Ma­ter­nal Health Judge­ment: Im­pli­ca­tion for Par­lia­ment and Health Rights in Uganda

By: NAKIBUUKA NOOR MU­SISI

The Supreme Court of Uganda will on Fri­day 30th Oc­to­ber be de­liv­er­ing a long awaited Judg­ment in a land­mark ma­ter­nal health case, Con­sti­tu­tional Pe­ti­tion No. 16 of 2011. Four years have passed since the case was filed, with over 16 women con­tin­u­ing to die every day.

This pe­ti­tion filed in March 2011 by the Cen­ter for Health, Hu­man Rights and De­vel­op­ment (CE­HURD) averred among oth­ers that the Con­sti­tu­tion is the Supreme Law of the land un­der Ar­ti­cle 2(1) and the non-pro­vi­sion of ba­sic min­i­mum ma­ter­nal health care and the con­stant ne­glect by health work­ers to­wards ex­pec­tant moth­ers which re­sults into un­ac­cept­able high ma­ter­nal mor­tal­ity rate are un­con­sti­tu­tional to the ex­tent that they in­fringe sev­eral rights guar­an­teed un­der the Con­sti­tu­tion.  The Con­sti­tu­tional Court did not find merit in the case and ruled in favour of the At­tor­ney Gen­eral who had ar­gued that un­der the “po­lit­i­cal ques­tion” doc­trine, Courts had no man­date to hear and de­ter­mine such a pe­ti­tion. The ‘Po­lit­i­cal Ques­tion’ doc­trine gained more force in the US Supreme Court case of Baker v Carr 369. US. 186 (1962), where the Supreme Court ruled that Courts are man­dated to de­cide on rights of in­di­vid­u­als and not to en­quire how the ex­ec­u­tive per­forms du­ties in which they have a dis­cre­tion. The Court fur­ther noted that ques­tions in their na­ture po­lit­i­cal, or which are, by the Con­sti­tu­tion and laws sub­mit­ted to the ex­ec­u­tive, should never be en­ter­tained by the ju­di­ciary.  How­ever, this doc­trine has over time evolved en­sur­ing jus­ti­cia­bil­ity of some po­lit­i­cal ques­tions. The Pe­ti­tion­ers ap­pealed this de­ci­sion as the Con­sti­tu­tional Court has the sole man­date of en­forc­ing rights and in­ter­pret­ing the Con­sti­tu­tion ac­cord­ing to Ar­ti­cles 50 and 137.

The fil­ing of this pe­ti­tion saw Par­lia­ment act—it worked with Civil So­ci­ety Or­ga­ni­za­tions un­der their Um­brella of Coali­tion to Stop Ma­ter­nal Mor­tal­ity in Uganda, and in­deed passed a res­o­lu­tion on 15th De­cem­ber 2011 urg­ing gov­ern­ment to among oth­ers strictly en­force ma­ter­nal death au­dits, de­velop a pol­icy to com­pen­sate fam­i­lies of moth­ers that had died of pre­ventable ma­ter­nal deaths and re­port these ma­ter­nal deaths to Par­lia­ment.

In ad­di­tion, Par­lia­ment ex­er­cised its over­sight role and blocked the pass­ing of the fi­nan­cial year bud­get 2012-13 un­til UGX 49.5 bil­lion was al­lo­cated to the health sec­tor to un­der­take sub­stan­tial health worker re­cruit­ment ex­er­cise in or­der to in­crease the num­ber of pri­or­ity cadres of pro­fes­sional health work­ers in dis­trict health fa­cil­i­ties. This was fol­lowed up by Civil So­ci­ety and in­deed many health fa­cil­i­ties re­ceived health work­ers. The ques­tion of main­tain­ing them in these fa­cil­i­ties comes back to the 10th Par­lia­ment and we rec­om­mend that it should work hard to im­prove their work­ing con­di­tions if ma­ter­nal deaths are to be avoided.

This case in­deed pre­sented an op­por­tu­nity for par­lia­ment and we be­lieve that their role in the strug­gle to end ma­ter­nal mor­tal­ity has just be­gun. The ques­tion is what will the judge­ment mean for this 9th Par­lia­ment and the up­com­ing 10th par­lia­ment? Of course this is re­gard­less of the out­come of the pe­ti­tion. For ex­am­ple, if the judge­ment is neg­a­tive, Par­lia­ment will have an op­por­tu­nity to tighten and strengthen its strat­egy in terms of en­sur­ing that moth­ers do not die in labour—through leg­is­la­tion aimed at pro­vid­ing a spe­cific ar­ti­cle on the right to Health in the Con­sti­tu­tion or us­ing the judge­ment to come up with a spe­cific law on the re­al­iza­tion of the right to health in Uganda, bud­get al­lo­ca­tion and pri­or­i­tiz­ing health in what­ever they do. If the judg­ment is pos­i­tive Par­lia­men­tar­i­ans will be vi­tal part­ners to sup­port the case as it pro­ceeds in Con­sti­tu­tional Court, and to en­act what­ever pol­icy out­comes the fi­nal Con­sti­tu­tional Court rul­ing re­quires.

It is im­por­tant to note that ac­cord­ing to re­cent re­search done by Co­lum­bia Uni­ver­sity in col­lab­o­ra­tion with the Coali­tion to Stop Ma­ter­nal Mor­tal­ity, vot­ers iden­ti­fied health as their pri­or­ity and vowed never to vote any­one into power if such a can­di­date will not stream line health on their agenda (see http://​www.ce­hurd.org/​2014/​09/​pri­or­i­tize-health-or-i-do-not-vote-for-you-come-2016-vot­ers-lament/). Like­wise, the re­cent na­tional sur­vey by the Vi­sion Group in the “Peo­ples’ Man­i­festo” ex­er­cise de­ter­mined that sur­vey re­spon­dents pri­or­i­tized health first among is­sues of con­cern as vot­ers.

The time to act is now. The sup­port given since 2011 by Par­lia­ment in a bid to end pre­ventable deaths needs to be re­vi­tal­ized. At­tend­ing the court ses­sion on Fri­day 30th Oc­to­ber to re­ceive the judge­ment will pro­vide a plat­form for mem­bers of par­lia­ment to have a strong mes­sage on the need to have a spe­cific leg­is­la­tion on the right to health or have a spe­cific pro­vi­sion of the same in the Con­sti­tu­tion and it will pave ways to have them plan for the end to this pre­ventable cri­sis with ev­i­dence. Pre­ventable ma­ter­nal death in Uganda is a pub­lic health and hu­man rights cri­sis; We how­ever still have hope that with new strate­gies we can get some­where.

Fri­day 30th Oc­to­ber, 9:30am- at Supreme Court- Kololo- To­gether we can achieve.

Not an­other need­less ma­ter­nal death.