Walking the tight rope: The role of local governments in promoting access to emergency obstetric care in Uganda

By Primah Kwagala


According to Chapter 11 of Uganda’s Constitution, local governments have a mandate to oversee the performance of their employees, provide them services and monitor those services. It is on this basis that the Center for Health, Human Rights and Development (CEHURD) came to work with a family in Nakaseke District to seek justice for the maternal deaths in Nakaseke District Hospital.

In May 2011, Ms. Nanteza Irene accompanied by her husband Mr. Mugerwa David went to Nakaseke District Hospital to deliver their baby. The midwives on duty uncovered that there was an obstruction during Ms. Natenza’s labour. This required emergency obstetric care by a doctor who was nowhere to be found. The doctor finally arrived eight hours later but was too late to save Ms. Nanteza’s life.

CEHURD alongside Mr. Mugerwa David and his children filed a civil suit in the high court in 2012 against Nakaseke District Local Government. The plaintiffs sought general and punitive damages in addition to declarations that the deceased’s right to life, health, freedom from inhuman and degrading treatment, equal treatment and the children’s rights to be cared for by their mother had been violated by the hospital staff. CEHURD argued that the Nakaseke District Local Government was vicariously liable for the acts and omissions of their employees.

The court held that the local government was responsible for the administrative and supervisory oversight of Nakaseke District Hospital. The local government was in charge of sending an administrator to ensure that there were adequate heath care services in place at the hospital. In this case, however, the government failed to ensure that there were sufficient resources, such as doctors, at the hospital. The court held that the doctor was vicariously liable for the death of Ms. Nanteza Irene.

This case saw for the very first time in Uganda, a justice of the High court visit to a district hospital to establish the facts and circumstances. This illustrates the commitment from the judge to understand the issues of health and human rights.

Indeed Justice Benjamin Kabiito’s judgment held that Ms. Nanteza Irene’s human and maternal rights and the rights of her family were violated. Justice Benjamin Kabiito decried the poor status of health in the country and the meager resources devoted to the health sector but found it sufficient to award general damages worth UGX 35,000,000 against Nakaseke District Local Government. He cautioned the health workers that were negligent in handling the deceased and called on the Uganda Medical and Dental Practitioners’ Council to investigate issues of negligent conduct leading to deaths of innocent citizens.

This case was the first of its kind to recognize the right to access emergence obstetric care (EMC) as being justiciable and a fundamental human right in Uganda. The results of this case set precedence for the litigation of maternal health rights in Uganda.

The case further opened public’s eyes on their ability to demand health and human rights while ensuring that the Code of Conduct and Ethics for Public Service of conduct laid out by the government. A key issue to also note was Justice Kabiito’s limited appreciation of human rights issues. Contrary to the public opinion that human rights are a westernized idea being imposed on Ugandans, the issue of emergence obstetric care was homegrown. Much as Justice Kabiito wanted to subvert the discussion to negligence and tortuous conduct of health workers, jurisprudence was drawn into the perspective of how the judiciary understands health and human rights of ordinary citizens of Uganda.


Universal Periodic Review and the right to health situation in Uganda: Setting the agenda.

By Noor Nakibuuka

International mechanisms are often not given much attention, probably because majority of Ugandans are not aware of their existence or importance.  Unlike the previous review of the country in 2011, Ugandans are more than ready to participate in the Universal periodic review (UPR) of 2016.

The universal periodic review is a unique process of the Human Rights Council (HRC) aimed at improving the human rights situation for each of the 193 member states – Uganda inclusive. This mechanism gives room for each country under review to provide information on the Human rights situation there, and between October and November 2016, Uganda will undergo a review.

In preparation for this review, various civil society organisations have set the agenda. CEHURD has led civil society organizations working to promote the right to health in Uganda (including sexual reproductive health rights) to put together and submit reports prior to the review.

Indeed, much of the information provided relates to the situation of the right to health from the previous review to date, citing what recommendations the state committed to, what it has done and not.

The report also introduced new areas that were never discussed in the previous review but have evolved with time and may affect the realization of the right to health – mental health laws; access to safe and legal abortion; Access to sexual reproductive health services and information by the youth among others are some of the areas introduced in the submitted reports.

Putting the reports together necessitated time, trainings on universal periodic review,  meeting with experts on the same and understanding standard guidelines set by the office of high commissioner for human rights that duly receives these reports.

Although the state still has time within which to submit its report, we anticipate that the process will be consultative and civil society given room to input into the state report. We appreciate the space the state has provided us in participating into the national Action plan which was a voluntary pledge made during the previous review and hope that funds to implement such a constructive document will be prioritized in order to realize among others, the right to health.

