Petitioners claimed that the lack of provision of basic health maternal commodities in Government Health Facilities and the negligent, unethical behavior of health workers toward pregnant women in those facilities resulted in violations of the Constitution of the Republic of Uganda (the “Constitution”). Specifically, the petitioners claimed violations of the right to health and the right to life as guaranteed in the Constitution. They also sought compensation for families who had suffered the loss of an expectant mother, and specifically for two families who joined in the petition.
According to the petitioners, the Government failed to commit adequate resources, including human resourses and medicines, to providefor the needs of pregnant women in Government health facilities. Uganda is a member of the World Health Organization’s Safe Motherhood Programme, which developed the Mother-Baby package in 1994 to assist countries in developing appropriate levels of care to reduce maternal and newborn mortality. The minimum expenditure for the Government per capita established in the Mother-Baby package was US$1.40. At the time of the petition, the Ugandan Government was spending only US$0.50 per capita on maternal and newborn health care. The petitioners claimed that these circumstances amounted to a violation of the right of access to health services under Article 8A of the Ugandan Constitution.
Petitioners argued that the failure to provide basic maternal healthcare infringed constitutionally guaranteed rights under Articles 22, 24, 33, 34 and 44 of the Constitution, as well as the right of access to health services under Objectives XX, XIV (b), XV and Article 8A. Further, Petitioners challenged the government for failing to uphold its international obligations, including the right to the highest attainable standard of health pursuant to Article 45 of the Constitution.
Respondent objected that the Court could not adjudicate on the issues raised by Petitioners because they involved political questions. Respondent contended that the Court would be interfering with political discretion, which by law was reserved for the Executive and the Legislature.
The Court examined the following issues:
- Whether the right to the highest attainable standard of health is a constitutional right pursuant to Article 45 of the Constitution.
- Whether the inadequate human resources for maternal health and lack of emergency obstetric care services at health centres are infringements of the right to health.
- Whether non-provision of basic maternal healthcare services in health facilities contravenes Article 8A or Objectives XIV and XX of the Constitution.
- Whether non-provision of basic maternal healthcare packages in government hospitals resulting in the deaths of pregnant women and their children is a violation of the right to life as guaranteed under Article 22 of the Constitution.
- Whether health workers’ failure to attend to pregnant women subjects women to degrading and inhuman treatment, in violation of Articles 24 and 44(a) of the Constitution.
- Whether the high rates of maternal mortality in Uganda contravene Articles 33(1), (2) and (3) of the Constitution.
- Whether the families of Sylvia Nalubowa and Jennifer Anguko, who died in hospital due to non-availability of basic maternal commodities, are entitled to compensation.
Pursuant to Article 137 of the Constitution, courts have jurisdiction on matters where the petition, on its face, shows that an interpretation of a provision of the Constitution is required. However, if the issues fall under the doctrine of a ‘political question,’ as was argued by Respondent, the Court would not assume adjudication. The Court therefore inquired whether the issues presented in this case fell under this doctrine.
The Court said the doctrine of a ‘political question’ emanated from the concept of the separation of powers articulated in Marbury v. Madison, 5 US. 137, and is about the appropriateness of courts interfering in decisions of other branches of government. The doctrine therefore prevents courts from encroaching on decisions which are the purview of other branches of government, even if it could assume jurisdiction.
The Court then reviewed provisions of the Constitution that describe the role of each branch of government, and then applied this to the facts. The Court stated that although it may have been true that government had not allocated enough resources to maternal healthcare services, the issues raised in this case concern policy matters that are the preserve of the Executive. While the Court acknowledged the importance of the issues raised by Petitioners, it refused to interfere in what it had determined involved the prerogative of the Executive. It further justified its stance by suggesting that the petitioners still had remedies available to them other than the route of constitutional interpretation.
The Court held that the petition raised acts and omissions that fell under the doctrine of a ‘political question’, and the Court could not find any competent question requiring constitutional interpretation.
Uganda, like many African countries, adopted a Constitution that recognizes social and economic rights including the right to health. Even though in some constitutions these rights are characterized as ‘policy’ rather than ‘rights,’ and written in language that connotes aspirations rather than immediately realizable rights, they nevertheless create legitimate expectations that the government would be held accountable for their realization.
In addition, the provisions of the constitutions are rarely read individually and in isolation. For instance, the provision stated above, read with Article 33 (3) — which says that “The State shall protect women and their rights, taking into account their unique status and natural maternal functions in society” — creates legal obligations on the state to ensure that all expectant mothers receive basic maternal healthcare.
The petition brought before the Uganda Constitutional Court depicts a scenario that is perhaps all too common in Sub-Sahara Africa. Government-run health facilities are frequently if not chronically underfunded, understaffed, lack the basic commodities and fail to provide the requisite standard of care. Believing that the constitutional rights ought to mean something for the women of Uganda, Petitioners’ case arose out of a legitimate expectation that the state be held accountable to meet the obligations stipulated in the Constitution. Their case was not theoretical because they provided evidence of two maternal deaths that they argued could have been avoided if only the government had fulfilled its duty to provide basic maternal healthcare and services. However, while acknowledging the fact that there was government failure, the Court chose to rely on the ‘politics’ argument and avoided delving into the merits of the case.
Courts in other jurisdictions in Africa have also avoided enforcement of social and economic rights, preferring to rely on the doctrine of the separation of powers, or outright refusal to adjudicate on such rights because they are regarded as principles of policy and therefore not justiciable nor enforceable; see Kingaipe and Chookole v. Attorney General, 2009/HL/86 (High Court of Zambia).
Other jurisdictions, however, have approached social and economic rights differently. In Sandesh Bansal v. Union of India and others (Writ Petition No. 9061/2008), the petitioner alleged that the government had failed to implement a program to reduce high maternal mortality. The High Court of Madhya Pradesh (India) held that the shortage of infrastructure and personnel had resulted in the ineffective implementation of the program, resulting in unnecessary deaths of mothers, and that this was a violation of the right to life as guaranteed in the Constitution of India.
In another case from India, the Delhi High Court (Writ Petition (C) 5913/2010) on its own motion decided a case about a destitute woman who died on the street while giving birth to a baby girl. The Court noted that the government provided inadequate medical services to destitute pregnant and lactating mothers, and ordered the government to review its funding of shelters for the destitute. This judicial reasoning contrasts glaringly with the Ugandan decision.
The Ugandan decision is an example of how courts have failed to advance realization of human rights for many vulnerable persons in African countries, on the pretext that social and economic rights are merely aspirations or unduly resource-consuming to realize. Many people who rely upon the courts as the final vindicator of rights are let down because of this attitude. The Court did not even raise questions for the Executive to address on why the two women died in circumstances that were avoidable, or what steps the government was taking to realize its obligations to provide adequate healthcare. The significance of this decision therefore lies in its blatant failure to hold the government accountable to protect the right to healthcare of expectant mothers, while at the same time characterizing the government as an all-powerful and untouchable maker of maternal health policies, even though this right was guaranteed to the women of Uganda in the Constitution.