Member Article

Ten years ago, Uganda’s National Disaster Preparedness and Management Policy predicted that “an influenza pandemic may occur when a new influenza virus appears against which the human population has no immunity. With the increase in global transport, as well as urbanization and overcrowded conditions in some areas, epidemics due to a new influenza virus are likely to take hold around the world, and become a pandemic faster than before”.

Below, we assess Uganda’s legal response to COVID-19 and makes some recommendations.

Uganda’s COVID-19 control legal measures were announced by the President then published as legal instruments by the Minister of Health under the Public Health Act a few days later (see our articles on legal measureshereandhere). Along the way, there have been changes in terminology between the President’s speech and the legal instruments, some matters in the speech have been left out of the instruments, and new matters have been introduced. While the Minister of Health certainly has powers to introduce new matters, it is the omissions that are of concern, especially with incidents of overly enthusiastic enforcement by ill-disciplined elements in the security forces. It is only the measures in the legal instruments that have force of law.

COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.

No information provided herein may in any way be construed as legal advice from ENSafrica and/or any of its personnel. Professional advice must be sought from ENSafrica before any action is taken based on the information provided herein, and consent must be obtained from ENSafrica before the information provided herein is reproduced in any way. ENSafrica disclaims any responsibility for positions taken without due consultation and/or information reproduced without due consent, and no person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against ENSafrica and/or any of its personnel. Any values, such as currency (and their indicators), and/or dates provided herein are indicative and for information purposes only, and ENSafrica does not warrant the correctness, completeness or accuracy of the information provided herein in any way.

There have also been gaps between the announcements by the President and the publication of the legal instruments, leading to premature enforcement, the arrests of persons for violations of matters that have not yet legally become an offence. The publication and dissemination of the supporting legal instruments must be sped up.

Key definitions in COVID-19 control measures such as COVID-19 itself, lockdown, and social distancing have not been made. Standard operating procedures for use in supermarkets and markets are yet to be announced by the Ministry of Health.

In addition, the lack of a definition of social distancing by number of people in a gathering and the required distance to be kept, has resulted in the quick and indiscriminate arrests of Ugandans, especially joggers. The response by government officials to these keep fit efforts has been uncoordinated.

Some COVID-19 legal instruments use the expression “a person who is suffering from COVID-19”, in a context where a medical test will not have been done and given the limitations on testing, is unlikely to be done. For instance, there is an obligation placed on landlords, employers and heads of households who become aware that any person residing in their premises or in their employment is suffering from COVID-19, to notify a medical officer or take them for treatment. Such provisions should have used language relating to a show of symptoms giving rise to reason to suspect a COVID-19 case.

A new and disturbing requirement for further 14-day quarantines for persons in quarantine facilities where a COVID-19 case is confirmed, was announced by the Minister of Health on 2 April 2020. While this is arguably mandated under the current regulations, the reasonableness of this requirement is suspect and must be very carefully considered, as it constrains the fundamental human right of personal liberty. A rethink of the institutional quarantine facilities to enable unique, individual isolation is required.

The legal instruments create offences that are only punishable by a jail term. It would be unfortunate to fill our jails with such offenders at the time that we should be reducing population concentrations, even in prisons, as much as possible. It is hoped that should any offenders be tried and convicted, the judicial officer will exercise discretion to impose a fine or community service order instead.

One area where the eagles fear to tread is an attempt to sanction the flow of “fake COVID-19 news”. Some countries have designated official sources of COVID-19 information and banned all else. Uganda will be constrained from going in this direction by a decision from our Supreme Court that all speech is deserving of constitutional protection especially when a person’s views are opposed or objected to as false or wrong.

So far, Uganda has only categorised COVID-19 as an infectious disease under the Public Health Act. It is yet to legally declare it a formidable epidemic disease under the Act. Such declaration will open the door for even greater and seemingly unlimited powers to the Minister of Health to take necessary control measures to combat COVID-19. Admittedly, these powers have never been invoked since 1935 when the Public Health Act came into force and are therefore untested.

As it is, there are pressing calls from as high as the Chief Justice, the Speaker and some Members of Parliament to declare a state of emergency.

No doubt, we will learn from other countries and continue to take the solid legal action required to combat this disease. Some areas that urgently need to be addressed include ensuring protection of the non-derogable rights such as the right to a fair hearing by providing a solution for the courts (and lawyers) to operate safely; addressing landlord and tenant relations; harnessing IT to ensure safe operations of key Government offices like Uganda Registration Services Bureau; providing for recruitment of volunteers among others.

For now, on the legal front, Uganda’s efforts to combat COVID-19 are commendable. The response has been solid and measured. The positive contribution of the legal fraternity working collaboratively with others is required to keep the effort on track.

Phillip KarugabaHead of ENSafrica Uganda[email protected]+256 772 785 332

Rehema Nakirya SsemyaloPartner Uganda[email protected]+256 772 506 802

Tracy KakongiAssociate Uganda[email protected]+256 784 343 336