Language Switcher

Courts Archives: High Court

Patricias Asero Ochieng and 2 others v. the Attorney-general & Anotherke

Year: 2012 (Date of decision: 20 April, 2012)

Forum, Country: High Court; Kenya

Standards, Rights: Human dignity; Right to health; Right to life

Summary Background: Case centres on a challenge to the constitutionality of the Anti-Counterfeit Act 2008, due to the negative impact of the Act on access to generic HIV/AIDS medication. Sections of the Act appeared to inappropriately conflate generic drugs with counterfeit medicine. The application of these sections would result in civil and criminal penalties for generic medicine manufacturers and thus harshly restrict access to affordable medicine in Kenya. This lack of access in turn would impair the right to life, health and human dignity.

Holding: The Court, in agreement with the impact assessment of the Act as outlined by the petitioner, held that the sections in question were unconstitutional and concluded that it is incumbent on the state to reconsider the provisions of section 2 of the Anti-Counterfeit Act [paras. 87 (b)(v) and 88].

The Court held that the right to life, human dignity and health as protected by the Constitution encompasses access to affordable and essential drugs and medicines including generic drugs and medicines [para. 87(a)].

It further held that fundamental rights (for instance the rights to life, human dignity and health) take precedence over intellectual property rights [para. 86].

The Court in its decision referenced the ICESCR as well as General Comment No. 14 on the Right to Health and stipulated that the State’s failure to put in place conditions in which its citizens can lead a healthy life means that it has violated, or is likely to violate, their right to health [paras. 58-59 and 61-63].

Additional Comments: This case examines State’s obligations in the context of ESC rights, particularly the duty to respect and protect.

Link to Full Case:

Continue Reading

Western Cape Forum for Intellectual Disability v. Government of the Republic of South Africa, Government of the Province of Western Cape, Case no: 18678/2007

Year: 2010 (Date of Decision: 11 November, 2010)

Forum, Country: High Court; South Africa

Standards, Rights: Reasonableness; Non-discrimination and equal protection of the law; Human dignity; Negligence; Right to education; Persons with disabilities

SummaryBackground: This case concerned the rights of severely and profoundly intellectually disabled children in the Western Cape and allegations that their educational needs were not being adequately met by the South African national and Western Cape Governments. Children with such disabilities were unable to receive care except at limited places in centres run by NGOs, which were insufficient in number. Children who could not obtain access to these centres received no education at all. It was contended that State educational provisions made for these children were very much reduced as compared to other children and any provisions made were inadequate to cater to the educational needs of the affected children.

Holding: The Court held that the respondents (the South African and West Cape Governments) had failed to take reasonable measures to make provision for the educational needs of severely and profoundly intellectually disabled children in the Western Cape, in breach of the rights of children to a basic education, protection from neglect or degradation, equality, human dignity [para. 52 (1)].

On the right to education, the Court found that the State had violated this right, both in respect of the positive dimension of the right, by failing to provide the affected children with a basic education and also in respect of the negative dimension of the right, by not admitting the children concerned to special or other schools [para. 45]. The Court found no justification for this violation. The State failed to establish that their policies were reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom [para. 42].

The Court additionally held that the children’s rights to dignity had been violated as the discrimination they have faced had in effect caused them to be marginalized and ignored [para. 46]. The failure to provide the children with education placed them at the risk of neglect, as it meant that they often had to be educated by parents who did not have the skills to do so and are already under strain. The inability of the children to develop to their own potential, however limited that may be, is a form of degradation. This unjustifiably violated their right of protection from neglect and degradation [paras. 46 and 47].

In light of these findings, the judgement required the State to take reasonable measures (including interim steps) to ensure access to education for every child in the Western Cape who was severely and profoundly intellectually disabled, provide necessary funds for special care centres and transportation of the children to these centres and to develop a plan of action to remedy the aforementioned violations [para. 52].

Additional Comments: The national Government chose not to appeal this decision.

Link to Full Case:

Continue Reading

Pape v. Cumbria CC, [1992] I.C.R. 132

Year: 1991 (Date of Decision: 23 May 1991)

Forum, Country: High Court (Queens Bench Division), United Kingdom of Great Britain and Northern Ireland

Standards, Rights: Negligence; Right to decent work; Right to health

Summary Background: The plaintiff worked for the defendants as a cleaner. She was not warned of the dangers arising from frequent use of detergents and other cleaning materials and she received no instructions from the defendants to wear the gloves that were provided.

As a result of her hands coming into contact with cleaning agents, she developed dermatitis on her hands and wrists in 1982. The condition spread to other parts of her body and by 1985 she had developed erythroderma.

She received medical treatment and after periods of sick leave she had to give up work in November 1986.

Holding: The Court held that the defendants had failed in their duty to warn the plaintiff of the dangers of handling chemical materials with unprotected hands and to instruct her in the need to wear rubber gloves [p. 138]. Therefore, the plaintiffs were liable in negligence to pay the plaintiff damages assessed at £22,000 including general damages for pain, suffering, and loss of amenity; special damages; damages for future loss of earnings; damages for future outlays and losses other than earnings [p. 139].

Link to Full Case: (requires subscription to Westlaw)

Continue Reading