My Experience Litigating Sexual and Reproductive Health and Rights Related Cases

“Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Such are the places where every man, woman and child seeks equal justice, equal opportunity, and equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere.”

Eleanor Roosevelt

By Ruth Ajalo | Lawyer

Before joining the Center for Health, Human Rights and Development (CEHURD), I had basic information
about the right to health. This basic information was gained while pursuing the health and the law course
unit in my fourth year at Makerere University Law School. Learning the right to health was exciting and it
set a spark within me that I desired to carry forward in my career. This did not materialise immediately after Law School but when I eventually joined CEHURD, I was excited and looked forward to learning more about the right to health and this unique area of legal practice.


At CEHURD, I have learnt, unlearnt and I continue to learn each day about the right to health and the
intersectionality of health and human rights. I can confirm that there is a lot of knowledge and exposure that the right to health brings to light. CEHURD, among other things, provides legal support to victims and survivors of sexual violence and health rights violations. It also litigates strategic cases aimed at addressing systemic gaps and bottlenecks within the provision of health services in the country. 


CEHURD prepares, nurtures, and gives you a platform to shine and build your career. As a legal
practitioner, last year, I had the unique opportunity of litigating a landmark Sexual and Reproductive Health Rights case before a bench of five justices of the Constitutional Court. This is a dream come true for any young lawyer.


My experience in handling and litigating SRHR cases has been an emotional rollercoaster; it has been easy, hard, tasking, draining both physically and emotionally at times but above all, fulfilling. It is exciting to secure a win for a client and a win for the transformation in the provision of health services in the country.
Litigating SRHR cases is unique because this is not something you do without learning, unlearning,
understanding and preparing. Your mind is trained to creatively pick out the rights issues in the case and
articulate them sufficiently in a manner that reflects preparation and in-depth knowledge of the issues at
hand. Furthermore, the external lawyers we work with on some of our cases have to be oriented on the
unique aspects of the right to health and why it matters before they delve into the gist of the cases. This
calls for thorough research, preparation which continuously builds one’s mastery in the area of Health and Sexual and Reproductive health.


When a person calls the CEHURD toll-free line or walks into the office seeking help, that person is either
seeking information or is seeking for support. They are usually hurting or have suffered some form of loss
and need redress and or some form of support. Regardless of the circumstances and the facts of the case,
as lawyers we are expected to be non-judgmental, good listeners and provide the most appropriate
professional support. During the client-advocate meeting, when the client breaks down and starts to cry, the counsel must wear another hat of a counsellor and have to exercise empathy towards them. This requires that the lawyer for a moment, abandons the legal path and the knowledge acquired in Law School to concentrate on helping a client recompose through provision of Psychological first aid. This requires that for a moment, you abandon the legal package and knowledge you walked into the meeting with, and take on a new mantle of a counsellor.

We walk the journey with our clients, we counsel them, we exercise empathy, we hand-hold, we manage expectations and above all, we keep an open mind as we handle these cases. It is important to note this process also takes on an emotional toll on the lawyer and calls for selfcare. The emotional toll is largely because lawyers by training are not counsellors but in country with limited professional counsellors, any lawyer will by default provide; counselling to their clients especially when engaged in SRHR.


This type of work is not void of challenges such as the heart-breaking experiences of the clients, and being misunderstood by the public because of the nature of the work done, among others. Sexual and
Reproductive Health is a largely contested arena. Listening to clients’ experiences can get emotionally
draining because their experiences are in most cases very painful and nobody deserves to go through such grueling experiences. Furthermore, the clients are not conversant with the litigation progress and despite an effort to explain to them and manage expectations, they get burnt out and experience litigation fatigue.


Litigating human rights will certainly be difficult for any client especially if they are facing stigma,
discrimination, abuse, and isolation among others because of the delay in the disposal of their cases. 
To respond to these challenges, CEHURD has invested in the provision of psychosocial support to the
legal team that handles these cases, general staff wellness and welfare to enhance the continuity of
litigation. We also share and learn amongst ourselves in the Strategic Litigation Programme with the view
of bettering ourselves. We also hold annual clients’ meetings where clients are invited for interactions and
update meetings about their cases, clients share amongst themselves and learn from each other and we
also receive feedback which we find useful for improving our service delivery.


