performance reports. The paper has been shaped to focus in a more consultative process that involved national stake holder consultations and Civil Society Organizations under the Civil Society Budget Advocacy Group (CSBAG).

Although the high level engagement and consultations would generate impact gains, if peoples’ views and ideas are respected, refined and incorporated into national priority goals, participation in the budget processes should be both a means and an end to itself. It should be a productive space for the public in the sphere of civil society organizations to offer input into the budget development process in order for it to resonate with the human rights principles of community participation.

In review of the ministerial policy statement 2016/17, Ug.shs 44.99billion has been allocated as recurrent budget to run health service delivery under Primary Health Care services. This is envisaged to support 137 local governments with 56 General Hospitals, 61 Private Not For Profit Hospitals and 4,205 Lower Level Health Units.

It is thus critical that government and policy makers strive to incorporate community needs in the budget framework. Critical and measurable action steps should be manifested towards prioritizing community needs of the 19% Ugandans that live below the poverty line and those who suffer catastrophic expenditures on health care. It is therefore imperative to prioritize and increase funding for primary health care under the local government funding. This is expected to impact significantly on access to health care and also check on the regional disparities in access to health care.

The district Primary Health Care grant in financial year 2016/17 is proposed to be reduced by 1.5 billion. This reduction will affect service delivery at the lower health facility level. However, a study undertaken by the ministry of health indicated that in order to enhance health service delivery in the local governments, an additional Ug.shs 35 billion is required to make the current facilities operate at a reasonable level. Primary Health Care funds support the functionality of health facilities, it provides for basic health services, utility bills and remuneration of support staff.

It is upon such a background that the Civil Society Budget Advocacy Group(CSBAG) advocates to government to allocate an additional Ug.shs 35billion to local governments to cater for provision of adequate Primary Health Care Services, in order to increase access to health care services. It is thus prudent for government to reinforce strategic plans with community views and interests. The local government financing should be prioritized to improve access to health care services in local governments. The intervention is foreseen to decongest the national referral hospital. This is in line with the global movement of increasing access to health care services a critical aspect in framing the right to health which promotes equitable health provision for all Ugandans.

Donny Silus Ndazima
ndazima@cehurd.org
Center for Health, Human Rights and Development

When Sylvia Nalubowa went into labour in Uganda’s Mityana district in August 2009, she was taken to a local health centre where she expected to have a normal birth, supervised by a midwife.

After she had delivered her first baby the midwife realised there was a twin on the way. The midwife recommended that Nalubowa be taken to the district hospital where a doctor could handle the second delivery.

But when she arrived at the Mityana District Hospital in Central Uganda, the nurses asked for her maternity kit. This is commonly known as a “mama kit” and contains a plastic sheet, razor blades, cotton wool or gauze pad, soap, gloves, cord ties, and a child health card. All mothers delivering babies in Ugandan hospitals and clinics are expected to bring their own “mama kits” when they go into labour.

But Nalubowa had used her “mama kit” at the first health facility when delivering her first child. The nurses would hear none of her excuses and demanded money to purchase the kit before they could attend to her.

Nalubowa and her baby died.

Jennifer Anguko died under similar circumstances. She arrived at the Arua hospital in North Western Uganda at 8.30am on December 10, 2010 but was not attended to for 12 hours by which time her condition and cries for help were out of control.

One hour later she was taken to theatre but she and her baby died during the procedure. The cause of her death listed in the post mortem report was a ruptured uterus.

The women’s cases are two of many

Sixteen women die in Uganda every day during child birth in instances that could be avoided. In 2011, the World Health Organisation reported that Uganda registers up to 440 deaths for every 100 000 live births.

This is unlike Rwanda where maternal mortality decreased by 77% between 2000 and 2013 and currently stands at 320 deaths for every 100 000 live births.

Most maternal deaths in Uganda are due to severe bleeding, infection, hypertensive disorders and obstructed labour. Others are due to causes such as malaria, diabetes, hepatitis and anaemia. All these are aggravated by pregnancy.

The Ugandan government is committed to providing all citizens with free health services. But it is common to go to a government health facility and find that medicines are not in stock and health workers are not paid. Patients also say that they are often met by health staff who are unenthusiastic about attending to patients expecting free services.

In 2013, the doctor to patient ratio in Uganda was estimated at one doctor for just under 25 000 patients. The nurse to patient ratio sat at one nurse for 11 000 patients.

The country’s public health system has a tiered structure with two national referral hospitals, 11 semi-autonomous regional referral hospitals, and a well established district health system with healthcare centres in 56 districts.

Health care services are financed through general tax revenue and donor funding. Although user fees for health services in public facilities were abolished in 2001 patients are still expected to make direct out-of-pocket payments for some services and drugs.

Fighting for a right

In 2011 lawyers at the Centre for health, Human Rights and Development, a non-profit, research and advocacy organisation, began gathering evidence to hold the Ugandan government to account for Nalubowa and Anguko’s deaths.

The case is now before the country’s Constitutional Court.

In what has turned into a landmark case, the centre has argued that failing to provide essential maternal health commodities in government health facilities is an infringement on women’s rights. The rights to life as well as health are guaranteed under the country’s constitution as well as international human rights instruments the government has signed up to. These include the:

• International Covenant on Economic Social and Cultural Rights (ICESCR),
• Convention of Elimination of All forms of Discrimination Against Women (CEDAW), and
• Maputo protocol.

The court erred

At the first hearing before the Constitutional Court government lawyers objected to the case. They argued that the judiciary was not competent to hear a case that required the executive arm of government to allocate resources to the health sector.

The court agreed and dismissed the case.

But the centre appealed to the Supreme Court, the highest court of appeal in Uganda. It argued that the justices of the Constitutional Court erred in denying them an opportunity to hear the case based on its merits.

In October 2015 the Supreme Court’s seven judges agreed. They made a unanimous ruling that the Constitutional Court judges had erred in dismissing the case. In their judgment they argued that the case had key questions that needed constitutional interpretation for the people of Uganda.

They contended that there is nothing the executive or legislature can decide on that may not be subjected to judicial review – especially if it is done in line with the constitution. And they have ordered the Constitutional Court to hear the case which is now before the Constitutional Court pending a hearing by a new panel of judges.

Making health care a priority

The case has contributed to jurisprudence to help people realise their social economic rights in Uganda.

But it has also catalysed improvements in health service provision. Since the case was initially heard government funding for the health sector has improved from US$ 215 million (UGX 737.60 billion) to US$ 328 million (UGX 1127.48 billion) and more health workers have been recruited. Mothers, however, are still expected to bring their own “mama kits” when going into labour.

There has also been a reduction in maternal deaths. These have fallen from 440 deaths for every 100 000 live births in 2010 to 343 by 2015.

Most importantly, civil society organisations are now, more than ever, alert to demanding women’s health care rights.

 

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