By Goodluck Musinguzi
On 19th August 2020, after 9 years, the Constitutional Court gave its judgment in constitutional petition number 16 of 2011 filed by CEHURD, Prof Ben Twinomugisha, Rhoda Kukiriza, and Inziku Valente regarding the Right to Maternal Health and Right to Health broadly.
The petitioners were challenging actions and omissions of the Government of Uganda for failure to provide Minimum Maternal Health Services that include,
1- Non-provision of basic indispensable maternal health facilities,
2- Inadequate number of midwives and doctors to provide maternal health services in Uganda,
3- Inadequate budget allocation to the maternal health sector and frequent stock-outs of essential drugs,
4- Lack of obstetric care in public health facilities which results in an obstetric injury that subjects women to inhuman and degrading treatment,
5- Non-supervision of public health facilities and,
6- Unethical behavior of health workers towards expectant mothers which are said to have led to the death of women during childbirth.
Justice Chebrion Barishaki gave the main judgment which was supported by Justice Owiny-Dollo, the Current Chief Justice who was Deputy Chief Justice then, Justice Kakuru, Justice Egonda-Ntende, and Justice Madama.
In commemoration of the 13th Annual Rule of Law week symposium 2021, running under the theme “Getting on the Radar: Effective Remedies in Advancing the Right to Health in Uganda”, the Uganda Law Society invited Dr. Diana Atwine, Permanent Secretary Ministry of Health as Chief Guest.
She said the Ministry of Health recognizes the public-spirited campaign by Ugandans who utilize the services of members of the Bar through courts that pass judgments committing the Government to fulfill its minimum core obligations and guarantee the right to health as provided for under the Constitution.
“The Ministry of Health is committed to ensuring that Ugandans enjoy the Right to Health. This is why we fight hard to ensure that health services are accessible without discrimination” – Dr. Diana Atwine said.
After a long nine years of waiting, CEHURD received the judgment in the famous Petition 16 maternal health case on the morning of 19 August 2020.
The Constitutional Court agreed with their submissions and all judges accepted all the grounds of the petition. Through this judgment, the right to maternal health care (and the right to health broadly) has been granted a place in Uganda’s Constitution.
The judgment recognizes basic maternal health care services and emergency obstetric care.
- a)That the government’s omission to adequately provide basic maternal health care services in public health facilities violates the right to health and is inconsistent with and in contravention of Articles 8A, 39 and 45 read together with objectives XIV and XX of the National Objectives and Directive Principles of state policy of the Constitution;
- b)That the government’s omission to adequately provide basic maternal health care services in public health facilities violates the right to life and is inconsistent with and in contravention of Article 22 of the Constitution;
- c)That the government’s omission to adequately provide basic maternal health care services in public health facilities violates the rights of women and is (in)inconsistent and contravenes articles 33(1), (2), and (3) of the constitution.
- d)That the government’s omission to adequately provide emergency obstetric care in public health facilities violates the right to health, life, and rights to women and is inconsistent and in contravention of article 8 (A), 22, 33 (1) (2) and (3), 45, 287 read together with objectives XIV and XX of the Constitution;
- e)That the Government’s omission to adequately provide emergency obstetric care in public health facilities which result into obstetric injury subjects women to inhuman and degrading treatment and are inconsistent with and in contravention of Article 24 and 44 (a) of the Constitution
- f)In order to meet the constitutional obligation of the state to uphold the right of women and fulfill their reproductive rights, the government should in the next financial year prioritize and provide sufficient funds in the national budget for maternal health care
- g)The government of Uganda through the Minister responsible for health is directed to ensure that all the staff who provide maternal health care services in Uganda are fully trained and all health centers are equipped within the next 2 financial years (2020/2021 and 2021/2022)
- h)In order to maintain a consistent and deliberate effort to improve the status of maternal health care in Uganda, the government through the minister responsible for health is directed to compile and submit to parliament with a copy to this 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).
- i)The 3rd and 4th petitioners are awarded UGX 70,000,000/= each as general damages for the psychological torture, violation of the rights to life, health, and cruel and degrading treatment of their loved ones.
- j)The 3rd and 4th petitioners are each awarded exemplary damages of shs. 85,000,000/= for the loss suffered as a result of acts and omissions of the medical personnel at Mityana Hospital and Arua Regional Referral Hospital.
- k)The Attorney General is directed to submit a report at the end of the financial year 2020/2021 showing progress and implementation of the orders in (h)
- l)This being public interest litigation in which the petitioners did not pray for costs, no order regarding costs have been made.
Moving forward, we can work together to ensure that this judgment brings lasting change to our health system in Uganda, within the African region, and globally.
We honor Uganda Law Society’s call to promote the rule of law and the right to health as a fundamental human right. There is nothing more fundamental to the physical and mental wellbeing of Ugandans than advancing the right to health.
The real meaning of the right to health requires that all of us, acting together as a community and society, take responsibility to ensure that everyone can enjoy this right. As the Ministry of Health, we have a legal obligation to contribute to making health care available to everyone.