As mentioned, we are sometimes misunderstood by the public but choose top stick to our calling trudge on nonetheless, undeterred and ever so ready to defend and stand for our clients’ rights and for system
change. 
Justice for our clients comes in many forms; arrest of an accused person, sentencing (imprisonment) of an
accused person, an apology from the health worker, an explanation offered for what went wrong, an
admission of wrongdoing from the health facility or health worker among others. It is these small wins and seeing systemic changes in the provision of Health that is the power below my wings and that keeps me waking up every day to provide legal support.


Despite all the hurdles and challenges encountered, the work is fulfilling. Fulfilment is in the fact that you
helped a person and they didn’t pay you for that service; that you utilised your legal knowledge to address a human rights violation and get justice for your client. Fulfilment is the phone call from a grateful client highlighting his or her gratitude “mwebale nyo, tusimye byona bye mwakola” –” thank you very much, we appreciate everything you do for us”. Some clients call us to update us on the progress of their daughters who suffered violence to indicate that our interventions built the girl’s confidence, she returned to school and she passed her Primary Leaving Examinations (PLE). 


To all human rights defenders, your work is not in vain; a step-by-step effort, a multi-sectoral approach, and perseverance will go a long way in realising a just society; a society in which people are free from sexual violence, free from health rights violations and all other violations around us. Let us persevere and keep the flame burning because society and the world at large still need us. 


Helping one person might not change the world, but it could change the world for one person” – Anonymous.

The writer is a Programme Officer in the Strategic Litigation Programme at the Center for Health, Human Rights and Development (CEHURD).

Reflecting on CEHURD’s Achievements and Stories of Success in Uganda’s Health Care System

CEHURD launched a national campaign to raise awareness of and advocate for safety in health-care facilities, recognizing that safety is a prerequisite for a strong health-care system.

Israel iya jeep

Post-World Patient Safety Day 2022 by Israel Iya Jeep                                    

The world patient safety day is observed annually on 17th September with the objective of increasing public awareness and engagement, enhance global understanding, and work towards global solidarity and action by member states to promote patient safety.[1] Across the world, unsafe medication practices and medication errors are a leading cause of avoidable harm in health care [l1]  and this year’s theme for the World Patient Safety Day embraces this fact. The theme builds on the ongoing efforts by the World Health Organization to ensure medication without harm. The theme provides the necessary motivation to take urgent action towards reducing medication-related harm through strengthening systems and practices of medication use.[2]  The world patient safety day is thus a global campaign calling on stakeholders to prioritize and take early action in key areas associated with significant patient harm that may occur due to unsafe medication practices. Furthermore, the world patient day offers great potential to raise awareness and understanding of health issues and mobilize support for action, from local communities to the international stage to further the fundamental principle of medicine “do no harm”.[3]

CEHURD with support from the Joint Advocacy for Sexual and Reproductive Health and Rights (JAS) Programme in commemoration of world patient safety day, kick-started a national campaign to amplify and advocate for safety in health facilities, recognizing that safety is a prerequisite for a strong health system. CEHURD is contributing – towards ensuring safety issues in health facilities are addressed and to this end, CEHURD has challenged the actions and inactions of hospitals that put patients safety at stake for instance, it challenged Mulago hospital on new born care and management, challenged the actions and omissions of the government of Uganda for failure to provide minimum maternal health services in petition 16 – What the constitutional court decision on access to basic maternal healthcare means, CEHURD with the Uganda Medical Association advocated for Prioritization of safety of health workers to protect patients during covid-19-and-beyond, an increase of salaries for health workers, documented facts on the state of health facilities and amplified the voice to renovate, build and ensure adequate health infrastructure. All these efforts are aimed at ensuring that patients’ safety is guaranteed and no patient suffers injury or dies because of unsafe and poor health care.

CEHURD’s efforts have recorded stories of success and progress in the health sector; he first success was achieved in constitutional appeal 01 of 2013, In this case, CEHURD contended that the non-provision of basic indispensable health maternal commodities in government health facilities and the imprudent and unethical behaviours of health workers towards expectant mothers contravened the constitution.  The supreme court, in rejecting the political-question-doctrine defence raised by the Attorney General, held that the executive cannot escape scrutiny where its actions or inactions violate constitutional provisions and that Article 20 of the constitution does not exclude any institution from respecting, upholding and promoting human rights. 

