Four petitioners—including the Center for Health, Human Rights & Development (CEHURD) and two family members of women who died during childbirth—appeal the Constitutional Court’s dismissal of their petition in which they alleged that the government violated the Constitution by failing to provide basic maternal health services and that health workers’ negligence led to the death of expectant mothers during childbirth.
In 2011, the petitioners filed a constitutional petition alleging that the government had violated the Ugandan Constitution through acts and omissions with regard to maternal health services. More specifically, the petitioners contended that the government had failed to provide basic maternal health services and to adequately budget for maternal health and that the unethical behavior of health workers led to the preventable deaths of expectant mothers during childbirth. According to the petitioners, this violated the rights to life and health; women’s rights; and the right to be free from torture, cruel, inhuman and degrading treatment or punishment. Accordingly, the petitioners sought declarations to the effect that the acts/omissions of the respondents agents were in violation of the stated constitutional rights.The petitioners also sought an order that the families of the expectant mothers who had died during childbirth receive compensation for the violation of their rights. The Constitutional Court upheld the Attorney General’s preliminary objection and dismissed the petition on the grounds that: (1) the petitioners had not raised a question requiring constitutional interpretation; and (2) the court lacked the authority to consider the allegations because they raised a political, and therefore, non-justiciable question. On appeal, the petitioners challenged these holdings and also argued that the Constitutional Court had erroneously found that the petition required the court to “review and implement . . . health policies.”
In a unanimous decision, the Supreme Court ordered the Constitutional Court to hear the petition on its merits. The Supreme Court held that the petitioners had, as required by Article 137 of the Constitution, alleged that specific acts and omissions of the government and its workers were inconsistent with and violated the Constitution. As such, the petitioners had raised questions that the Constitutional Court should hear in order to determine whether the allegations mandated redress. Additionally, the Supreme Court held that “the political question doctrine has limited application in Uganda’s current Constitutional order and only extends to shield both the Executive arm of Government as well [as] Parliament from judicial scrutiny where either institution is properly exercising its mandate, duly vested in it by the Constitution.” The Court found that under Article 137, the Constitutional Court had a duty to adjudicate the petitioners’ claims regarding the constitutionality of the acts of the Executive and its agents. Consequently, the political question doctrine did not bar such review. Rather, the Constitutional Court had “mandatory jurisdiction” to hear the petition on its merits before deciding whether it raised a political question.
In a concurring judgment, the Chief Justice further emphasized that separation of powers is not absolute and that the petition raised constitutional interpretation issues regarding the right to health and medical services (Objectives XIV and XX), life (Article 22), and, more broadly, fundamental rights and other human rights and freedoms (Chapter 4). Thus, the Constitutional Court would need to consider where the right to health falls in the Constitution and whether the government had taken “all practical measures to ensure basic medical services” as required under Objective XX. However, the allegations of negligence and rude health worker behavior did not require constitutional interpretation and would be properly litigated in the High Court.
Since the Constitutional Court already has the original file for the petition, they will only need to recall it and assign a hearing date for the case as directed by the Supreme Court. Litigants and other stakeholders however need to closely follow up the matter and ensure that the hearing is not unduly delayed.
This case is highly significant in a country which, according to the World Health Organization, has a maternal mortality ratio of 310 (per 100,000 live births) (2010). The litigation and accompanying advocacy have highlighted the large number of preventable maternal deaths and have raised questions regarding governmental obligations with regard to health.
Furthermore, by holding that the political question doctrine has limited applicability in Uganda, the Supreme Court has emphasized that government policy, acts, and omissions in the health and other sectors are subject to judicial review to ascertain their constitutionality. In so doing, the judiciary has protected access to courts and taken another step towards recognizing the justiciability and enforceability of the right to health and other socio-economic rights. The case also restores confidence to potential ESCR litigants who had been discouraged by the precedent set by the Constitutional Court.
(Updated November 2015)
Center for Health, Human Rights & Development (CEHURD), Coalition to Stop Maternal Mortality in Uganda, and ESCR-Net member, the Initiative for Social and Economic Rights (ISER). CEHURD, one of the petitioners , had put together a team of lawyers to discuss the arguments and frame the appeal issues in this case. ISER was part of that legal advisory team.
