Kampala — Uganda's unending battles against deadly infectious diseases like Ebola, COVID-19 and Marburg are among the factors that have prompted the government to swiftly amend its 87 year-old colonial law on public health.
The Public Health (Amendment) Bill, 2021 is in the final stages of passing by parliament as it only awaits assent from President Yoweri Museveni.
It was initially passed on July 19 by Parliament but was sent back to the August House by President Museveni in October due to "sticking issues." On Nov.2 the legislators reconsidered the six clauses that President based upon to return the bill.
Dr. Charles Ayume, the MP Koboko Municipality and Chairperson of the Committee on Health in the 11th Parliament told The Independent on Dec. 8 that Parliament had fixed the issues Museveni was concerned about and sent the Bill back for assent.
Dr. Ayume and others explained to The Independent why the government found it necessary to amend the old public health legislation.
"This law was written in 1935; it was 87 years old and although it was practical in some aspects, it was obsolete in many other areas," he told The Independent, "For instance, the old law put a lot of emphasis on infectious diseases but the new law has acknowledged new threats such as non-communicable diseases."
"We are now dealing with both infectious and non-infectious diseases as well as emerging diseases and all these require a robust response but this must be guided by a human rights approach to legislation," Dr. George Bhoka Didi, the MP for Obongi County in Obongi District and a member of the Committee on Health in Parliament said at a meeting convened by Afya Na Haki in Kampala on Nov.28 to analyse both the old and the amended law.
Martha Isabella Achan, the Legal Advisor, National Action Plan for Health Security in the Ministry of Health who was in charge of amending the old law explained to the meeting why it was time for Uganda to have a new public health law. She cited the challenges the Minister of Health endured during the time when Uganda was struck by the COVID-19 pandemic.
"When the Ministry of Health was drafting the COVID-19 rules, we didn't have very new provisions in there. We used the Public Health Act as it is, thanks to the provisions enacted during the Spanish Flu which were applicable to COVID-19 (mask-wearing, isolation, quarantine)."
"The only limitation with implementing the public law is that we could not arrest someone and take them to prison because that would worsen the public health situation. The fining of offenders of the Standard Operating Procedures was also not that practical because the maximum fine in the current Public Health Act is Shs 2000. So we thought it is better to amend the law."
"When the process (of amending the law) began in 2012, we didn't have certain structures in the government. We, for instance, didn't have the Director General for Health Services role; we had the Chief Medical Officer. That had to be amended. We also did not have decentralization introduced in the current Public Health Act; that had to be incorporated."
Achan also noted that since Uganda is a signatory to the International Health Regulations 2005, Uganda had the obligation to domesticate these regulations into the Public Health Act.
Still, Achan noted that there was no need to repeal the entire law since some provisions in the old law "are still valuable."
Nimrod Muhumuza, a PhD fellow at Afya Na Haki, a Kampala-based health, human rights and sexual reproductive health think tank noted during the same public forum that since the Public Health Act, Cap 281 was enacted in 1935; it had become "archaic, anachronistic, and no longer fit at dealing with today's issues."
"It also had a narrow focus because it was enacted after the Spanish Flu pandemic of 1914-1919; so it raises issues of whether it facilitates preparedness for another looming pandemic. We have new public health threats; non-communicable diseases are on the rise," he said.
Muhumuza said the need for new public health legislation is also informed by what he called "a sexual and reproductive health rights crisis in the country." "These new threats, away from the typical pandemic or infectious disease threats, necessitated looking at the legislation to determine whether it is fit for purpose," he said.
The amended legislation on public health now provides for the repeal of obsolete provisions and revises the fines for offences committed under the Act. Among the hotly contested clauses during debate on the Bill was the Health Minister's insistence that vaccination be compulsory for all Ugandans.
Dr. Jane Ruth Aceng had proposed that in the event of an occurrence or outbreak of any disease that requires vaccination or revaccination for residents, a Local Government council shall issue a public notice requesting all persons to undergo inspection, vaccination and revaccination.
She proposed that a person who fails or declines to comply with the requirement commits an offence and is liable on conviction to a fine not exceeding 200 currency points which is equivalent to Shs 4 million. The bill also proposed the same penalty for a parent or guardian who fails to take their baby for vaccination within 12 months from birth.
Museveni's concerns
It appears that particular clause will hold since it was not among the concerns upon which the President based to return the bill for reconsideration. The Independent understands that among the clauses that Museveni was uncomfortable with was the interchangeable use of the words vaccination and immunization.
While the term immunization (physiological event that takes place for one to acquire immunity) and vaccination (the act of giving a vaccine) are used interchangeably, President Museveni suggested that the MPs explicitly use the term vaccination in the amended law.
President Museveni further recommended that the powers of the Director General of Health Services should be restricted to assigning a vaccination and not appointing one as mentioned in the Bill. He argued that the Director General of Health Services has no powers to appoint staff under the law.
