Medics caught up in thin line of abortion and care for victims

On April 7, 2020,a 54-year-old senior clinician, Fredrick Kato, was arraigned before Lugazi Magistrate’s Court and charged with supplying drugs to procure an abortion.
Prosecution alleged that on February 18, 2020, in Vuluga Village, Buikwe District, with intent to procure a miscarriage, Mr Kato unlawfully administered an injection of noxious drugs to 19-year-old Scovia Nabuzale to abort.
Under Article 143 of the Penal Code Act, one  found guilty of supplying drugs to procure a miscarriage faces up to three years in prison.
Likewise, Nabuzale was charged with one count of procuring a miscarriage contrary to Section 142 of the Penal Code Act.

But in defence, Mr Kato claimed to have provided post-abortion care to Nabuzale before referring her to Lugazi Hospital for an abdominal scan.
“The law doesn’t favour me; I made an oath as a health worker to save the life of my patient but the legal and policy environment in which we operate is not clear and it puts us in a vague state when it comes to providing services such as Post-Abortion Care,” Mr Kato stated.

Equally, in 2013, Rubaga Hospital, a faith-based health facility in Kampala, came under the spotlight after it was sued for alleged negligence of a daughter of a former employee of Kampala Capital City Authority, who died allegedly following an abortion that went wrong.
Ms Betty Nambuya, whose daughter Linda Nambuya died at the hospital, decided to sue the health facility, seeking Shs70m in compensation over alleged negligence.

Legal arguments
Ms Nambuya accused the hospital of having carried out an abortion on her 21-year-old daughter, on the night of February 1, 2012, and that two nurses; Ms Rose Irene Nalubwama and Ms Nansikombi, who were joint respondents in the case, never administered resuscitation fluid to her daughter, leading to her death.

But the hospital in its defence, denied the abortion allegations. It instead claimed the deceased was brought to the health facility by two men while she was in a critical condition after she had procured an abortion from somewhere and was now seeking post abortion care.
Abortion is illegal under the laws of Uganda except in the instance when it is done to save a mother’s life.

Consequently, this has attracted a debate  among health service providers, rights activists and legal practitioners, who often question the specific parameters on what can be termed as procuring an abortion or providing post-abortion care. Many say the unclear legal position results in selective enforcement of the law.
The World Health Organisation defines abortion as the termination of pregnancy from whatever cause before the foetus is capable of etra-uterine life.

 Prof Dan Kaye, the executive director of the Association of Obstetricians and Gynaecologists of Uganda (AOGU), says law enforcement agencies, most especially the police, are ignorant about laws governing abortion. He says this is why most medics found offering post abortion care are harassed and arrested.
“Many police officers don’t know about the law related to abortion. Abortion the way it is, it is stigmatised and is taken as criminal, so even if someone got a spontaneous abortion, which form majority of the abortions, the health worker may be arrested and yet they are just doing their duties,” Prof Kaye says.

“They (police officers) don’t know that post abortion care, which involves assisting a patient who has had an abortion complication, whether the patient has terminated the pregnancy herself or not, by law in Uganda is not a crime,” he adds.
Likewise, Dr John Bosco Mundaka, a gynaecologist at Rubaga Hospital, says security agencies should always carry out their responsibilities with professionalism when faced with such scenarios.

Police blamed
“There is a thin line as when an abortion was induced and actually when someone came in with an induced abortion with complications. As health professionals, we have a professional responsibility to care to anyone who walks in,” Dr Mundaka says.
He adds: “We expect a professional police officer to know the right way of handling information, not publicising it before true evidence is verified.”

However, the spokesperson of the Criminal Investigations Directorate, Mr Charles Twiine, refutes the allegations that some of their officers are ignorant about the laws concerning abortion.
 “You don’t know what the officer has at his desk; you may need to know first of all what he is investigating. He may have the full knowledge that the killing of that particular child was orchestrated by that particular person. So before you think of castigating a police officer, you ought to know what the officer is exactly investigating,” he says.