When duty bearers are made to account for health rights violations

By James Zeere

Health rights activists in Uganda will always look to the 2015 as the year in which they cleared major barriers regarding the health rights of mothers in Uganda. The story of maternal health care in Uganda has always been a gloomy one. Three women, now deceased, have forever altered the future of Ugandan jurisprudence on maternal health rights. These women best illustrate the state of maternal health care in Uganda as it is.

On August 19, 2009 Sylvia Nalubowa needed emergency obstetric care. The nurses, who required Sylvia to pay for the necessary commodities for the operation, systematically extorted her. While all this extortion was proceeding, Nalubowa passed away before she could even see a Doctor at the Hospital.

Further to the North of Uganda in December 10, 2010, Jennifer Anguko was kept in the labour ward for up to nine hours without being attended to. She started bleeding profusely while the nurses at the Hospital were in a room close by, chatting. Anguko death could have been averted if the nurses gave her the necessary care and attention.

The Constitutional Court in the first instance rejected CEHURD’s claims for declaratory orders that the deaths of Sylvia Nalubowa and Jennifer Anguko violated maternal health rights and that the State needed to undertake measures to end preventable maternal deaths in Uganda. Questions of the provision for the health services of mothers were committed to the Executive and could not be heard by the Court in accordance with the doctrine of separation of powers. On appeal the Supreme Court decided that the question of whether the deaths were a consequence of the violation of the right to health was a legitimate question that required the interpretation of the Constitutional Court. The Constitutional Court was therefore directed to hear the case.

But before the Supreme Court passed the decision on Nalubowa and Anguko’s deaths, CEHURD brought another matter before the High Court of Uganda. In May 2011, Nanteza Irene accompanied by her husband went to Nakaseke Hospital to deliver a baby and it was detected that she had suffered an obstructed labour and required emergency obstetric care by a doctor who was nowhere to be found within the hospital. The doctor showed up after eight hours but it was too late. Nanteza had breathed her last having endured eight hours of excruciating pain due to an obstructed labour.

These two cases seem miles apart in terms of the issues they deal with, but they’re both concerned with key questions of accountability in the realization of health rights in Uganda. Primarily, the facts identified disclose that the problems in each of the cases were risen when a pregnant mother could not receive emergency obstetric care because the doctor who was supposed to be at the health facility was inexplicably absent.

The Committee on Social Economic and Cultural Rights (CESCR) under General Comment No. 14 on the right to health prescribes that that states have the obligation of making functioning public health care facilities, goods and services available in sufficient quantity. Very importantly, however, CESCR also notes that the precise nature of facilities, goods and services vary depending on numerous factors including trained professional personnel receiving domestically competitive salaries. In that regard, while it may be argued that the state exhausts its obligation under the right to health when it puts in place a health facility and hires qualified health workers that are competent to provide health services required by the public, as the three mothers learnt, it is never enough. In the cases of Jennifer Anguko, Slyvia Nalubowa and Irene Nanteza, qualified doctors to provide emergency obstetric care services had been hired and deployed at the respective hospitals. Yet when they were urgently needed, they were nowhere to be found.

Justice Kabiito in CEHURD Vs Nakaseke District Local Government HCCS 111 of 2012 faulted the hospital administration for not adequately supervising the hospital staff, which led to the failure of ensuring doctors remained at their duty stations to attend to the patients. This here is the first level of accountability. It is not enough to have qualified health workers and commodities at the health facility when at the end of the day the public will still remain unable to access quality treatment. The right to health requires that deliberate measures be undertaken to ensure that all resources, both human and pharmaceutical, that have been put in place for purposes of health care provision serve their purpose, however meager they may be. The failure to put in place measures to ensure that the resources deployed are performing their function makes their supply redundant and deviates from the envisaged goals under the right to health.

In the utopian scenario where human resources, essential medicines and health supplies have been adequately made available in a health facility and they are effectively performing their function of providing quality health care to the public, a second level of accountability arises. According to Justice Bart Katureebe in CEHURD & Ors V Attorney General SCCA No 1 of 2013, while it is the sole prerogative of the executive to make policies for the provision of health care, the Constitution of the Republic of Uganda envisages situations where an individual or the public may be aggrieved by the policy made by the Executive on the grounds that it infringes on the Constitution. In such instances, the Constitution has granted the Constitutional Court’s powers to entertain this grievance in the form of a constitutional petition. Constitutional petitions determine whether or not the policy contravenes the Constitution as alleged or not. Yet, the Constitutional Court had refused to exercise these powers when approached by CEHURD in the first instance to protect mothers in Uganda today.

The Constitutional Court and the High Court are two strong accountability mechanisms that were rightfully recalibrated by the Supreme Court. In addition to ensuring that health care services are available, the state is required under the normative framework of the right to health to ensure that the services acceptable, accessible and of quality.  Where the state has through its policies made health care services available but has fallen short on the quality, acceptability and accessibility components, the powers of the Constitutional Court can be invoked because the right to health though not expressly provided for is guaranteed by the Constitution of the Republic of Uganda. The Constitutional Court had divested itself of these powers and denied the public access to justice where policies and laws violated the right to health.

