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

(7) That research in Uganda has established that there is a concept of “Community Diagnosis” of AIDS based on community perceptions beliefs and observations concerning HI V/AIDS.


(8) That the said concept is a useful research tool that enables research into the community awareness as to the risk and danger of the spread of HIV/AIDS.


(9) That research in Uganda has revealed that it is common, widespread practice in lay conversation to refer to individuals in community who have lost partners and very young children presumably due to AIDS, as persons suffering from AIDS. An example of such observations can be taken from research settings such as in Kyamulibwa, Masaka District where the Uganda Virus Research Institute and the Medical Research Council have undertaken community based research for a period of over ten years.

10. 
    That the said practice is common at funerals in reference to deaths of persons and is used by the community to protect families through guarding against inheritance of spouses who have lost parties and other sexual based relationships.
    
11. 
    That the practice is a societal advantage, which is more wide spread in a Country where there are high levels of awareness and openness about AIDS. such as Uganda. That the practice has devolved a right upon people in the community to openly express their beliefs in matters concerning AIDS and its transmission.
    

15. 
    That research has shown that it is normal practice for ordinary people to make presumptions that an individual is suffering from AIDS upon observation of skin changes and the individual’s AIDS related bereavement.”
    

The evidence which the petitioner adduced is:

“I know that I am not suffering from ‘AIDS’, but the respondent maliciously made false allegation that I was a victim of AIDS without any reasonable ground for believing that was true….”

In his supplementary affidavit dated 5th April, 2001 he stated he was a medical doctor by profession and a retired Col. In UPDF. He admitted that Judith Bitwire was his companion up to 1 991 and that she died in 1 999; but he did not know the cause of her death. He admitted that the child he had had with late Judith Bitwire also died in 1991, but that this child never died of AIDS.

I wish to point out that throughout petitioner’s affidavit, there is no where there was any attempt by the petitioner to prove falsity of the statement that appeared in the Times Magazine, which is the subject of the complaint under discussion. The evidence in the petitioner’s affidavit which comes nearer to proving that the statement was false is:

‘That I am an adult and Medical Doctor by profession. I know that I am not suffering from AIDS, but the respondent maliciously made false allegation that I was a victim of AIDS without any reasonable ground for believing it to be true.”

Question is whether it can be said that the petitioner has discharged the onus that lay on him on the strength of that evidence. In my considered opinion, according to the case of Dr. Fag!it Singh v Glani Kartar Singh (1966) AIR (SC) ZZ the Indian Supreme Court held the burden of proving that the 1 St respondent statement was false and that he did not believe it to be true, and that it had the effect of promoting the election of the respondent in preference to petitioner and that the voters were scared of voting for the petitioner who by necessary implication was destined to fail to serve out the statutory term, was on petitioner. Although according to the decision in Dr. Faciiit Sinah v Glain Kartar Singh (supra) the onus is light, it appears to me that there can only be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies. As it was held in Stoney v East bourner Rural District Council (1924) CA 367 the onus is not merely a question of weighing feathers on one side or the other, and of saying that if there were two feathers on one side and one on the other, that would be sufficient to shift the onus. What is meant is, “that in the first instance the party on whom the onus lies must prove his case sufficiently to justify a judgment in his favour if there is no other evidence given” to contradict it.

Although the burden on petitioner is light, the evidence in the affidavit of the petitioner in this case cannot be taken to amount to prima facie case that was expected of the petitioner to prove the necessary ingredients. At one stage Dr. Byamugisha for l respondent submitted that in order to prove he was not a victim of AIDS, he should subject himself to AIDS test, but with due respect, the result of the test would not solve the problem, because it appears to me that even if the petitioner subjected himself to HIV/AIDS test and was found to be negative, that might not mean that the 1st respondent was guilty of illegal practice since his statement is based on the fact that he honestly believed it to be true on reasonable ground. The onus was therefore on the petitioner to prove, that 1st respondent’s assertion/statement was not honestly made on the ground that he believed it to be true.

In the case of Wilson v Inyang (1951) 2 KB 799 the defendant was an African who had lived in England for 2 years. He had obtained a diploma of the Anglo-American Institute of Drugless Therapy. To obtain the diploma he had first undergone a course of instruction which consisted partly of a correspondence course and partly of practical training. The practical training was given to the defendant which he attended for 6 months. He then sat for examination before obtaining the diploma, and wrote about six papers. After he had obtained the diploma he obtained a certificate of membership of the British Guild of Drugless Practitioners. The Diploma and Certificate were signed by one Dr. Brown Neil.

