The Gulu High Court Judge, Stephen Mubiru has quashed two years jail term that was handed to Sylvia Komuhangi for allegedly injecting a baby with HIV-infected blood.
On Thursday, On July 4, 2019, Kitgum Chief Magistrate, Hussein Nasur Ntalo, convicted Ms Komuhangi of offence of committing a negligent act likely to spread disease contrary to Section 171 of the Penal Code Act of the Republic of Uganda and sentenced her to two years in prison.
Through her layers led by Inaccurate Owomugisha of Uganda Network on Ethics, Law and HIV/AIDS (UGANET), Komuhangi appealed against lower courts’ ruling.
The judge quashed the conviction, saying that forensic tests showed that DNA traces found on the cloth that Komuhangi used to wrap the baby belonged to her but did not contain any blood.
“I could not find any connection between her piece of cloth and the blood said to have been injected into the baby because the swelling found on the baby could have been a mere rash,” he ruled.
“The conviction is quashed and the sentence is set aside, the appellant is set free unconditionally unless she is held on some other lawful reasons,” he said.
Prosecution averred that at about 9 P.M. on December 26, 2018, the 32-year-old secondary school teacher Komuhangi carried the alleged victim away from her babysitter to the bedroom and then returned later, with the baby crying. The mother, Eunice Lakot, examined her baby and found swellings in both armpits.
She took the baby to Kitgum hospital for diagnosis, where doctors reportedly confirmed that the swellings were caused by injections. Consequently, a medical professional tested Komuhangi for HIV, and she was found positive. The child was given Post-exposure Prophylaxis (PEP), an antiretroviral medication that prevents infection to anyone exposed to HIV during the first ninety-six hours. Subsequently, Komuhangi was arrested.
Narrating her ordeal, Komuhangi said she had traveled to Uganda’s northern region from the Kampala for a tour in late December 2018, and spent several nights at a friend’s house in Kitgum Town. After a visit to the Kidepo Valley National Park, she returned to Kitgum Town to find her friend’s home surrounded by local authorities.
“We were arrested there and then,” she narrates. “I spent two weeks in custody asking to be released on bond, but they could not even bond me out, saying I was a non-resident. When we went to court, I asked for bail, and they refused. They refused to give me bail until they convicted me.”
On Kumuhangi’s release, Lakot, the mother of the baby, shared that the most recent results showed that her baby is HIV negative. Lakot, nevertheless, said she was not happy with the High Court’s ruling, but the baby’s maternal grandmother, Rose Oryem, said they would not challenge court’s decision.
Komuhangi is not the first convict as a result of those laws. In 2014, a 64-year-old nurse in Kampala, Rosemary Namubiru, was accused of injecting a toddler with her HIV-positive blood in the process of administering treatment.
Owomugisha, who is the UGANET head of advocacy and strategic litigation, says cases that involve HIV are not subjected to sufficient rigor, with sentiments often carrying the day at the expense of proper investigation, prosecution, and objectivity in court.
“Most convictions are based on unfair, inaccurate and overblown facts,” she says. “The media usually joins to hype up stories [and] this sensationalism crowds out good judgment, resulting in a miscarriage of justice.”
Another of Komuhangi’s lawyers, Louis Odong, said the ruling sent a message to people who criminalize HIV victims not to engage in the practice while Owomugisha added that the court’s decisions had restored “dignity to Sylvia Komuhangi and many like her.”
“We commend the court decision for setting an example that if courts scratched below the surface news, they would realize HIV positive status alone does not equate to malicious intent,” she said.
The Executive Director of UGANET, Dora Kiconco Musinguzi, said the criminalisation of people living with HIV, not only undermines the HIV response by compromising public health and human rights but that there is also no evidence of benefit from those laws.
“As a community of HIV actors, we remind the nation that we cannot end AIDS, or reach epidemic control with HIV criminalization coupled with heightened HIV discrimination. Human rights and dignity need to be accorded to all. We need to stop stigma and end HIV criminalization,” she stated.
Kiconco said that in light of court’s decision, the community of people living with HIV and organisations that UGANET works with recommend that the Constitutional Court should fast track the hearing of Petition No. 24 of 2016, through which their issues were presented to the country’s second-highest judicial organ for interpretation.
Kiconco also called on Parliament to re-visit the HIV criminal laws with a view to law reform as “some of the laws are unfair, vague and will encourage trumped-up charges often.” She said the law had been diverted from its original intent to create an environment where HIV is criminalized and where complications arise for persons living with HIV.