On 30 October the main courtroom in Uganda’s supreme court was packed with people waiting – spilling into the stairwells and hallways adjoining both sides of the large room. I was sharing half of my seat with a colleague. Civil society outrage at Uganda’s crisis of maternal mortality – chronically ignored by government – was what had filled the courtroom with activists.
The case, petition number 16 of 2011, had been filed at the constitutional court in 2011. The families of two women who had died in childbirth, Sylvia Nalubowa and Jennifer Anguko, and the Centre for Health, Human Rights and Development (CEHURD) along with prominent academics including Makerere University law professor Ben Twinomugisha, sued the government of Uganda, arguing that by not providing the essential health services the women required to save their lives, it was violating constitutionally enshrined health rights.
My organisation, Health GAP, worked with Ugandan activist partners to form the Coalition to Stop Maternal Mortality in Uganda, bringing the full weight of grassroots advocacy to an unnecessary tragedy typically brushed under the carpet by Ugandan policymakers.
The campaign was infectious. Ugandans, often alienated and demoralised by a politics not only rife with scapegoating, intimidation, state violence and corruption but also indifferent to health as a political issue, were emboldened by an opportunity to confront the most powerful Ugandan decision-makers directly – through the judiciary.
Unfortunately the case was dismissed in 2012 in a controversial ruling by the constitutional court. The attorney general argued that the constitutional court had no authority to hear a case that might affect health policy because that is the sole domain of the executive. The justices concurred, and threw out the case. This narrow view of the role of the judiciary in responding to health and human rights issues is particularly galling in Uganda, where despite the public health crisis triggered by preventable maternal deaths, the executive has consistently refused to increase health sector spending or provide other remedies.
CEHURD and the families of the deceased women appealed the ruling to the supreme court, with the support of the Coalition to Stop Maternal Mortality in Uganda. During the intervening period, we also advocated outside the confines of the judiciary, leveraging the attention garnered by the litigation to spur parliamentarians to act. In 2012, for example, we secured an unprecedented 49.5bn Ugandan shillings ($13m) in supplementary funding to recruit and retain 6,172 new health workers – initial progress that would have been impossible without the focus on maternal deaths the constitutional court case had generated.
The supreme court’s ruling on 30 October was a unanimous decision to overturn the constitutional court’s dismissal of the case. In their ruling, the justices concluded that the constitutional court had erred when it argued that it had no mandate to consider the health rights case, and that, according to the remarks of Chief Justice Katureebe, the constitutional court is required to determine whether the Ugandan government took all measures to provide maternal health services.
Now the constitutional court must hear the case on its merits. And not a moment too soon because in February next year Uganda will hold general elections. Civil society has launched a 2016 Health Manifesto – a full court press to challenge candidates, including President Yoweri Museveni, who has ruled for 29 years, to commit to 10 priority demands on the campaign trail. Recent polls show that health service delivery is the highest priority for Ugandan voters, but politicians have largely failed to use their political power to improve access to health services for poor Ugandans.
This court case could help change that for good. Depending on the outcome of the case, the constitutional court will have the opportunity to order the government to implement consequential, life saving remedies for poor Ugandan women and for a public health sector that has virtually collapsed due to neglect. Moreover, the case might be argued against the backdrop of a heated presidential election, with the preventable tragedy of Anguko and Nalubowa’s deaths redirecting the focus of petty and often toxic campaigning.
And while it will come too late for Jennifer Anguko and Sylvia Nalubowa, in a crowded courtroom in the months to come, real justice could finally be delivered by the constitutional court for countless Ugandan women like them.