In addition to the above, the supreme court opened gates for public interest litigation especially in the area of health rights and patient safety when Justice lady Esther Kisaakye held that it’s not a requirement under the constitution for a petitioner who seeks redress to show that they suffered a personal legal grievance. CEHURD has leveraged on this order to bring legal action to advance health rights and cause structural reforms in the health sector as demonstrated in civil case No. 212 of 2013 in the High Court of Uganda between Center for health, human rights and development and others v Executive Director Mulago Hospital and others. In this case, court issued orders in form of structural interdicts in the health sector for instance orders requiring that Mulago hospital as a mandatory obligation takes steps to ensure and or enhance the respect, movement and safety of babies, dead or alive in hospitals and orders relating to the Executive Director of Mulago hospital to submit as a mandatory duty a written report every after 4 months regarding the steps taken to enhance the respect, movement and safety of babies to CEHURD.

Still in the jurisprudential circles, the dismissal and the decision in Uganda v Kato Frederick criminal case 56 of 2020 builds confidence among medical practitioners to continue providing safe-post-abortion care to different people that enter the doors for help which in turn may   reduce the severe effects of unsafe abortion that contribute to high maternal mortality rates[l2] . The case demonstrates that medical practitioners can provide safe post abortion care without fear of getting prosecuted.

CEHURD has conducted policy and legal framework mapping aimed at identifying laws, bills, policies, strategies and guidelines affecting self-care to identify opportunities and gaps that  inform advocacy for institutionalization of self-care in Uganda. [l3] 

CEHURD has also conducted research and facilitated investigations on the state of health facilities in Uganda for example the “No safety guarantees in moribund health system | PANORAMA” documentary which identified issues relating to poor quality health care, health expert shortage, unskilled man power, inadequate documentation of statistics relating to patient safety, inadequate man power, lack of infrastructure, ageing infrastructure among others. All these efforts have culminated into structural reforms in the health sector such as provision of safety gears to health workers, mitigating health expert shortage, building homes for cancer patients at the Mulago cancer institute, renovation of Busolwe Hospital, and influencing budgetary innovations in the health sector.

CEHURD has condemned detention of persons with mental illnesses and patients in health facilities, emphasising that Hospitals are not gazetted detention facilities according to the law of Uganda, and that there are special places where we have to detain people “No health facility is allowed to detain patients for any reason despite the business background. If people owe you, hand them to institutions who have that mandate.” ~ Dr Katumba | Uganda Medical & Dental practitioners’ Council.

We talk about these successes, achievements, progress to inform, influence, and inspire movements, the government, and all stakeholders to join the campaign aimed at causing positive structural changes in our heath sector and ensuring patient safety because a flourishing health sector is key in achieving our national goals. We call everyone to engage in advocacy efforts with key stakeholders including developing national campaigns, organizing policy forums, advocacy and technical events, capacity-building initiatives, lighting up iconic monuments with the goal of pursuing the objectives of the world patient safety day and the year’s theme of raising global awareness on the high burden of medication-related harm due to medication error and unsafe practices. We must not tire to advocate for urgent action to improve medication safety through engaging with health workers and other partners in the health sector in the efforts to prevent medication errors and reduce medical-related harm. We must empower patients and families to be actively involved in the safe use of medication, and scaling up implementation of the global patients’ safety challenge which is medication without harm.

In conclusion therefore, we all have a role to play in ensuring patient safety and the call for all persons to fully embrace and actively take part in activities aimed at promoting awareness and mobilize support for safety in health facilities at large.

The writer is an intern at the Center for Health, Human rights and Development.


[1] World patient safety day 2022 accessible at https://www.who.int/news-room/events/details/2022/09/17/default-calendar/world-patient-safety-day-2022

[2] Supra

[3] World patient safety day accessible ta https://nationaltoday.com/world-patient-safety-day


 [l1]This is repeated in the same sentence so lets keep the one at the beginning of the sentence

 [l2]I don’t know if this is a fact because we don’t have evidence that the numbers have reduced

 [l3]This is not very accurate so just leave it out.

Reduce maternal mortality and morbidity; Adopt best practices in safe motherhood during and post COVD-19

Finalise and pass the National Health Insurance Scheme Bill into law that recognises the unique maternal functions of women by ensuring their ability to access affordable quality maternal health care services from both public and private health facilities.

Esther Dhafa, Programme Officer – Campaigns, Partnerships and Networks Programme, CEHURD

 

Every year, Uganda commemorates the Safe Motherhood day 17th October.The Center for Health Human Rights and Development (CEHURD) joined the country to commemorate this day by calling upon the Government of Uganda to actualise the declarations in the landmark case, Constitutional petition No. 16/2011. This can happen through enhancing and promoting best practices of safe motherhood during and post COVID-19 TO reduce maternal mortality and morbidity. By doing this, we can realise the “Every Woman Every Child” Global Health Strategy Commitments (EWEC) His Excellency the President of the Republic of Uganda made on 15th May 2016 . 

