Landmark Petition Gives Maternal Health Rights Their Place in the Ugandan Constitution

B. CASE STUDIES

Landmark Petition Gives Maternal Health Rights Their Place in the Ugandan Constitution

Maternal mortality rates in sub-Saharan Africa remain the highest in the world.1316 In Uganda in particular, the rate has historically been one of the highest in the world, with 375 maternal deaths per 100,000 live births in 2017.1317 An average of 15 Ugandan women die from pregnancy or childbirth-related causes every day.1318 The high maternal mortality rate owes to a mix of factors, including a shortage of health workers and basic maternal health commodities in public health facilities, such as blood, gloves and health workers,1319 an inadequate budget allocated to the maternal health sector, frequent stock-outs of essential medicines and limited emergency obstetric services.1320

As a result of the increasing number of women’s deaths, the Center for Health, Human Rights and Development (CEHURD), a Ugandan non-profit, research and advocacy organisation founded in 2010, petitioned the Ugandan Constitutional Court, arguing that the lack of essential maternal health commodities in government health facilities was leading to an increase in maternal mortality and represented a violation of women’s right to health, life and freedom from cruel, inhuman and degrading treatment and women’s rights as enshrined in the Ugandan Constitution. CEHURD highlighted particular provisions in the Constitution. Objectives XIV call on the state to ensure that, “all Ugandans enjoy rights and opportunities and access to… health services.” Under Objectives XX, the state shall take all practical measures to ensure the provision of basic medical services to the population. Article 33(2) calls on the state to, “provide the facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement.”1321

In March 2011, four petitioners – CEHURD, Professor Ben Twinomugisha of Makerere University School of Law of Uganda and two other petitioners (Inziku Valente and Rhoda Kukkiriza) who had lost loved ones in childbirth – filed a Constitutional Petition (No. 16 of 2011). This stated that the government had violated the Ugandan Constitution through acts and omissions concerning maternal health services.

In April 2012, when the case first came up for hearing, the representative of the government objected to the matters before Court. This hearing’s results were disappointing: The Court dismissed the petition on the grounds that it had no mandate to determine the matter. According to the Court, the issues presented by CEHURD were matters handled by the Parliament as they related to policy formulation and budgeting, for example.

The four petitioners appealed the Court’s decision in the Supreme Court. In their appeal, the petitioners noted that Article 137 of the Constitution guarantees that interpretation of the Constitution is the mandate of the Constitutional Court. The Supreme Court thus ordered the Constitutional Court to hear the petition on its merits.1322

After a nine-year process, the Constitutional Court of Uganda passed a landmark judgement on 19 August 2020, which stated that the Ugandan government had failed to provide adequate basic maternal health care services and emergency obstetric care in public health facilities. According to the judgement, the latter violates constitutional provisions related to the rights to health and life and subjects women to cruel, inhuman and degrading treatment. The judgement specified that the Government of Uganda should prioritise sufficient funds in the national budget