Unpacking prospects and challenges of litigating the right to health in Uganda
By Nakibuuka Noor Musisi
Since time in memorial, maternal Mortality has continued to be a daunting concern in the health sector of Uganda. Today, the country faces over 438 maternal deaths per 100,000 live births (UDHS 2011). This statistics has been rounded off to 16 women loosing life on a daily basis, and indeed this can be summarized into one mini bus crashing every day. This number is way high and with the 500 days left to end of Millennium development goals, Uganda is most likely not going to achieve MDG 5.
Regardless of all efforts that have been made to ensure that such rates are curbed, there has been one missing link, which is the use of the judiciary. It was not until 2011 that Uganda saw a move towards litigating the right to health. This came with CEHURD’s intervention of filing a case against the government for non provision of basic maternal health commodities in public health facilities leading to death of expectant mothers.
The filing of the case has since seen a number of civil society organizations working in the area of health come together under the umbrella of coalition to stop maternal mortality to advocate for the right. For the first time in Uganda, a communication platform was formed. Today, the coalition has over 60 organizations ranging from different walks of life including health, human rights, women’s organizations, HIV/AIDS and community-based organizations and it fights to end the crisis of preventable maternal mortality in Uganda through policy, advocacy and grassroots mobilization. It has been very instrumental in not only supporting the case but also ensuring that the right is realized.
The formation of the coalition has always seen a big turn at each court hearing. Despite the court’s ruling that they do not have the mandate to hear and determine the case (political question doctrine), the spirit of the organizations and communities in turning up to court has not dwindled. This is evident enough to show the sanguinity communities still hold in courts.
A lot of advocacy has evolved both at the national and community levels. This resulted into filing of yet another case, Civil suit No. 111 of 2012, CEHURD Vs. Nakaseke District local government seeking for declarations on violation of the right to health, rights of the child, family and freedom from cruel, inhuman and degrading treatment.
The case relates to the death of Nanteza Irene, a mother that stayed in the health facility for hours without according her a caesarean operation until she died. The filing of the case has seen vibrant changes in provision of services at the health centre.
Increased media coverage, increment in health budget, passing of a resolution by the Honorable members of parliament on maternal health, formation of a legal advisory experts group, among others has been some of the achievements prompted with litigating the right to health.
Other cases that have been filed out of the outreaches and advocacy include civil suit No. 212 of 2013, a case of the lost baby at Mulago national referral hospital and access to patient information, civil suit No. 172 of 2014 a case on right to health and right to a clean and healthy environment, Complaint lodged against Dr. Bingi Christopher for his un ethical behavior towards an expectant mother, and complaint lodged with Uganda Human rights Commission for Violating right to health as a result of UMEME’s load shedding of public health facilities.
The prospects have not gone without challenges. Delayed court response when cases are filed is one challenge that has and is still delaying the realization of the right to health. The Attorney General and other defendants also play a role in delaying justice. One can actually conclude that they many times do not take the cases seriously.
This is not to mention the challenges met with media sensitization and ensuring that they understand the argot on justiciability of right to health. Communities expect a lot from us yet helping them understand the importance of asking and keeping information as well as appearing as witnesses in court is a problem.
Therefore despite the many prospects associated with litigating right to health, especially in ensuring that provisions of the constitution like article 45 and 8A are tested where there is no express provisions on rights like health in the Constitution, litigation has been faced with many challenges.
The delays and continued adjournments of cases due to a number of factors have contributed to low progress in realizing the right to health. The voice added by the court of public opinion has however been important in ensuring that these challenges are surmount. The coalition to stop maternal mortality, legal expert’s advisory group among other stakeholders is thus applauded for its continued efforts, advocacy, and time towards realizing the right to health