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.