For the preceding eight years, CEHURD
(Center for Health, Human Rights and Development) a company limited by
guarantee and established under the Laws of Uganda, has brawled tooth and nail
to ensure that the government is accountable for its mandate under the 1995 Constitution
of the Republic of Uganda, as amended. In 2011, the organization filed a public
interest case in the Constitutional court under Constitutional petition 16 of 2011
questioning the multiple maternal deaths in Mulago hospital, a government
established hospital, due to the reckless and negligent behavior of health
workers and the limited medical machinery necessary to assist pregnant mothers
The Attorney General of the Government,
stating that it was a political question doctrine, dismissed the first hearing
on a preliminary objection. The political question doctrine is a ghost that has
been haunting the Ugandan legal system and it was first encountered by the Constitutional
court in Exparte Matovu, a 1966
decision which was challenging the Constitutionality of Obote’s government and
the pigeon hall Constitution. Since then, until 2013 however, whoever questions
performance of activities by government or any governmental institution is
dismissed from continuing the process on grounds that the government is accountable
to no one and the courts cannot question the performance of its activities.
However, in 2013, Justice Esther
Kisakye gave a landslide ruling on behalf of the Supreme Court in Constitutional
Appeal No.1/2013 that has formed such good jurisprudence for the Ugandan
judicial limb. The court stated that the government could not hide behind the
political question doctrine and fail to give accountability for the roles that
were assigned to it since the constituent assembly sat in 1995 to promulgate
The learned justices made reference to
Uganda’s broad obligations under international law such as the International
Covenant on Economic, Social and Cultural Rights of 1966, The Maputo Protocol
2003 and the International Covenant on Civil and Political Rights 1954, which
provide that the government ought to show a fulfillment of a ‘minimum core’
obligation towards all of its duties. It thus directed the Constitutional court
to hear the merits of the case and determine whether the government has
actually fulfilled its minimum core obligation as regards the inconsistencies
pointed out by the petitioners, this was with regard to the decision in Government of the Republic of South Africa
and others V Grootboom May, 2000.
It has taken the Constitutional court
five years to adhere to this Supreme Court directive and we finally got a
hearing date for 13 June 2019, after years of beavering to get a hearing date.
This was a major delight and ecstasy for the organization as a whole, the
affected mothers, victims and well-wishers. Various media houses rejoiced with
CEHURD and a social media campaign commenced, stating that the delay to hear
that case has led to an increased number of maternal and child deaths
especially in government institutions.
Two weeks prior to the hearing, the team
worked tirelessly to compile a list of authorities, make copies of all the
volumes of our documents and file our substantive arguments and submissions.
At 8:00 AM on the 13th day
of June 2019, the whole team effortlessly grasped the throng of documents and
volumes required for the hearing and paraded to court. Our voyage was combined
with heavy down pours of rain that intensified the traffic on the roads but by
the grace of God, we were able to arrive at TWED Towers, in Kampala and we were
settled by 9:00 AM to await the judges to make a determination as to when our
case would be heard. The courtroom was filled to capacity as students,
advocates, the public and nonprofessionals sat tolerantly to hear the
substantive arguments for the eight yearlong case. Majority of the public had
no space to sit but they stood and awaited the proceedings.
As expected, the judges arrived at
their expediency, an hour and a half later and our case was slotted for 2:00
PM. To add salt to injury, when the time for our case hearing came, it began at
about 3:00 PM and the Attorney General, representative of government, asked for
a month’s adjournment because they were not equipped for the submissions. The
five panel bench willingly granted this adjournment and the case was slotted
for 17 July 2019.
This came with a horde of disenchantments
owing to the mounting success of maternal and women rights as well as the unremitting
struggle to launch the aspects of health and the law into our Ugandan system.
For the past four months, various reports and media coverages have been
trickling in concerning a number of maternal and child deaths from Mityana
Hospital and on 11 June 2016, there was a report on the death of Sylvia
Nantongo, a 19 year old who died while giving birth due to the negligence of
the health workers.
These have been a few of the multiple
reports that have been made since 2017 on the increasing rates of maternal
deaths in the country. This questions whether the government essentially takes
keen interest in protecting the maternal functions of women and their rights in
society as guaranteed under Article 33 of the Constitution. Additionally, there
were concerns about the Constitution of the bench. There was only one lady on
the bench yet these are very sensitive and important issues to the society we
A four-man panel cannot effectively
make a determination of maternal health law issues when they do not have a
clear understanding of the nitty grities involved with child birth and thus, a
need to get a more constitutive panel of females that will be able to
understand the plight of the mothers and the urgency of the issues.
Until this is done, am afraid the
written law concerning the rights of women and their maternal functions in
society will remain on paper and the practicability of seeing justice delivered
in this respect, will continue to be deferred and create peril for the lives of
both women and girls in this our Uganda. Something needs to be done more
by Khanani Daniella, intern at CEHURD.