Uganda: Why the Constitutional Court should rule on the right to health

Author: Michael Addaney
Senior Research Assistant, University of Energy and Natural Resources, Ghana

A case currently before the Constitutional Court of Uganda is providing an interesting test for how far courts can go in protecting basic human rights. Human rights are rights inherent to all human beings. Every person is equally entitled to them without discrimination. They are interrelated, interdependent and indivisible.

Universal human rights are often guaranteed by law through treaties and various sources of international law which generally oblige governments to respect, protect and fulfill human rights and fundamental freedoms of individuals or groups.

Apart from international obligations, countries have various ways of entrenching human rights. Most contemporary constitutions entrench basic human rights. Such constitutions include the 1996 Constitution of South Africa and the 2010 Kenyan Constitution. Likewise, the 1995 Constitution of Uganda contains the Bill of Rights that guarantees fundamental freedoms and basic rights including the rights to health and to life.

Significantly, the duty to respect means that states must refrain from interfering with the enjoyment of human rights. The obligation to protect means states must protect individuals and groups against human rights abuses. The duty to fulfil means that states must take positive action to facilitate the enjoyment of basic human rights. The courts play critical role in all these dimensions.

But the role of the courts, including constitutional courts, in ensuring that these rights are respected, protected and fulfilled is sometimes blocked by what is known as the doctrine of political question. This doctrine was propounded by the US Supreme Court in the early 1800s and forbids courts from deciding certain cases even if they have jurisdiction over them. The Court held that a political question was an issue that properly belongs to the decision-making authority of elected officials. These issues include budgetary allocation and the ratification of constitutional amendments. Through this doctrine, the judiciary may choose to dismiss cases even if they have jurisdiction over them. It therefore raises tension between the executive and the judiciary arms. This tension has been playing out in Uganda’s courts.

Can judges decide on the right to health?

Thirteen women die in Uganda everyday during child birth in instances that could be prevented. In 2015, the World Bank observed that Uganda records up to 343 deaths per every 100 000 live births. These deaths are due to severe bleeding, infection, hypertensive disorders and obstructed labour. Some are also due to pregnancy related diseases such as malaria, diabetes, anemia and hepatitis.

The Government of Uganda is committed to providing free health services to all citizens including women. Nevertheless, most Government health facilities are without medicine and are manned by underpaid and unmotivated staff. In 2009, Sylvia Nalubowa died while in labour in Mityana district in Uganda because she could not provide enough maternity kit (commonly known as a “mama kit” which contains a plastic sheet, razor blades, cotton wool or gauze pad, soap, gloves, cord ties, and a child health card. All delivering mothers are expected to bring it when going into labour). She also lost her second baby. In 2010, Jennifer Anguko died under similar situation.

In 2011, the Centre for Health, Human Rights and Development, a human rights-based organisation filed a petition at the Constitutional Court of Uganda seeking to hold the government to account for death of two women who had died in childbirth. The petition sought to find whether the non provision of basic minimum maternal health care, non attendance and unethical conduct of health workers towards expectant mothers constituted a violation of the constitutional rights to health and life.

The petitioner argued that these acts and omissions were responsible for unacceptable high maternal mortality rates in the country. And that these are contrary to the Constitution to the extent that they infringe several guaranteed rights. The government lawyers opposed the case from being heard by the court. They contended that the judiciary was not competent to hear a case that concerns the executive arm of government’s prerogative to distribute resources to the health sector.

The court concurred with the position of the government and subsequently dismissed the case. The Court heavily relied on the provision of article 111(2) of the Constitution which provides that the functions of the Cabinet shall be to determine, formulate and implement the policy of the Government and to perform such other functions as may be conferred by the Constitution or any other law. It finally held that the issues raised in the petition constituted a political question, not a legal question for the court to adjudicate.

Activists have criticized the Courts’ reliance on the political question doctrine. Their argument is that it is an antiquated doctrine, which should not get in the way of the court’s protection of constitutional rights, values and principles. Their views have been given credence by the fact that international recognition of the justiciability of the right to health among other socio-economic rights has been strengthened. For example, the International Commission of Jurists argues that courts have powers to exercise control over executive and legislative actions. The ICJ further observes that

whenever the rights, interests or status of any person are infringed or threatened by executive action, such person shall have an inviolable right of access to the courts and unless the court is satisfied that such action was legal, free from bias and not unreasonable, be entitled to appropriate protection.

The end of the road for the political question doctrine?

The petitioner appealed to the Supreme Court, the highest court of Uganda. It contended that the Constitutional Court erred in dismissing their case and consequently denying them the opportunity to have their case heard on its merits. In October 2015, the Supreme Court in a unanimous ruling held that the Constitutional Court erred in dismissing the case. The Court contended that the petition has critical questions that need constitutional interpretation and remitted the case back to the Constitutional Court. The decision of the Supreme Court should be lauded as it essentially confirms the proposition that the Constitutional Court cannot shirk its constitutional duty to adjudicate on constitutional disputes on the basis of the political question doctrine.

In conclusion, it must be said that the blatant application of the political question doctrine by the Constitutional Court is an impediment to the judicial enforcement of human rights. With the evolution of human rights and modern constitutionalism the role of Court ought to be the protection of human rights rather than application of the doctrines to undermine protection of fundamental rights.

About the Author:
Michael Addaney is a 2015 alumnus of the MPhil in Human Rights and Democratisation Programme at the University of Pretoria, South Africa and works as a Senior Research Assistant at the University of Energy and Natural Resources in Ghana.