The republic of uganda in the supreme court of uganda at kampala

DEATH CERTIFICATE

Name : JUDITH BJTWIRE

Village : KABALE

Date of Birth : 11/5/99

Date of Death : 21/5/99

Disease or condition directly leading to death

EMPYSEMA, RESPIRATORY FAILURE

Morbid condition if any leading to the above

EMPLMA PTB CRYPTOCOCCAL MENINGITIS

HEPATITIS RENAL FAILURE

Other significant condition contributing to the death,

but not related to disease or condition.

BRONCHO PLEURAL FISTULA, CMV RETINITIS

ADVANCED IMMUNOSUPPRESSION

Name of Medical Doctor: ATWIINE DIANA.”

In the affidavit in reply to which I have already referred, the Petitioner deponed –

(a) that his child with Judith Bitwire did not die of AIDS,

(b) that he did not know the cause of Judith Bitwire’s death,

(c) that his appearance was normal and cannot be used to know or believe that he was a victim of AIDS, and

(d) that there is no obvious resemblance of AIDS victims, from which a person can be known or be believed to be an AIDS victim.

In paragraph 6 he deponed:

“6. That the statement was false in all respects and that the V Respondent has never diagnosed me or tested me and found me as an AIDS victim and has never asked me about my health status.”

Professor Rwomushana, Director of Research and Policy Development at the Uganda AIDS Commission, swore an affidavit in support of the 1 Respondent’s answer. He agreed with Dr. Ssekasanvu’s report as “a correct statement of the medical diagnosis of AIDS.” He however, pointed out that research in Uganda had established that there was a concept of “Community Diagnosis of AIDS based on Community perceptions beliefs and observations concerning HIV/AIDS.” According to Professor Rwomushana, research in Uganda had revealed that it is a common widespread practice in lay conversations to refer to individuals in the community who have lost partners and very young children, presumably due to AIDS, as persons suffering from AIDS; and that it is normal practice for ordinary people to make presumptions that an individual is suffering from AIDS upon observation of skin changes.

On the application of the Petitioner, Dr. Diana Atwiine appeared in Court for cross-examination. In her testimony she confirmed that she had prepared and signed the death certificate in respect of Judith Bitwire. She said that it was not correct to say as put to her by counsel for the Petitioner that every sick person had immunosuppression. She pointed out that Judith Bitwiire was a case of advanced immunosuppression. She disclosed that she had given the death certificate to the three relatives of Judith Bitwire who came to the centre after her death, and who included her father, and the Petitioner whom she described as Judith Bitwire’s former husband. She was evidently uncomfortable from professional ethics point of view about discussing the subject and was not pressed for any more details.

From all that evidence the Court had to determine if, as maintained by the Petitioner, the 1 Respondent made the statement without reasonable ground for believing it to be true. The 1st Respondent stated the grounds on which his belief was based. The existance of those grounds was not seriously challenged. Although the Petitioner deponed that the child did not die of AIDS, he did not disprove it by stating any other cause of its death. And although he claimed that he did not know what caused the death of Judith Bitwire, the evidence that he was among the three relatives who received the death certificate tended to show that he most probably knew the cause. Lastly although he deponed that his appearance was natural, he did not dispute that it had changed over time as alleged by the 1st Respondent. The serious bone of contention, therefore, was whether the grounds stated by the 1st Respondent were reasonable grounds within the meaning of S.65 of the Act.

To my understanding, the phrase “reasonable grounds for believing” must refer to facts on which any reasonable person would base a belief. In this regard a reasonable person is one endowed with reason and possessed of common knowledge. It is in that context that I found the evidence of Professor Rwomushana to be more relevant on the point at hand, than that of Dr. Ssekasanvu. Dr. Ssekasanvu was concerned with facts (signs and symptoms) which lead a person trained in medical skills to conclude that someone he has examined is suffering from AIDS. Professor Rwomushana, on the other hand, referred to facts which lead a lay/common person in Uganda to believe that the neighbour is suffering from AIDS.

Mr. Balikuddembe criticised Professor Rwomushana’s evidence as based on idle talk and gossip, because the professor did not avail to Court evidence of the research he referred to. That criticism was not justified. Even the research must have been based on the so-called “idle talk and gossip.” In any case, the substance of the evidence is such common knowledge that even without the professor’s evidence; the Court could have taken judicial notice of it. In Uganda we have been with the epidemic of AIDS for two decades. The general public in Uganda knows some basic facts about it, including the fact that it is commonly transmitted through sexual contact, and the fact that an infected woman who gets pregnant passes the disease to her baby. This is common knowledge acquired, not from superstition or speculation, but from persistent propagation by those with medical knowledge, coupled with experience of realities on the ground. The fact that there are instances where infection is not passed on, as pointed out by Dr. Ssekasanvu, is in my view, a detail that would be more in the knowledge of medical professionals, than of the lay or common person referred to by Professor Rwomushana.

To insist, as seemed to be the Petitioner’s case, that the reasonable ground could only be derived from diagnosing, testing or consulting the Petitioner, would be to delude the provision in S.65 of its meaning and the in-built defence. If the 1st Respondent had done any of those things, then he would most probably have found out the health status of the Petitioner, and would therefore, have known the statement to be false when he published it. The question here, however, was whether his defence that he believed the statement to be true on basis of the grounds he stated was available to him. In my considered view it was. In this regard I would point out that while in the provision the legislature intended to condemn a candidate who publishes a statement about the illness of another knowing it to be false, it also clearly intended to excuse a candidate who does so, believing on reasonable grounds, that the statement is true.

For those reasons, I found that it had not been established that the 1st Respondent published the maligned statement without reasonable grounds to believe it to be true.