CEHURD Vs Nakaseke District Local Government HCCS 111 of 2012, the Court challenged the State to strengthen its own accountability mechanisms for the protection of the right to health, while in CEHURD & Ors V Attorney General SCCA No 1 of 2013 the Court placed in the hands of the public a formidable weapon to challenge policies or laws that violate the right to health. Jurisprudence on the right to health in Uganda has never been stronger and the fight to realize the right to health within Uganda’s health system has never raised so much hope for mothers. The struggle continues but for now every duty bearer in Uganda can be held accountable for any violation of the right to health in Uganda thanks to these landmark cases.



Detention of persons with mental disabilities in prisons indefinitely violates their human rights.

 By Nsereko Ibrahim

Some circles in our communities shun people with mental disability not knowing that mental illness is a condition that can be treated in our health care setting. We as a people ought to take cognizance of our loved ones with mental disabilities detained in numerous prisons all over the country.

The continued stigma against people with mental disability stemming from our families and communities has resulted into abandonment of mentally disabled persons in police cells and prisons without follow up and care. This state of affairs has left many people with mental disability being incarcerated for years without receiving due medical attention.

Reflecting on a recent case handled by the High Court at Masaka (Uganda vs. Tesimana HC Criminal Revision Case No. MSK -CR-CV-0013 of 1999), sixteen years ago, Ms. Tesimana who required mental treatment was detained in prison for eight years without being tried and without receiving proper treatment. The Judge in this case stopped the hearing of the case and directed that the accused to be taken to hospital for a mental health examination.

The Uganda Human Rights Commission (UHRC), in its 2014 report, echoed the same concerns. The report indicated that Uganda Prisons Services had forty four (44) prisoners awaiting a Minister’s order, and that during the inspection by UHRC in Jinja Remand Prison; sixteen (16) prisoners were also detained awaiting a Minister’s order. These are some of the few cases that come out in the lime light, but how many of our brothers, sisters, parents and children with mental disability have been damped in rural and urban prisons?

It is critical to note that not all health facilities in Uganda provide mental health care services and yet a question remains, who should be held accountable for the deteriorating mental health of prisoners detained for years in prisons that cannot provide psychiatry treatment?

We must acknowledge that our government has made commitments on mental health at different levels. Article 35 (1) of our 1995 Constitution guarantees persons with disabilities a right to respect and human dignity and calls on our government to take appropriate measures to ensure that they realize their full mental and physical potential. Other laws in Uganda as well as regional and international human rights instrument such as; Persons with Disabilities Act, African Charter on Human and People’s rights, Convention on Rights of Persons with Disabilities among others, provide for rights of persons with mental disability.

Indefinite detention of mentally disabled persons denies them the right to respect and gravely undermines their dignity. The continued restriction of their liberty outside the confines set out in our Constitution is untenable in this era of promotion and respect of human rights.

Article 23(1) (f) of our Constitution only permits the detention of a person with a mental disability for purposes of care or treatment of that person or protection of the community. It’s unfortunate that people suspected to have a mental disability are remanded in prisons instead of being referred to health facilities for treatment.

Irrespective of existing situation however, we must applaud the Center for Health, Human Rights and Development that petitioned the Constitutional Court (Constitutional Petition No. 64 of 2011) challenging   the constitutionality of laws, practices and usage of abusive language towards persons with mental disabilities in the criminal justice system. The Honourable Justices of the Constitutional Court while delivering their decision recently, concluded that;

Before subjecting any person to a criminal trial, the trial court must ascertain and establish that he/she (a person with a mental disability) will follow and understand the proceedings. The existing provisions in our Trial on Indictments Act (Article 45(5): the entire procedure to declare a person unfit for trial, the duration and place of his/her detention  and the time when he should be released should be determined by Court after full inquiry based on medical evidence in full compliance with due process. The Minister is procedurally and substantively not a competent person to certify the deprivation of liberty of the alleged mentally ill accused person without first seeking medical advice and without according the affected person a hearing.

The process of determining whether or not an accused person should be detained should be left to trial Court and such detention should be strictly for medical treatment. Court should also determine when the accused is ready to stand trial or be released to the community based on concrete medical evidence, provided by a psychiatrist.

The consequence of the current procedure is that it contains great potential for injustice as it may deprive an accused person of personal liberty for an indefinite period of time. There is a very real risk of mentally disabled persons disappearing in the criminal justice system without proper standards being set for involuntary confinement and procedures for review”.

