Preamble

Cefroht carries out different projects to inform its interventions across its programs and thematic areas, which encompass scientific research, desk reviews, as well as legal and policy framework analysis.

The occupational health and safety implications of COVID-19 for workers in Uganda

Article by Obbo Geoffrey Derrick (Program manager Strategic litigation at Cefroht )

Introduction

The COVID-19 virus, which is reported to have originated in Chinese, has spread to virtually every country in the world, and Uganda is no exception. This has prompted the Ugandan government to adopt several measures to curb the spread of this virulent pandemic. These measures include the temporary suspension of all services and closure of workplaces the government deems non-essential. While the lockdown has stopped the most economic activity, essential service employees, e.g. medical service personnel, factory workers, miner workers, press and media service staff, members of the police and army, private security companies, electricity, and water service staff among others, continue to work during the lockdown. Consequently, there are people who continue to traverse public spaces and workplaces, notwithstanding the risk of the spread of COVID-19, raising health and safety concerns. While it is probable that lockdown measures will soon be eased, allowing for the resumption of economic activities and the return of an increased number of people to work, this is likely to occur before the virus is completely eradicated or even effectively contained, which will potentially expose workers to the risk of COVID-19 infection.
In the light of the above, careful attention needs to be applied to the occupational health and safety concerns, needs, and responses Uganda should implement to avert an upsurge in COVID-19 infections. What measures should workplaces adopt to safeguard workers? Who between the employer and employee bears the duty of protection? What normative health and safety standards should workplaces adhere to? Do Uganda’s laws make adequate provision to ensure that workers are protected from the risk of contracting this pandemic? While these questions are not exhaustive, this article will endeavor to address some of them succinctly.

The health and safety implications of COVID-19 for workplaces in Uganda

The Constitution of the Republic of Uganda171 confers a blanket right to all workers to work in safe and healthy conditions. The COVID-19 virus threatens this right: many healthcare workers – not just medical personnel such as doctors and nurses, but also hospital cleaners, caterers, etc. – have a greater risk of contracting the virus as a result of their exposure to infected patients and contaminated surfaces and materials within testing and treatment facilities. This has prompted health personnel in some areas of Uganda to refuse to assist patients suspected or infected with COVID-19 due to a lack of personal protective equipment or inadequate training pandemic protocols.

The threat of infection while at work is not restricted to healthcare workers: people who work in markets, factories, and the media are also at risk, on account of their fraternization with other persons and the particularly infectious nature of this pandemic. Uganda’s Occupational Safety and Health Act of 2006 (OSH) is the main law providing a framework for the safety of workers whilst in the workplace. While this Act does not make specific provision for the protection of workers from infectious diseases, an entire reading of the Act does reveal that this is a duty borne by employers. Section 13 of the Act imposes a duty on employers to protect, at their own cost, their employees from the dangerous aspects of their professional undertakings. The section further provides that this duty includes the provision of as reasonably practicable a safe working environment as possible. Section 46 of the Act imposes a further duty on employers to maintain a clean workplace. The implication of this in the time of the COVID-19 pandemic is that employers have a duty to regularly disinfect workplaces, ensure there are sufficient soap and handwashing facilities and provide personal protective equipment such as face masks and gloves (and all of this at their own expense), to prevent the spread of the virus within the workplace and among employees. This duty is discharged when an employer takes all reasonable, practicable measures to protect employees from infection.

Section 47 of the Act requires employers not to overcrowd workplaces to minimize workers’ exposure to health risks. Therefore, whilst the COVID-19 pandemic remains an on-going threat, factory-, mining-, agricultural-, hospital-, healthcare-, -employees among others, should ensure that their workplaces are not overcrowded to avoid exposing workers to the risk of infection. Failure by employers to meet these standards constitutes a breach of the Act.
A reading of the Occupational Safety and Health Act makes it possible to conclude that while the provisions do not specifically require employers to protect their workers from COVID-19 and other infectious diseases, employers do bear a duty of care in respect of their employees, which requires that they take reasonably practical measures to generally protect employees from infection.

The International Labour Organization (ILO) has released an occupational health and safety guide specifically developed for the COVID-19 pandemic. ILO Convention No. 155, like Uganda’s OSH, highlights employers’ duty to take all practicable and protective measures to minimize the occupational risks of contracting the COVID virus. The ILO also imposes a duty on employers to provide their workers with emergency funds and notify labor inspectors in case of occupational infection. This is an important duty imposed on the employer, as it assists inspectors to assess the level of risk of infection at a workplace, draw up measures to protect persons at a particular type of workplace, and impose penalties on employers who fail to take adequate measures to protect their employees from the virus.

The ILO Convention, like Uganda’s OSH Act, also confers upon workers the right to remove themselves from situations where they feel they could be at risk of contracting the virus. The duty to prevent the spread of the Coronavirus within the workplace is imposed not only on the employer but also on employees, who have a duty to follow the operational guidelines put in place to prevent the spread of infection in the workplace.