Uganda’s EWEC commitments include among others; ensuring that comprehensive Emergency Obstetric and Newborn Care (EmONC) services in hospitals increase from 70 per cent to 100 per cent and in health centers from 17 per cent to 50 per cent. It also includes ensuring that basic EmONC services are available in all health centers; ensuring that skilled providers are available in hard to reach/hard to serve areas; and reducing the unmet need for family planning from 40% to 20%; increasing focused Antenatal Care 4th visit from 42 per cent to 75 per cent, with special emphasis on prevention of mother-to-child transmission (PMTCT) and treatment of HIV to ensure elimination.

Small steps towards safe motherhood

We do commend the government for the great efforts in reducing the high rates of maternal mortality from 438/100,000 live births in 2011 to an estimated 336/100,000 live births in 2016 (per the Uganda Demographic Health Survey 2016). However, we also note the little progress being made as a country in addressing health related issues that continue to kill women in Uganda  helplessly during childbirth.  As a best practice therefore, maternal health care services should be available, accessible, acceptable and of good quality in order to enhance safe motherhood. 

Over the years and for this specific year,  CEHURD continues to work tirelessly to ensure that women and girls are able to access affordable maternal health care services. This has been done  through a number of approaches including strategic litigation, research, evidence based advocacy and  collective voicing to amplify the need for better health care and service packages countrywide. With these approaches, coupled with government efforts and adoption of best safe motherhood practices, Uganda will be able to reduce  maternal deaths caused due to preventable health causes. These causes include haemorrhage (blood loss), unsafe abortion, hypertension, embolism, sepsis, and other direct causes like complications of anaesthesia and  caesarian sections, and postnatal depression suicide.

As we continue to commemorate Safe Motherhood, CEHURD remembers all the mothers that have died while giving birth. Unfortunately, an estimate of 6,000 women die annually in Uganda as a result of pregnancy related complications making it about 16 women dying per day (UDHS 2016). This means that today 16 women have died, tomorrow 16 will die and 16 more will die the following day which is very unacceptable. With such scary statistics therefore, Government’s obligation to promote safe motherhood becomes important, to ensure that no woman, or baby dies or is harmed by pregnancy or childbirth. This begins with the assurance of basic safety living for all expectant  girls or women in our society. 

Landmark judgment for maternal health

The Justices of the Supreme Court of Uganda in CEHURD, Prof Ben Twinomugisha, Rhoda Kukiriza, and Inziku Valente Vs Attorney General (Constitution Petition/\ 16/2011) finally made a nine-year long journey of collective voicing and persistence worthwhile. The justices set a precedent on maternal health care in Uganda to the joy of various civil society organisations under the Coalition to Stop Maternal Mortality in Uganda (CSMMU), development partners, grassroot women and well-wishers who were have been pushing for better maternal health care. Court declared among others that the Government’s omission to adequately provide basic maternal health care services and emergency obstetric care in public health facilities violates the rights to health, life, rights of women, subjects women to inhuman and degrading treatment. The Court also stated that this is inconsistent with and in contravention of Articles 8A, 22, 33, 39 and 45 read together with objectives XIV and XX of the National Objectives and Directive Principles of state policy of the Constitution. 

Rhoda Kukiriza and CEHURD staff celebrate the positive judgment on Petition 16. CEHURD PHOTO/Jacqueline Twemanye

This suit was filed in 2011 seeking to challenge the Government’s omission to adequately provide basic maternal health services and commodities in public health facilities as contravening the right to health, rights of women, and right to life and freedom from cruel, inhuman and degrading treatment. It’s premised on the wrongful deaths of the late Anguko Jennifer who died on 10th December 2010 in Arua Referral Hospital and the late Sylvia Nalubowa who died on 19th August 2010 in Mityana District hospital. Both women died during childbirth when they needed caesarian sections but failed to access the commodities and human resources required to obtain the same.

Call to action

We thus call upon the Government of Uganda to fulfill its statutory obligation by;

  • Providing basic maternal health care services to  women in Uganda which include among others prenatal care services, skilled medical officers in health facilities, and provision of Emergency Obstetric Care and postpartum care. 
  • Investing in family planning, antenatal care, safe delivery, newborn care & Post-natal care, and Emergency obstetric care which are the key pillars of Safe Motherhood. 
  • Prioritizing basic maternity care, primary health care and equity for all women to enable them fully enjoy and fulfil their natural maternal functions which is a fundamental human right (Art 33 of the Constitution).
  • Finalise and pass the National Health Insurance Scheme Bill into law that recognises the unique maternal functions of women by ensuring their ability to access affordable quality maternal health care services from both public and private health facilities.

