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.




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Engaging Grass Root Planning to Influence the Next Health Financial Budget

DSC_7930Ugandans desire for a country where basic services are accessible and available; a country where there is representation for all regardless of social, cultural and other backgrounds, with leaders who mind about the progress of the nation and the people. It is possible and I should say that we are making strides and one of the ways is through effective budget advocacy processes that stand out to lobby for change in a bid to ensure basic needs like health are adequately prioritized while budgeting for the country.

The budget advocacy process has resulted into the development of the national budget framework paper for financial year 2016/2017 that is referenced to the National Development Plan II (2016-2020), as well as ministerial policy statements and sector performance reports. The paper has been shaped to focus in a more consultative process that involved national stake holder consultations and Civil Society Organizations under the Civil Society Budget Advocacy Group (CSBAG).

Although the high level engagement and consultations would generate impact gains, if peoples’ views and ideas are respected, refined and incorporated into national priority goals, participation in the budget processes should be both a means and an end to itself. It should be a productive space for the public in the sphere of civil society organizations to offer input into the budget development process in order for it to resonate with the human rights principles of community participation.

In review of the ministerial policy statement 2016/17, Ug.shs 44.99billion has been allocated as recurrent budget to run health service delivery under Primary Health Care services. This is envisaged to support 137 local governments with 56 General Hospitals, 61 Private Not For Profit Hospitals and 4,205 Lower Level Health Units.

It is thus critical that government and policy makers strive to incorporate community needs in the budget framework. Critical and measurable action steps should be manifested towards prioritizing community needs of the 19% Ugandans that live below the poverty line and those who suffer catastrophic expenditures on health care. It is therefore imperative to prioritize and increase funding for primary health care under the local government funding. This is expected to impact significantly on access to health care and also check on the regional disparities in access to health care.

The district Primary Health Care grant in financial year 2016/17 is proposed to be reduced by 1.5 billion. This reduction will affect service delivery at the lower health facility level. However, a study undertaken by the ministry of health indicated that in order to enhance health service delivery in the local governments, an additional Ug.shs 35 billion is required to make the current facilities operate at a reasonable level. Primary Health Care funds support the functionality of health facilities, it provides for basic health services, utility bills and remuneration of support staff.

It is upon such a background that the Civil Society Budget Advocacy Group(CSBAG) advocates to government to allocate an additional Ug.shs 35billion to local governments to cater for provision of adequate Primary Health Care Services, in order to increase access to health care services. It is thus prudent for government to reinforce strategic plans with community views and interests. The local government financing should be prioritized to improve access to health care services in local governments. The intervention is foreseen to decongest the national referral hospital. This is in line with the global movement of increasing access to health care services a critical aspect in framing the right to health which promotes equitable health provision for all Ugandans.

Donny Silus Ndazima
Center for Health, Human Rights and Development

How the Death of Two Ugandan Mothers is Helping Entrench The Right to Health Care

When Sylvia Nalubowa went into labour in Uganda’s Mityana district in August 2009, she was taken to a local health centre where she expected to have a normal birth, supervised by a midwife.

After she had delivered her first baby the midwife realised there was a twin on the way. The midwife recommended that Nalubowa be taken to the district hospital where a doctor could handle the second delivery.

But when she arrived at the Mityana District Hospital in Central Uganda, the nurses asked for her maternity kit. This is commonly known as a “mama kit” and contains a plastic sheet, razor blades, cotton wool or gauze pad, soap, gloves, cord ties, and a child health card. All mothers delivering babies in Ugandan hospitals and clinics are expected to bring their own “mama kits” when they go into labour.

But Nalubowa had used her “mama kit” at the first health facility when delivering her first child. The nurses would hear none of her excuses and demanded money to purchase the kit before they could attend to her.

Nalubowa and her baby died.

Jennifer Anguko died under similar circumstances. She arrived at the Arua hospital in North Western Uganda at 8.30am on December 10, 2010 but was not attended to for 12 hours by which time her condition and cries for help were out of control.

One hour later she was taken to theatre but she and her baby died during the procedure. The cause of her death listed in the post mortem report was a ruptured uterus.

The women’s cases are two of many

Sixteen women die in Uganda every day during child birth in instances that could be avoided. In 2011, the World Health Organisation reported that Uganda registers up to 440 deaths for every 100 000 live births.

This is unlike Rwanda where maternal mortality decreased by 77% between 2000 and 2013 and currently stands at 320 deaths for every 100 000 live births.

Most maternal deaths in Uganda are due to severe bleeding, infection, hypertensive disorders and obstructed labour. Others are due to causes such as malaria, diabetes, hepatitis and anaemia. All these are aggravated by pregnancy.

The Ugandan government is committed to providing all citizens with free health services. But it is common to go to a government health facility and find that medicines are not in stock and health workers are not paid. Patients also say that they are often met by health staff who are unenthusiastic about attending to patients expecting free services.

In 2013, the doctor to patient ratio in Uganda was estimated at one doctor for just under 25 000 patients. The nurse to patient ratio sat at one nurse for 11 000 patients.

The country’s public health system has a tiered structure with two national referral hospitals, 11 semi-autonomous regional referral hospitals, and a well established district health system with healthcare centres in 56 districts.

