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).