On Aug. 19, last year, the Constitutional Court passed a landmark judgment in which it said the government’s failure to adequately provide basic maternal healthcare 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 celebrated the Constitutional Court ruling.
Primah Kwagala, the head of Women’s Probono Initiative, a Kampala-based civil society organisation, was “overjoyed.”
“I’m impressed by the court’s notice of the fact that denial of basic maternal health services such as MaMa Kit, surgical sutures, syringes and blood is discrimination which is tantamount to gender-based violence orchestrated by the government,” she told The Independent at the time.
The Constitutional Court’s judgment followed a nine year long process in which CEHURD together with Prof. Ben Twinomugisha of Makerere University’s School of Law and two others sued the government for underfunding maternal healthcare in 2011. They argued that the government’s actions were unconstitutional.
Nalubowa’s death was one of the cases they cited. The other was of another expectant mother, Jennifer Anguko, who was a local government councilor in the northwestern city of Arua who died at Arua Regional Referral Hospital 15 months after Nalubowa.
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 the Constitutional Court agreed with the Attorney General’s argument 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 directed the Constitutional Court to hear the petition again and determine it on its merits.
But the petition dragged on until August 2020. That is when five judges found the government culpable for underfunding maternal healthcare. They said this was unconstitutional.
The judges awarded damages to the relatives of the dead mothers. Rhoda Kukiriza, Nalubowa’s mother in law and Anguko’s husband, Valente Inziku, 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 damaged 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 healthcare.
The Minister of Health was directed by the Court to ensure that all healthcare workers who provide maternal healthcare services across the country get fully trained. All health centres, court said, will have to be properly equipped within the next two financial years 2020/21 and 2021/2022.
The court cited the provisions of the International Covenant on Economic, Social and Cultural Rights and the African Charter on People’s 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 emphasised that the government cannot under any circumstance justify non-compliance with the core obligations which derive from the economic, social and cultural rights of the individual and group.
The court said it was aware that progressive realisation takes into account a state’s available resources, but it 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 realise the provision of maternal health care services to women in Uganda. 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 governments 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.
Moses Mulumba, the director of CEHURD, told The Independent following the judgment that “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.”
Mulumba told The Independent that should the government ignore the court’s recommendations; they will be ready to sue the relevant government agencies for “contempt of court.” And that is why they were back in court on April 27. They want the Constitutional Court to hold the Attorney General and other government officials in contempt of court for failing to act on the earlier orders of the court.
Government ignores Court ruling
The CSO’s are alarmed by how the health budget has been trimmed down in the next FY 2021/2022 budget.
Rather than follow the Constitutional Court ruling of August 19, 2020, and increase the health budget, they say the government has instead chopped it by 9.3%; cutting it from Shs2,781.17 billion in FY 2020/21 to Shs2,522.88 billion in FY year 2021/22.
“This is contempt of the Court, and the government should be sanctioned accordingly,” says Miriam Kyomugisha, the Programme Officer, Strategic Litigation, at CEHURD.
Hajjati Rukia Nansubuga Nyombi, a community health advocate at Nakawa Home Based Care Givers Alliance, a community organization, says she is disappointed that the health of pregnant mothers in Uganda has been ignored by the government budget.
“We are increasing the budget in the security sector; the government has increased the sectoral budgets in education, agriculture but the women who are at the forefront of nation building, the government keeps ignoring their concerns.”
Nyombi who interacts with the pregnant mothers and young families in the poor suburbs of Kampala every day says “it is a big shame that mothers continue to lose their lives while giving life”.
Meanwhile, Kukiriza told The Independent that she has not received the compensation the Court awarded her last August and doubts she will ever be compensated.