Rosemary Namubiru v. Uganda

Appellant Rosemary Namubiru was charged with and convicted of committing a negligent act likely to spread infection of disease, contrary to Section 171 of Uganda’s Penal Code Act. Appellant worked as a nurse at Victoria Clinic, a public hospital in Kampala.

On 7 January 2013, appellant began intravenous administration of antibiotics to two-year-old Mathew Mushabe. In the process of inserting the cannular into the hand of Mathew, the appellant mistakenly pricked her own index finger and drew blood. “She put the cannular back on the tray and administered treatment on her injured finger. She thereafter removed the cannular from the tray and inserted it into the vein of Mathew.”

The appellant was asked by the mother of the patient why she was re-using a contaminated cannular, but she dismissed the inquiry. Later in the day, the mother of the patient reported the incident to the management of the clinic. Appellant was asked to take a blood test for HIV, and it was discovered that she was HIV positive. Appellant had known that she was HIV positive at the time of the incident.

Following trial by the Buganda Road Court, Appellant appealed her conviction to the High Court of Uganda.

The Court dismissed appellant’s claim that reversible error stemmed from being improperly initially charged with separate counts of ‘unlawful’ and ‘negligent’ action. The Court observed that this defense was improperly withheld in the initial proceeding until the final stage of trial, but declined to dismiss upon these procedural grounds. The Court found no evidence that the duplicated charges prejudiced any part of the prosecution, nor that it unduly inhibited defense’s preparation.

The Court also dismissed appellant’s claim that evidence against her was improperly based on the testimony of a single witness. Appellant argued that since the only witness (the mother of Mathew Mushabe) was inconsistent on a minor point of testimony, the finder of fact could not reasonably convict on the basis of her testimony. The Court reviewed Ugandan case law on the accepted standards for review in cases relying on testimony of a single witness. The Court, however, found no evidence suggesting that the core testimony was compromised. The Court also found sufficient evidence of criminal negligence, given the established professional standards of medicine.

Finally, however, the Court reversed the ruling of the trial court, and reduced appellant’s sentence to time already served, totaling over five months. The Court cited the appellant’s age of 64 years old and her HIV-positive status; the fact that Mathew Mushabe did not contract HIV; and the policy need for courts to impose a greater degree of legal protection upon medical professionals.

“The appellant was a professional and so is presumed to know [the professional procedure and standards of nursing]. She did not follow that procedure . . . . She told the court she had more than one cannula. The safe thing even from a non professional person would be to immediately throw away the maligned cannula and get a fresh one. That was what a prudent and reasonable person ought to have done.” Page 14.

“It is argued that the appellant was an elderly person aged 64 years. She was sickly and as was noted by the court, HIV positive. She was a mother and grandmother. She spent 5 months on remand. While she was found guilty of exposing the 2 years (sic) old child to infection with HIV, happily the child remained negative. As noted by the court, there was no intention to harm the baby. All these mitigating matters negatived a custodial let alone a long custodial sentence of three years.” Page 17.