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Constitutional Court ruling on death of pregnant mothers

The court cited the provisions of the International Covenant on Economic, Social and Cultural Rights and the African Charter on Peoples and Human Rights and showed that the government should ensure that it provides adequate equipment and supplies for preventive, diagnostic, and curative services, including training of medical staff and development of treatment guidelines and protocols for the management of maternal complications.

The court emphasized that government cannot under any circumstance justify noncompliance with the core obligations which derive from the economic, social, and cultural rights of the individual and group.

The court also addressed the question of how the progressive realisation for maternal health care should be measured in the context of Uganda. While the court was aware that progressive realisation takes into account a state’s available resources, the court noted that it was not sufficient for the state to merely argue that there are challenges impeding implementation of policies.

The state had to demonstrate the measures or steps taken to realize the provision of maternal health care services to women in Uganda. The mere expression of sentiments in reports made to attract donor funding could not measure up to the required test of reasonable steps, noted the judges.

The court also ordered the government to compile and submit to Parliament and send a copy to court, an audit report on the status of maternal health in Uganda at the end of each of the next two financial years.

Mulumba said this was one of the most progressive steps that the Ugandan judiciary had demonstrated in the history of social, economic and cultural rights in Uganda.

“This court ruling demonstrates that public litigation continues to be a viable option for protection of social, economic, and cultural rights, as well as ensuring access to justice, despite being a lengthy process,” Mulumba said.

Mulumba told The Independent on Sept. 09 that by court inviting itself to ensure that the government implements its recommendations, Ugandan mothers will see some positive action in the health facilities.

But when The Independent asked the Ministry of Health publicist, Emmanuel Ainebyoona, if the ruling has attracted any debate in the corridors of the ministry, he referred this reporter to the ministry’s permanent secretary, Dr. Diana Atwine. She did not pick our phone call or respond to our queries on WhatsApp.

Mulumba said should the government ignore the court’s recommendations; they will be ready to sue the relevant government agencies for “contempt of court.” Mulumba told The Independent that CEHURD and its partners are now following up with senior officials in government while also doing a cost implication study of the ruling.

Russell added: “Perhaps the government believes that this ruling will just be ignored by civil society. Nothing could be further from the truth. Now the next chapter of our advocacy starts–holding the government accountable for implementation of these orders from the Judiciary.”

Going forward, Kwagala told The Independent that with the Constitutional Court ruling, agents of government can be held personally responsible for the mothers’ deaths.

“With the new human rights enforcement law, even individuals in public offices can be sued for their actions or lack thereof. This case has opened us to an era of health law and practice,” she said.

“Women shouldn’t have to just sit back whilst some public official sits on his or her job. Our lives depend on it,” she added, “Giving birth shouldn’t be a death challenge. We can reduce mortalities if our health facilities are adequately financed.”

Uganda is a nightmare for pregnant mothers

While Uganda has made international commitments to reduce maternal mortality, it has failed to improve performance on key maternal health indicators. And even when the Ministry of Health has published roadmaps to reduce maternal mortality; there has not been a consistent or meaningful reduction in the leading causes of maternal death.

In many surveys done by independent global maternal health monitoring groups like Save the Children on the state of the world’s mothers, Uganda is described as one of the toughest places on earth to give birth. In 2013, one such survey ranked Uganda 132nd out of 176 countries.

The 2016 Uganda Demographic Health Survey puts the number of women who die due to maternal-related complications most of which are preventable at 336 per 100,000 births.  When broken down further, health experts say at least 15 mothers die every day while attempting to give birth.

In one week that number rises to 105 mothers; in one month, 420 mothers die while in one year, that number goes up to 5040 mothers dying across Uganda. Over the last nine years since the petitioners filed their case in Uganda’s courts, 45, 360 have perished across the country.

Several factors contribute to persistently high maternal mortality rates in Uganda including; lack of staff expertise, staff shortage and worker absenteeism, inadequate infrastructure and lack of basic medical equipment and supplies, including stock-outs.

But other experts add that among the direct causes of maternal deaths are what they term as the “three delays.” According to the World Health Organisation, these delays include; delays in making a decision to seek care, delays in reaching a health facility and delays in receiving health care.  For many women, financial constraints play a part in delays to decide to seek care and delays in getting to health facilities.

However, the judges noted that even though the argument that the provision of services depends largely on the availability of resources in the country, this should not be used as a blanket excuse and defence for failure to provide basic services to save life because provision of some of these services do not require money.

“It did not require this state to spend money to save the life of Sylivia Nalubowa at Mityana Hospital,” reads part of the 88-page judgment.

“The staff wanted a bribe and because the family did not have money and the bribe was not paid, the doctor delayed to come to hospital and as a result, Nalubowa bled to death,” it adds.

“Corruption killed Nalubowa and not lack of resources.”

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