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By | Moses Mulumba – Executive Director Center for Health Human Rights and Development.

On August 19, 2020, the Constitutional Court of Uganda passed a landmark judgment in which it pronounced that the Government of Uganda’s omission to adequately provide basic maternal health care services and emergency obstetric care in public health facilities violates the right to health, the right to life and the rights of women as guaranteed under the country’s Constitution.

Uganda’s maternal mortality rate is unacceptably high, at 343 per 100,000 live births. This means that Uganda loses 15 women each day from pregnancy and child birth related causes. 

In its judgment, the Court directed the Government of Uganda to prioritize and provide sufficient funds in the national budget for maternal health care. The Court also ordered, through the Health Minister, that all the health care workers who provide maternal health care services in Uganda be fully trained and all health centres be properly equipped within the next 2 financial years (2020/2021 and 2021/2022). 

This judgement followed a nine-year-long process in which the Center for Health, Human Rights and Development (CEHURD) together with Prof. Ben Twinomugisha of Makerere University School of Law and two other petitioners that had lost loved ones in childbirth, in a manner that they described as violating the rights of women in Uganda

When the original petition first came up for hearing in 2012, the Attorney General of Uganda, representing the Government, raised a preliminary objection to the petition on the ground that the case raised a political question, and therefore under the purview of the political organs of government and not the judiciary.   The judges upheld this objection and hence threw out the case in June 2012. Dissatisfied with this decision, the petitioners filed a successful appeal to the Ugandan Supreme Court, which is the highest judicial body, under Constitutional Appeal No. 1 of 2013 In this appeal, the petitioners argued that the Constitutional Court made a legal mistake when they applied the political question doctrine. The Supreme Court was persuaded by this argument and directed the Constitutional Court to proceed to hear and determine the petition on its merits. 

The August 19, 2020 decision from the Constitutional Court is critical for a number of reasons. First, it places the right to health and access to basic maternal health commodities within the realm of rights that are now justiciable under Uganda’s Constitution. Chapter four of Uganda’s Constitution is silent on the right to health, but makes relatively strong provisions on the rights of women under article 33. The furthest the right to health could be inferred in Uganda’s Constitution is under the National Objectives and Directive Principles of State Policy, which are always argued as unenforceable. The Court agreed with the petitioners that Objectives XIV and XX, read together with Article 8A of Uganda’s Constitution, oblige the Government to provide health and basic medical services to the people of Uganda. 

Secondly, the case clarifies what the concept of minimum core obligations means from the perspective of the right to health and access to basic maternal health care services in Uganda. The Court cited the provisions of the International Covenant on Economic, Social and Cultural Rights and the African Charter on Peoples and Human Rights and indicated that the Government of Uganda should ensure that it provides adequate equipment and supplies for preventive, diagnostic, and curative services, including training of medical staff and development of treatment guidelines and protocols for the management of maternal complications. The Court emphasized that the Government cannot under any circumstance justify noncompliance with the core obligations which derive from the economic, social, and cultural rights of the individual and group. 

Thirdly, the Court also addressed the question of how progressive realization for maternal health care should be measured in the context of Uganda. While the Court was mindful that progressive realization takes into account a State’s available resources, it noted that the unimplemented policies and strategies in Uganda’s case, as demonstrated by the petitioners, could not be said to be expeditious and effective steps towards the realization of the right to health. The Court held that it was not sufficient for the State to merely argue that there are challenges impeding implementation of policies. The State had to demonstrate the measures or steps taken to realize the provision of maternal health care services to women in Uganda. The mere expression of sentiments in reports made to attract donor funding could not measure up to the required test of reasonable steps. The Court found that the statistical data advanced by the Government did not demonstrate reasonable measures taken when the leading causes of maternal deaths in Uganda – including haemorrhage, high blood pressure, unsafe abortion, and infection — remained the same. 

In conclusion, despite the long and cumbersome process of litigating this case, the judges finally gave the rights to accessing basic maternal health care services and obstetric care in public health facilities in Uganda a place in the Constitution. 

The Court’s order that the Government compile and submit to Parliament, with a copy to the Court, an audit report on the status of maternal health in Uganda at the end of each of the next two financial years (2020/2021 and 2021/2022) is one of the most progressive steps that the Ugandan judiciary has demonstrated in the history of social, economic, and cultural rights in Uganda. 

This Court ruling demonstrates that public litigation continues to be a viable option for protection of social, economic, and cultural rights, as well as ensuring access to justice, despite being a lengthy process. 

A version of this article was published in the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics Blog and the Daily Monitor Newspaper.

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