As we celebrate this victory, we should be conscious that the government and relevant departments are often reluctant to take steps in implementing the decisions of Court. For this particular court decision, we expect the Ministry of Justice and Constitutional Affairs to urgently review the impugned provisions of the law and undertake comprehensive investigation to remove all people with a mental disability detained in prisons, and refer them to health facilities to receive treatment.  We also note that the Ministry of Health should also take steps to strengthen the existing health facilities to accommodate the mentally disabled detainees that are referred by Courts for treatment.

With combined efforts of government, families of detained persons, and the private sector, dignity of persons with mental disabilities in our country will be upheld, promoted and respected.

Shielding under the political question doctrine by the government violates human rights guaranteed in national and international law

By Nakityo Veronica


Uganda, as a country joins the world to celebrate human rights while recalling its history that is characterized by political and constitutional instability. The government is revisiting its commitment to building a better future by establishing a socioeconomic and political order through a popular and durable national Constitution based on principles of unity, peace, equality, democracy, freedom, social justice and progress.

We take notice that, the government of Uganda has had challenges in domesticating and implementing the right to health over the years. We have ratified a number of international instruments on the right to health and have further guaranteed fundamental Human Rights under chapter 4 of our constitution.  Uganda also made efforts to promote the rule of law and the doctrine of separation of powers under Articles 77& 79, 111 (1) & (2) and 129 as well as the doctrine of checks and balances under Articles 113 (1) & 114 (1) and 130 & 132, 134 & 137, 138 & 139 respectively.

On the other note, the Judiciary has often been seen to defend and uphold the Constitution of the Republic of Uganda through its mandate on the right to hear and determine cases. Through jurisprudence that Courts of law have developed over the years on the right to health. In particular, Center for Health Human Rights & Development [CEHURD] & ORS Vs. Nakaseke District local administration HCCS No. 111/2012 unreported. Hon. Justice Benjamin Kabiito Declared and ordered Nakaseke District Local Administration to pay the widower, Mr. Mugerwa and his children general damages of Ugx. 35,000,000/= [Uganda Shillings Thirty Five Millions only] for their failure [acts and omissions] to ensure that its employees at the Nakaseke Hospital provide timely, immediate and emergency obstetric care that the deceased needed at the material time to overcome the obstructed labor that led to her death; amounted to a violation of her human and maternal rights as well as the rights of the widower and the children under the constitution.

We must acknowledge that Uganda as a country has the obligation to respect protect and take all steps to ensure that the human rights of its citizens are fulfilled and that the state is required under international, regional and domestic instruments to account for human rights violations. The Constitution of the Republic of Uganda has to this extent created a mechanism under Article 137 (3) (b) to interpret such violations that are inconsistent with the Constitution against any person or arm of government. This reasoning was brought before the Constitution Court for interpretation in the case of Center for Health, Human Rights and Development [CEHURD] & 3ORS Vs. Attorney General Constitutional Petition No. 16/2011 were Honorable Justices of the Constitutional Court struck out the petitioners petition that was challenging certain actions and omissions of the government and its workers in providing basic maternal health services/commodities in public health facilities contrary to Objective 1(1), XIV (b), XX, XV, and Articles 33(2) & (3), 24, 34(1), 44(a), 287, 8A and 45 of the Constitution of the Republic of Uganda on grounds that the petition did not disclose competent questions that required the interpretation of the Constitutional Court. Further that Court could not look into the acts and omissions of the state because the issues that were raised by the petitioners in the petition were matters of political question doctrine

However, CEHURD appealed the decision of Constitutional Court on three grounds seeking court to hold that the Justices of the Constitutional Court erred in law when they misapplied the political question doctrine and prayed that the petition be allowed on merit

We applaud the Honorable Justices of the Supreme Court of Uganda for guaranteeing the right to health and upholding the Constitution of the Republic of Uganda by allowing the appeal and directing the Constitutional Court to hear the petition on its merits. While delivering the decision in the matter, the Justice Bart M. Katureebe, CJ, in particular noted that … “The Courts of law are given mandate to intrude into the domain of the executive if it acts outside or fails to act within the bounds of the Constitution. The Constitutional Court has vested powers of review, if a person alleges that the acts or omissions of any person or authority are inconsistent with the Constitution. Therefore the political question doctrine and separation of powers would not arise where the mandate has been given by the Constitution itself. The Constitution is Supreme over every one, body or authority and the actions or omissions of the executive are immune to judicial only as far as they are made in accordance with the Constitution”

Therefore, we remind all Ugandans that Constitutional Court has powers to review any acts or omissions committed by the executive or legislature that are inconsistent with any of the provisions of the Constitution. All stakeholders ought to hold, not only the executive but also the parliament of Uganda and the judiciary accountable for the violations of human rights under national, regional and international law.



FUNDRAISING DINNER REGISTRATION             |             ABSTRACTS         |          PROGRAM