The defendant had never treated any patient, because none ever applied to him for treatment, but genuinely believed himself, by reason of the course of instruction above referred to, to be qualified to diagnose disease and to relieve some of these in their early stages by minor manipulation and by prescribing exercises and diet.

It was contended for prosecution that even if the defendant believed that he was qualified to practice in medicine, he had no reasonable grounds for that belief.

For defendant it was contended that mens rea was a necessary ingredient of the offence and that he should not be convicted of willfully and falsely contravening the Act if he genuinely and reasonably believed that he was qualified to practice in medicine and that regard must be had to his background for that belief.

The trial Magistrate was of opinion that the use of the title or description “physician” in the advertisement would constitute an offence if used wilfully and falsely by the defendant; that he genuinely believed that he was entitled so to describe himself; and that, while no person brought up and educated in England could reasonably believe that the course of instruction and examination by the institute and memberships of the guild would authorise him to entitle or describe himself as “a physician”, the defendant, because he was an African brought up in Africa, who had only lived in England for two years, acted reasonably in believing that his course of instruction, examination, diploma and guild membership qualified him so to describe himself. Accordingly the Magistrate held that the prosecution had not discharged the burden of proof which lay on

it.

After reviewing the facts and the law the Kings Bench Division on appeal held that to commit an offence the defendant must have acted willfully and falsely and that it is for the court to decide whether he has done so, and also that he does not commit an offence if he honestly believes that he was within his rights in describing himself as he did. In other words, the case came down to the question whether the defendant was acting bona fide in describing himself as he had because he had an honest belief that he was entitled to do so.

In conclusion, it was held that in considering whether a defendant has acted honestly, the court ought to take into account the presence or absence of reasonable belief. In that case the Magistrate took certain facts into account and gave his reasons for coming to the conclusion that the defendant had acted honestly. The court relied on the ratio decidendi of the judgment in Younqhusband v Luftinci (1951) 2 KB 799 which is that whether a person acted honestly is a question of fact for the Magistrate and whether he acted reasonably or not is not the deciding feature.

In our case here the lst respondent stated:

“I made the statement honestly believing it to be true and I still do because a woman namely Judith Bitwire, with whom the petitioner cohabited and the petitioner’s child died of AIDS in addition to his bodily appearance which bears a strong resemblance to other AIDS victims I have observed in the past.”

My concern here is whether the 1^st respondent in making the statement he is accused of having made falsely and maliciously, did honestly believe it to be true. He gave reasons as to why he honestly believed that the petitioner was a victim of AIDS.

The affidavit of Prof. Rwomushana supported the 1st respondent when he (Prof) stated that in Uganda, research has established that there is a concept of community perceptions, beliefs and observations concerning HIV/AIDS. That research has further revealed that it is common and 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. It is also normal practice for ordinary people to make presumptions that an individual is suffering from AIDS upon observation of skin changes and the individual’s AIDS related bereavement.

It was argued before us that in this age of science and technology it was not reasonable for the 1 s respondent to base his conclusion on his own belief which was not backed up by medical conclusion. Mr. Balikuddembe submitted that 1 respondent’s statement was intended to stigmatise the petitioner so that voters shun him. He further described Prof. Rwomushana’s affidavit as being based on gossip as there was no evidence of any research he had carried out on which he based his opinion.

With due respect to Mr. Balikuddembe’s submission when he criticised Prof. Rwomushana’s affidavit that it was based on gossip as there was no evidence of any research he had carried out on which he based his opinion, I wish to state that from the description of himself which remained unchallenged, I think his (Rwomushana’s) opinion deserves respect. We must accept that this case would have best been handled by oral evidence. This is where the Professor would have been challenged and asked if he had carried out any research, but his affidavit, remained unchallenged. I must state that I have no reason to doubt and question his capacity and knowledge of the diagnosis of AIDS based on community perceptions, beliefs and observation concerning HIV/AIDS considering his involvement in the HIVIAIDS research. Therefore I have no reason to question his affidavit when he stated inter alia.