Mr Elem Ogwal, the deputy Director of Public Prosecutions, explains that doctors under Section 224 of the Penal Code Act are exempted from prosecutions for acts that they do in surgery.
 “We don’t charge doctors who are providing post-abortion care; their idea is that they are going to save somebody who is in a precarious situation and must be treated to health,” Mr Elem says.

The then director general of health services, the late Prof Anthony Mbonye, in July 2016 urged security agencies not to arrest medical personnel offering post abortion care.
 “I call upon the police not to arrest our doctors who happen to assist girls who go to their clinics bleeding after procuring an abortion. The doctors are not criminally liable since they usually come in to help to save a life,” Prof Mbonye said.

Ms Rose Wakikona, the senior programme officer at Center for Health, Human Rights and Development, says the law enforcement officers can’t differentiate between an induced abortion and post-abortion care.
“The challenge is that the intervention used in induced abortion is almost the same as in post abortion care, and the police can’t tell the difference because they are not oriented and secondly, they don’t know that post-abortion care is legal,” Ms Wakikona says.

Medical statistics show that about 85,000 women receive treatment for complications from unsafe abortions and additional 65,000 women experience complications but do not seek medical attention annually.
The mushrooming quack doctors have been blamed for the rising abortions in the country.
Mr Twiine says not everyone who calls themselves doctor is qualified to be one.
“You are a nurse and want to do an operation, or you are a clinical assistant, and you are going to do a major operation. In Uganda, every medical personnel is a referred to as musawo (doctor), so for us, we go for such quacks,” he says.

Likewise, Prof Kaye calls upon medical personnel to still to their professional ethics.
“Medical officers should know their limits like where they cannot manage a patient due to lack of skills, facilities or equipment, they should be able to refer them,” he said.
“The association only helps in the sense that it will want health workers to be ethical. To know the boundaries between what is permitted by the law and what is not permitted,” he added.

Ms Fatima Nakalembe, a community outreach officer working the Community Health Rights Network (COHERINET) in Kawempe, Kampala, warns that post-abortion care should be left to only to qualified medical personnel.
“Sometimes, you find a lab attendant procuring an abortion and yet it’s not in their field,” Ms Nakalembe says.
She says given that the country has gone through two Covid-19 lockdowns, the number of girls and young women coming to them for counselling after undergoing abortion through backdoors has increased to an average of 300 on a monthly basis.
 
Way forward 
Recording of a patient’s history as they come to seek for post abortion care is the way out of this dilemma, according to Prof Kaye and Ms Nakalembe.
Prof. Kaye explains that once a medical officer takes down the history of a patient who has undergone abortion, the medical officer will use the same records to defend himself/ herself in court in case they are accused of aiding abortion.
 “In the absence of any record, anybody can assume something wrong could have happened, but if there is a record, it will protect the health worker when the law catches up with them,” he says.

Prevalence rate
A report by US-based Guttmacher Institute published in 2017 says an estimated 314,300 abortions took place in 2013 in Uganda, which translated to 14 per cent of all pregnancies or a rate of 39 per 1,000 women aged 15-49.

Article 22 (1) of the Constitution states that no person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a competent court in respect of a criminal offence.

However, Article 224 allows medical personnel to carry out an abortion in circumstances where they feel the life of the mother is in danger.

KEY ACTORS SPEAK OUT
Dr John Bosco Mundaka, gynaecologist 
“There is a thin line as when an abortion was induced and actually when someone came in with an induced abortion with complications. As health professionals, we have a professional responsibility to care to anyone who walks in .”
Rose Wakikona, the senior programme officer at Center for Health, Human Rights and Development
“The challenge is that the intervention used in induced abortion is almost the same as in post abortion care, and the police can’t tell the difference because they are not oriented and secondly, they don’t know that post-abortion care is legal.”