Health care services are financed through general tax revenue and donor funding. Although user fees for health services in public facilities were abolished in 2001 patients are still expected to make direct out-of-pocket payments for some services and drugs.

Fighting for a right

In 2011 lawyers at the Centre for health, Human Rights and Development, a non-profit, research and advocacy organisation, began gathering evidence to hold the Ugandan government to account for Nalubowa and Anguko’s deaths.

The case is now before the country’s Constitutional Court.

In what has turned into a landmark case, the centre has argued that failing to provide essential maternal health commodities in government health facilities is an infringement on women’s rights. The rights to life as well as health are guaranteed under the country’s constitution as well as international human rights instruments the government has signed up to. These include the:

  • International Covenant on Economic Social and Cultural Rights (ICESCR),
  • Convention of Elimination of All forms of Discrimination Against Women (CEDAW), and
  • Maputo protocol.

The court erred

At the first hearing before the Constitutional Court government lawyers objected to the case. They argued that the judiciary was not competent to hear a case that required the executive arm of government to allocate resources to the health sector.

The court agreed and dismissed the case.

But the centre appealed to the Supreme Court, the highest court of appeal in Uganda. It argued that the justices of the Constitutional Court erred in denying them an opportunity to hear the case based on its merits.

In October 2015 the Supreme Court’s seven judges agreed. They made a unanimous ruling that the Constitutional Court judges had erred in dismissing the case. In their judgment they argued that the case had key questions that needed constitutional interpretation for the people of Uganda.

They contended that there is nothing the executive or legislature can decide on that may not be subjected to judicial review – especially if it is done in line with the constitution. And they have ordered the Constitutional Court to hear the case which is now before the Constitutional Court pending a hearing by a new panel of judges.

Making health care a priority

The case has contributed to jurisprudence to help people realise their social economic rights in Uganda.

But it has also catalysed improvements in health service provision. Since the case was initially heard government funding for the health sector has improved from US$ 215 million (UGX 737.60 billion) to US$ 328 million (UGX 1127.48 billion) and more health workers have been recruited. Mothers, however, are still expected to bring their own “mama kits” when going into labour.

There has also been a reduction in maternal deaths. These have fallen from 440 deaths for every 100 000 live births in 2010 to 343 by 2015.

Most importantly, civil society organisations are now, more than ever, alert to demanding women’s health care rights.


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Achieving the HIV/AIDS Zero Discrimination Status

zerrroThe United Nations Joint Program on HIV and AIDS (UNAIDS) earmarked March 1st as the day to mark zero discrimination. The day, which has been celebrated since 2014, is this week being celebrated under the theme “Stand Out!” It recognizes the fact that, there are inequalities catalyzed by laws and policies that are making it difficult for some persons living with HIV and AIDS (PLHIV) to access care and encourages everyone to stand for fair and just societies thereby undermining these key populations’ rights to health and to be free from discrimination.

The national projections based on Uganda’s HIV and AIDS Country progress report of 2014, indicate that there is an increasing number of people living with HIV that is; from 1.4million in 2011 to 1.6milllion in 2013, and 1.5million in 2014, with over 1million orphans due to AIDS.

Research today indicates that stigma and discrimination is one of the forces that cause escalation of HIV and AIDS. In the Uganda AIDS Survey of 2011 for instance, it was stated that 21.6 % of men and 16.8 % of women felt People Living with HIV (PLHIV) should be ashamed of themselves, while 22 % of men and 18.3 % of women agreed that those with HIV, should be blamed for introducing the disease into the community.

The fear of stigma and discrimination affects the uptake of HIV services. Multiple studies in Sub-Saharan Africa provide evidence that many people who have experienced stigma and discrimination as a result of receiving HIV positive results shy away from accessing the services that would have enabled them to manage the virus and its opportunistic infections.

It should be noted that laws and policies play a significant part in either promoting stigma or reducing it. In 2014 parliament passed the HIV and AIDS management and Control Act. This Act, even though good and for all intents and purposes to promote care and treatment of PLHIVA, undermines the confidentiality of patients living with HIV and AIDS in certain aspects. In cases where the rights of PLHIVA were promoted, no regulations have to this date been passed to operationalize the positive aspects.

Civil society groups have been very keen in advocating for an anti-Stigma policy, however government needs to increase support towards this process to ensure that counseling and civic education on rights of PLHIVA are provided for, in a systemic manner.

Further, key to the issue of fighting stigma and discrimination is the aspect of financing of HIV drugs and programs. Parliament has noted that for the past four consecutive years, in spite of the increase in HIV and AIDS infections, there has been no increment in government funds towards purchase of ARVs at the National Medical Stores (NMS). In FY2015/16 the parliamentary committee on health reported that the NMS budget for Antiretroviral therapies (ARVs) remained stagnated at 100 billion for the projected year 2016/17. This is in spite of the fluctuations in dollar currency rates, which led NMS to incur losses of up to 17billion shillings. There is a need for government to increase funding for ARVs this financial year.

We thus call on government to;
1. Increase finances for ARVs in FY 2016/17 from the allotted 100bn to at least 150bn
2. Fast track the process of putting in place an Anti-stigma policy
3. Fast track the passing regulations for implementation of positive aspects of the HIV Prevention and Management ACT
4. Prioritize the process of putting in place an AIDS Trust Fund

This statement is supported by the Advocacy for Better Health in Uganda.