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Constitutional Court ruling on death of pregnant mothers

What Ugandan doctors, nurses should know about it

Kampala, Uganda | RONALD MUSOKE | On Aug. 19, the Constitutional Court passed a landmark judgment in which it said the government’s failure to adequately provide basic maternal health care services especially emergency obstetric care in public hospitals violates the right to health, the right to life, and the rights of women as guaranteed under the 1995 Constitution.

Women’s rights groups that work to ensure the government improves the environment in which mothers give birth continue to celebrate the Constitutional Court ruling.

Primah Kwagala, the head of Women’s Probono Initiative, a Kampala-based civil society organisation told The Independent she was “overjoyed by the judgment.”

“Giving birth is a service we women offer our country. The government owes us more than just promises and paper work in policy documents,” she told The Independent on Sept. 11.

“Child birth is not a privilege, it is a right for every woman and government has an obligation to ensure that every woman of reproductive age can have access to essential maternal services such as mama kits, skilled birth attendants free of charge,” she added.

Kwagala told The Independent that she was impressed by the court’s notice of the fact that denial of basic maternal health services such as MaMa kits, surgical sutures, syringes and blood is discrimination which is tantamount to gender based violence orchestrated by the government.

One of the judges, Barishaki Cheborion, noted that only women perform the natural maternal function in society and the steps taken by the government do not take into account the disadvantaged and vulnerable position of women and the preventable deaths deprive women of their right to enjoy and realise their sexual reproductive rights.

“This is the court acknowledging state sanctioned violence in our community; health workers and public officers ought to take the plight of women and girls more seriously. We deserve better from our government,” Kwagala said.

Asia Russell, the executive director of Health GAP (Global Access Project) has been following the petition keenly over the years. She told The Independent on Sept. 11 that the Constitutional Court ruling is a ‘seismic shift,’ and is particularly compelling given the government’s callous response to COVID-19 which has resulted in a spike in preventable maternal deaths.

Russell told The Independent that powerful pressure from an unprecedented coalition of activists and lawyers made this victory happen.

“The Judiciary has finally agreed that the epidemic of preventable maternal deaths violates the highest law of the land, and the culprit has been the government’s lack of political will,” she said.

“By ordering the government to fully fund clinics with the health workers and essential health commodities needed to save women’s lives, the court is acknowledging that the current unacceptable reality can change.”

Jackie Asiimwe, a lawyer and women’s rights activist told The Independent that they will be watching the government keenly because accountability is required. She noted that it is high time the government got serious with implementing whatever is put in the Constitution.

“We shall watch the government’s commitment by scrutinising the budgets,” Asiimwe said. She said civil society will be looking out for Ministry of Health and finance in relation to compliance with the Constitutional Court ruling.

Nine year wait

The Constitutional Court’s judgement followed a nine-year-long process in which the Centre for Health, Human Rights and Development (CEHURD), a Kampala-based non-profit together with Prof. Ben Twinomugisha of Makerere University School of Law and two other petitioners went to court following the death of two Ugandan mothers at two different government hospitals.

One case involved the late Sylvia Nalubowa in 2009. She died at Mityana Hospital, a government hospital in central Uganda, following an obstructed labour.

Another expectant mother, Jennifer Anguko, who was a local government councilor in the northwestern city of Arua died at Arua Regional Referral Hospital 15 months later. She also suffered an obstructed labour. In both cases, there were reports that medical staff had neglected their duties and demanded money before attending to the women.

But when the case opened, the Attorney General argued that, under the doctrine of separation of powers, the judiciary had no right to dictate to the executive on matters related to budget allocation and service delivery.

Dissatisfied with the decision, the petitioners filed an appeal in the Supreme Court in 2013. The petitioners argued that the Constitutional Court made a legal error when they applied the political question doctrine. In 2015, the Supreme Court compelled the Constitutional Court to hear the petition again. The Supreme Court directed the Constitutional Court to hear and determine the petition on its merits.

But the petition dragged on until Aug.19 this year when five judges found the government culpable for underfunding maternal health care. They said this was unconstitutional.

The judges awarded damages to the relatives of the dead mothers. Nalubowa’s mother in law and Anguko’s husband were each awarded Shs 70 million for the “psychological torture” they experienced because of the cruel and degrading treatment of the two women.  They were also awarded exemplary damages of Shs 85 million each for the loss suffered as a result of the behaviour of the medical staff at the two hospitals involved.

In its judgment, the Constitutional Court directed the government to prioritize and provide adequate funds in the national budget for maternal health care. The Minister of Health was directed by the court to ensure that all health care workers who provide maternal health care services across the country get fully trained. All health centres, court said, will have to be properly equipped within the next two financial years (2020/2021 and 2021/2022).

Moses Mulumba, the executive director of CEHURD told The Independent that the Aug. 19 ruling is critical for several reasons. First, the right to health and access to basic maternal health commodities within the context of rights are now justifiable under the constitution.

Mulumba explained that chapter four of Uganda’s Constitution is silent on the right to health, but makes relatively strong provisions on the rights of women under article 33. He says the furthest the right to health could be inferred in Uganda’s Constitution is under the “National Objectives and Directive Principles of State Policy,” which are always argued as unenforceable.

The court agreed with the petitioners that the 19th and 20th objectives, read together with Article 8A of the Constitution, oblige the government to provide health and basic medical services to Ugandans. Mulumba added that the case clarifies what the concept of minimum core obligations means from the perspective of the right to health and access to basic maternal health care services in Uganda.

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