The Committee on Health had also passed a clause in which the destruction of infectious beddings, clothes and articles would be done upon authorization by the Local Council to which the President objected, instead preferring the Medical Officer have that authority.
The committee also agreed with another recommendation to replace "Minister responsible for Agriculture" with "Minister responsible for animal and plant health" to cater for diseases originating from animals and plants.
"This was done for clarity to specifically impose the duty of enacting the rules on the minister responsible for animal health since the rules envisaged are intended to prevent the spread from any animal or the carcass, product from any animal or any plant, part of plant or product," Ayume said.
Missed opportunity?
But, while the newly tweaked law awaits President Museveni's signature, some civil society organisations working in the area of public health say the country could have missed a big opportunity to have a law that respects human rights and public accountability norms.
According to Afya Na Haki's report, "Dealing with 87 Year-old Public Health Legislation in Contemporary Times: A critical review of Uganda's Public Health Act and Public Health (Amendment Act," which was published in August, this year, "COVID-19 demonstrated the central role public health legislation plays in public health systems."
This is why, Muhumuza explained, the amendment of legislation on public health was a huge opportunity to subject public health measures to constitutional and human rights norms as well as regulations and accountability measures.
"You cannot have an amendment Act provide for every single thing that you feel is missing. However, we are of the view that the implementation of public health measures and the mitigation of public health threats ought to be subjected to constitutional and human rights standards," said Muhumuza, a fellow at Afya Na Haki.
"During the COVID-19 pandemic, the militarization of the public health response, in our view, did not pass the Constitutional norms," Muhumuza said, "You had people who were shot as they tried to go to hospitals as they tried to access essential medicines."
"For the pregnant women and teenagers that were shot because they stayed out too late during lockdowns; where do they go and how do they get compensation? That was not addressed (in the amended law)."
"It is important to have these roles legally prescribed; they have to be codified in the law. It is important for issues of accountability because who do you go to for redress when an RDC refuses to issue a travel permit to a pregnant woman who later dies in childbirth." Muhumuza said public health and human rights are not mutually exclusive as some people believe.
The civil society activists also noted that the current public health law did not envisage the role of the private sector in combating threats to public health yet, today, the Ugandan economy, including the health sector, has been liberalized to allow private actors considerable influence over the design and implementation of public health interventions.
Half of Uganda's health system, for example, is served by the government and the other half by the private sector. During the COVID-19 pandemic, government relied heavily on private hospitals to ease the pressure on the public health system.
Muhumuza explained that while enacting laws or modifications to such legislation, private sector participation in legal and policy review, formulation and implementation is critical.
He further argued that the new law does not provide "synergies between the science and other areas such as human health and environmental health."
"It is clear that public health emergencies spill over and impact on a number of sectors," he said, "As such, legislating for public health should move beyond the traditional parameters of public health to cover sectors such as information and communications technology, sexual reproductive and health rights, non-communicable diseases, and compulsory vaccinations of children and the vulnerable, among others."
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Going forward, Muhumuza said, the definition of public health should be broadened to cover all the current and future public health crises.
"In this respect, we recommend that Uganda adopts the WHO definition of public health which defines it as "the art and science of preventing disease, prolonging life and promoting health through the organised efforts of society."
"The law should include express provisions on the interdependence between the right to health and other social, economic and political rights in implementing public health measures."
"The law should also recognise and establish the mandate and the roles of key stakeholders such as Civil Society Organisations (CSOs) and the private sector."
Muhumuza added that the law should also clearly spell out the main custodian, administrative structure and hierarchy of the key authorities under the Act as this helps to define responsible institutions for accountability.
"One of the glaring omissions of the Public Health Act is the absence of a link or referral to human rights principles and standards within its provisions. The Amendment Act has not addressed this deficiency," he said.
He said although the amended law commendably makes provision for emerging issues and diseases such as non-communicable diseases like cardiovascular diseases, diabetes, cancers and pulmonary conditions, the omission of Sexual and Reproductive Health Rights (SRHR) undermines a significant pillar of public health efforts in contemporary Uganda.
"This means that the obligation to subject any public health interventions emanating from the Act to Uganda's national, regional and international human rights obligations is missing."
However, in response, MP George Bhoka Didi noted that overloading the law with content would make its implementation a big challenge.
"Let us appreciate that the law provides us with a skeleton and it has to be supported by appropriate policies and the policies have to be supported regulations," Bhoka Didi said.
Dr. Ayume, the chairperson of the Committee on Health told The Independent that the fact that when the President returned the Public Health (Amendment) Bill, 2021 to Parliament, his only objections were not about content means that his team did a 'good job.'
"Many times when the President returns a bill to Parliament, you have to split hairs to fix the issues that he finds uncomfortable. With this particular one, it was tweaking a few things."
Dr. Ayume told The Independent that he expects President Museveni to assent to the Public Health (Amendment) Bill, 2021 "very soon."
