Center for Health, Human Rights and Development and 2 other organizations filed a petition before Uganda’s Constitutional Court, claiming that the government had failed to provide basic healthcare, maternal commodities, and maternal healthcare to expectant mothers. The petition cited specific cases of maternal deaths that were the direct result of this failure. For example, after arriving to Sylvia Nalubowa was denied care after she was unable to afford to pay for a maternity kit for the delivery of her child. All mothers delivering children in Ugandan hospitals and clinics are expected to bring their own kits, which contain a plastic sheet, razor blades, gauze pads, soap, gloves, cord ties, and a child health card. Nurses demanded that she purchase another kit before they could attend to her and as a result, Nalubowa and her baby died. Another woman, Jennifer Anguko died after waiting 12 hours for medical attention. When she was finally taken into surgery, both she and her baby died during the procedure, with her death resulting from a ruptured uterus.
The petitioners argued that the government’s failure to provide basic maternal healthcare infringed on constitutionally guaranteed rights under Articles 22, 24, 33, 34, and 44 of the Constitution of the Republic of Uganda; the right of access to health services under Objectives XX, XIV (b), XV, and Article 8A; and its failure to uphold its international obligations, including the right to the highest attainable standard of health by virtue of Article 45 of the Constitution.
When this case was previously before the Constitutional Court, the Court ruled that the issues concern policy matters that are the preserve of the Executive, and the courts would not interfere with political questions. While the Court acknowledged the importance of the issues raised by the petitioners, it refused to interfere in what it had determined involved the prerogative of the Executive. Therefore, it dismissed the petition and suggested that the petitioners still had remedies available to them other than through constitutional interpretation.
The petitioners filed the appeal on three grounds. The first was that the Constitutional Court did not correctly apply the doctrine of political question. Second, the Constitutional Court erred in law in holding that the petition did not raise competent questions requiring constitutional interpretation. Third, the Constitutional Court erred in law when it decided that the petition called it to review and implement health policies.
The Appellants argued that Article 137(1) of the Constitution vests the Constitutional Court with powers to interpret the Constitution, so that it had powers to review any Executive act that violated or threatened any rights guaranteed by the Constitution. The Appellants argued that the Constitutional Court was obliged to entertain the petition (See Ismail Serugo v. Kampala City Council & Another, Constitutional Appeal No. 2 of 1998). They further explained that no article of the Constitution was immune from interpretation and that the Constitutional Court should always remain accessible to any person seeking interpretation of the Constitution (See the Uganda Association of Women Lawyers & Five others v. Attorney General, Constitutional Petition No. 2 of 2003)
Uganda’s Government argued that the Constitutional Court could not hear the petition because it involved a political question, and would be contrary to the principle of separation of powers. Article 90(1) of the Constitution as read with Rules 133 and 161 of Parliamentary Rules of Procedure, mandate the Parliament of Uganda to have oversight over the implementation of government policies and programs, such as health programs. Moreover, the Government of Uganda alleged that courts cannot adjudicate on matters that implicate allocation of resources, as this would be contrary to Article 112 of the Constitution and Section 7(2) of the Budget Act, 2001.
The Appellants contended as well that the Court should be guided by Article 132(4) of the Constitution and not the doctrine of the US Supreme Court decision Marbury v. Madison (1803) while dealing with political questions. Further, they stressed that the Constitution requires all government agencies and organs to respect, uphold, and promote the rights enshrined in the Constitution, so no act or omission of Government was immune from constitutional scrutiny.
Lastly, the Appellants argued that even if the doctrine of political question had application in Uganda, it could not apply in cases where constitutional rights of an individual or the constitutionality of the law were at stake (See US Supreme Court in Zivotosfsky v. Clinton Sec of State 32 S. Ct 1421 (2012) and the decision of the Supreme Court of Canada in Bertrand v. AG of Quebec (1992) 2 LRC 408).
The Supreme Court disagreed with the reasoning and conclusion of the Constitutional Court that the petition had not raised specific issues under the Constitution for its determination. The Supreme Court agreed with the Appellants that their petition had specified the acts and omissions and the particular provisions of the Constitution that were implicated. The Court found that the petition had raised competent questions for the Constitutional Court to have determined in accordance with Article 137(4) of the Constitution. The Court therefore held that the Constitutional Court had erred in holding that the petition did not raise competent questions for it to determine.
The Constitutional Court had also addressed the issue of the Executive’s discretion to formulate and determine policy, and that it was therefore a political question which the Constitutional Court could not adjudicate. The Court reviewed the Marbury decision and observed that the doctrine was an interpretive tool fashioned by courts, rather than provided for by the Constitution or legislation. The Court further observed that this tool was created to address particular political challenges in the United States system of government and was in any case not applied consistently by United States courts.
The Court held that the Constitutional Court is mandated to decide on any claim involving constitutional rights violations under Article 137(1) of the Constitution (See Ugandan Court in Paul Semogerere and Two Others v. the Attorney General, Constitutional Appeal No. 1 of 2002). The Court therefore established that the Constitutional Court could not decline the review of any petition under Article 137 of the Constitution on the grounds that it infringed on the discretionary powers of another organ of the state.
The Court found that Article 111(2) of Uganda’s Constitution confers the power to determine, formulate and implement government policies in the Cabinet, while Article 137(3)(b) grants any citizen who alleges contravention of a provision of the Constitution the right to petition the Constitutional Court for redress. Therefore, the Supreme Court rejected the Constitutional Court’s conclusion that the latter could not entertain the petition because it involved a political question, as well as the government’s argument that the laws were immune from constitutional scrutiny, because they were enacted lawfully by the Legislature.
Furthermore, the Supreme Court recognized that if the Constitutional Court were to allow the argument that the political question ousted its jurisdiction, then all acts and omissions of the Executive would be beyond its scrutiny. This would be contrary to the spirit of the Constitution which demands that state actors respect, uphold, and promote the Constitution. The Court therefore held that the Constitutional Court had erred when it abdicated its constitutional duty to hear and decide on the allegations of violations of constitutional provisions by the Executive, because Executive acts and omissions are not protected from constitutional challenge. The Court also held that the political question doctrine was of limited application in Uganda, and that the Constitutional Court had erred in dismissing the petitioners’ claim on the ground that it raised a political question without hearing the merits of the case.
The appeal succeeded and the matter was remitted to the Constitutional Court for determination of the merits.