Lastly, informed and effective advocacy is the starting point for bringing about change. We thus call upon all stakeholders to join us in sensitizing the women including the youth and adolescents about safe motherhood and their right to receive and impart accurate sexual reproductive health information and empower them to make informed decisions to be able to keep and stay healthy since a healthy population is able to efficiently contribute to sustainable development. Safe motherhood values the girl child and implies the availability, acceptability, and easy access to health care for women’s prenatal, birth, postpartum, family planning and gynecological needs. 

Let us adopt a multisectoral approach to SRHR and Safe motherhood, for better health and healthy lives.

EVERY WOMAN DESERVES TO BE AND FEEL SAFE AS A MOTHER OR MOTHER TO BE.

JUDGEMENT: Supreme Court orders the Constitutional Court to hear Maternal Health Cases

The judgment struck down a 2012 ruling by the Constitutional Court that it had no mandate to hear a case regarding the alleged violation of health rights and the rights of women.

The case had been filed by families of two pregnant women who died in childbirth and the Center for Health Human Rights and Development (CEHURD) against the Attorney General in 2011 (Constitutional Petition No. 16 of 2011), arguing that non-provision of maternal health services in Uganda violated the Constitution.

The Attorney General argued on preliminary objection that issues relating to health rights were “political questions”—matter that the Judiciary had no authority to address. Constitutional Court agreed with the State’s objection and dismissed the case.

The Supreme Court’s ruling struck down the Constitutional Court’s judgment, and means the original case can now be heard on its merits.

“With great respect to the Constitutional Court, I think they misunderstood what was required of the court. I do not think the court was required to determine, formulate or implement the health policies of government. In my view, the court is required to determine whether the government has provided or taken all practical measures to ensure the basic medical services to the population. In this case it is maternal services in issue” Bart M Katureebe, Chief Justice

 

 

Supreme Court to deliver Judgment on Maternal Health Rights in Uganda

The Supreme Court of the Republic of Uganda is on Friday 30th October, 2015 at 9.30a.m expected to deliver Judgment on whether maternal health rights are justifiable in Uganda.

In a case filed by the Center for health, Human Rights and Development (CEHURD), Mr. Inziku Valenti, and Ms. Rhoda Kukiriza against the government of Uganda, the petitioners sought remedies for non-provision of basic maternal health commodities in public health facilities in Uganda that led to death of their loved ones.

CEHURD and its co-petitioners argued that the public are affected by the non-provision of basic maternal health commodities in government health facilities, and that the imprudent and unethical behavior of health workers towards expectant mothers was unconstitutional and an abuse of poor women’s rights to access health services.

The petitioners relied on evidence that;

  1. The death of a one Sylvia Nalubowa (daughter of Ms. Rhoda Kukiriza) in Mityana hospital due to non-availability of the basic maternal health kits in the district hospital and the unethical behavior of the health workers towards her violated her constitutional right to life and health.
  2. The death of Anguko Jennifer (wife to Mr. Inziku Valente) in a regional referral hospital in Arua also due to non-provision of the basic maternal health commodities and the reluctance of the health workers towards this expectant mother leading to her death was an infringement of her rights to life and health guaranteed under the constitution of Uganda.
  3. Non provision of the basic maternal health commodities to expectant mothers (evidence gathered from community health facilities) and the failure on the part of health workers to exercise the requisite health care leads to death of children hence an infringement of their rights guaranteed under the Articles 22, 33 and 34 of the constitution.

The constitutional Court absconded from hearing the merits of the case on a preliminary objection raised by the attorney General’s Lawyer that the Court did not have the authority to handle matters of that gravity. The court was of the opinion that the issues the petitioners had put to court were of a political nature that necessitated the intervention of the Executive to allocate resources to the health sector and none of courts business to intervene.

As a matter of fact and law, CEHURD, Ms. Rhoda Kukiriza and Mr. Izinku proceeded to appeal that decision to the Supreme Court on the basis that the Constitutional Court erred in law in refusing to listen to the merits of the case. It is this decision that Court will be making Judgment on Friday 30th October, 2015 at the Supreme Court of Uganda.

The Judgment is particularly important because the Ugandan Constitution does not provide for a right to health and in addition makes no commitments or priorities for health financing for primary health care for Ugandans from a legal perspective.

High-Court

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