The ILO acknowledges that it does not yet have comprehensive provisions on the protection of workers from infectious diseases or what it terms “biological hazards.” As with Uganda’s OSH Act, the ILO Convention makes use of general provisions to protect workers from infectious diseases. This suggests that the time is opportune for more concerted action, in the form of a convention and/or targeted laws to protect workers from Infectious diseases and biological hazards. However, even before the enactment of such measures, it is clear that employers already bear a duty to take reasonable and practicable steps to protect employees from the risk of contracting the coronavirus as well as to inform them of likely hazards and risks presented by their work and/or workplace.

Adherence to the provisions of the OSH Act, the ILO guidelines and Uganda’s Constitutional right to work in a safe and healthy environment, would go a long way towards safeguarding workers against the risk of contracting the Coronavirus.
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Infants behind bars: an analysis of the rights of children born and living in prisons

Article by Patience Gwennie (Human Rights lawyer with Cefroht )

A child born and living in prison is strange to the ear however for many of these little ones, prison is the only world they know and prison is home. Female prisons worldwide not only accommodate women but their children too and this situation arises in two ways; either a pregnant woman was arrested and gave birth in prison, or a nursing mother is arrested with her baby. Mothers held on remand or sentenced to imprisonment very often prefer and choose to keep their babies and small children with them while in custody.

These innocent infants residing in prisons are usually invisible to the legal and prison systems, the prison walls become the only world they know and they often become victims of the frequently deficient, overcrowded, and harsh prison systems. Their mental health is also affected given the abusive language amongst inmates, hate, and resistance towards the prison officials and the general traumatic experience that comes with imprisonment.

The Right to liberty v The Right to parental love and care

It is undeniable that the enjoyment of basic and fundamental human rights of children that accompany their mothers in prisons is hardly fulfilled but oftentimes these children are forced to stay in the absence of other or better options, for example, having no relatives or guardians that are able to look after them back home.

Despite the fact that prison is not an environment to raise a child, some scholars have argued that the first two years of a baby’s life are critical for the mother-child bond, and babies bereft of that bond are more likely to display troubling behavior later on.  In June 2000, the European Parliamentary Assembly adopted Recommendation 1469 (2000) on Mothers and babies in prison, in which it recognizes the adverse effects of imprisonment of mothers on babies. It recognized that early maternal separation causes long-term difficulties, including impairment of attachments to others, emotional maladjustment, and personality disorders and that the development of young babies is retarded by restricted access to varied stimuli in closed prisons.

According to our national laws, Section 59 of the Prisons Act of 2006 provides that a female prisoner may be admitted into prison custody with her infant. The infant shall be supplied with clothing and other necessities of life by the state until the infant attains the age of 18 months in which case the officer in charge shall, on being satisfied that there is a relative or friend able and willing to support it, cause the infant to be handed over to the relative or friend.

Research however goes on to show that many of these children continue to live in prison to the age of 5 or 7 or more depending on the circumstances wherein there is no other alternative. Bearing in mind that international instruments and national legislation are binding upon Uganda, many questions run through my mind to which I ask; Has the government actually taken note of the fact children are living in prison? Have any measures been taken to protect the little ones from the traumatic pain and psychological torture that comes with being confined to such an atmosphere? Do these children even have access to education or should they wait for their mothers’ sentences to come to an end and finally go to school? When they return to the community, does society accept them or can they even adjust to the alien outside world?

Nutrition and General Welfare

Statistically, recent reports show that there are 249 prisons countrywide, 15 of which are exclusively female prisons holding approximately 2,468 women and 263 children detained alongside their mothers. Issues of feeding and general welfare including the congestion levels and overcrowding situation in Uganda prisons are, to say the least heartbreaking. Despite the need for proper nutritious food, the children have to eat posho and beans daily just like the inmates. Where the prisons are congested as is common to almost all Ugandan prisons, the children share cells with their mothers and other inmates.

One can only imagine the vulgarity, abusive language, and company they are exposed to at a tender age. Section 5 of the Children Act places a duty on a parent or guardian or person having custody of a child to provide and fulfill the child’s right to all basic needs including; an adequate diet, clothing, shelter, immunization, medical attention, and education. For children in prisons, this duty is therefore to be borne by the state but has the state borne it anyway?

My plea is that no child should ever live in prison and where a pregnant woman or nursing mother is found against the law, states should strive to give her a non-custodial sentence for the sake of the child. In 2013, Uganda enacted the Constitutional (Sentencing Guidelines for Courts of Judicature) (Practice) Directions which recommend that where the appropriate sentence is clearly non-custodial in the case of a primary caregiver to a child, the court shall determine the sentence bearing in mind the interests of the child and where there is a range of sentences available to the court, the court shall use the welfare principle as provided for under section 3 of the Children Act. Since this law came into place, there is still no uniformity in the sentencing by judicial officers as a number of them do not consider the factor of being a primary caregiver as a mitigating factor and some women have been given a custodial sentence for petty crimes. There is therefore an urgent need to awaken judicial officers to the provisions of the law in regards to sentencing pregnant women and primary caregivers to children. Where non-custodial sentences can be given, so be it! The rights of innocent children must be given priority.