Uganda’s Constitutional Court hears a Landmark Maternal Health case

By Paul Wasswa

In what many describe as a landmark case, Uganda’s Constitutional Court will tomorrow morning (Thursday, 13 June) hear a case which challenges the government’s failure to stop the high number of women who die while giving birth.

The case of Center for Health, Human Rights and Development (CEHURD) and others vs. Attorney General (Constitutional Petition 16 of 2011) reveals that more than 16 pregnant women die every day in Uganda with many of these tragic deaths preventable.  Research shows that most of the deaths are due to absence of maternal health kits, no midwives, stock outs of essential medicines and the lack of emergency obstetric care. This state of affairs is attributed to the failure of the state to address the problem of maternal mortality.

Genesis of Uganda’s Maternal Health case

CEHURD’s case is based on the fact that Uganda has an extremely high maternal mortality rate – it increased from 418 maternal deaths per 100,000 live births in 2006 to 438 maternal deaths per 100,000 live births in 2011. This was attributed to the absence of enough midwives and doctors attending to expectant women, frequent stock-outs of essential drugs and other basic supplies such as gloves, an absence of maternal health kits and the lack of Emergency Obstetric Care services at Healthcare facilities and hospitals. The shortage of health workers was compounded by poor pay that greatly contributed to absenteeism and poor attitudes of workers towards pregnant women, according to CEHURD. Rhoda Kukiriza and Inziku Valente also submitted affidavits describing the loss of their relatives at child birth with a belief that it was linked to the poor quality of service in the healthcare system.

When the case was heard in 2012 before the Constitutional Court, CEHURD contended that the poor services coupled with inadequate financial resource allocation to the health sector contributed to the high maternal mortality rate which amounted to the violation of Government’s obligation to provide basic maternal health care services in health facilities.

However, the State argued that the court did not have the power to hear the petition because the government had the power and authority to handle issues connected to maternal health and not the Courts. The court agreed and found that it did not have the power to hear the petition as it raised no questions for constitutional interpretation and summarily dismissed the case.

CEHURD appealed the Constitutional Court Judgement in the Supreme Court (Uganda’s highest court) in 2013. The  Supreme Court found that the Constitutional Court was being called upon to determine whether the Government had taken all practical measures to ensure the provision of basic medical services to the population and in this case maternity services.  It thus held that the Constitutional Court had the power to hear the case on its merits and ordered the Constitutional Court to re-hear the case.

Why this case is important

In a country where the Right to Health is not a constitutionally guaranteed human right, this case seeks to question the progressive realisation of the Right to Health and its rightful place within the ambit of the Ugandan Constitution. Though Uganda is a signatory to several international human rights instruments such as the International Covenant on Economic, Social and Cultural Rights and General Comment No. 14 on the Right to the Highest Attainable Standard of physical and mental health, this case demonstrates the fact that not much has been done by the Ugandan government to address the problem of maternal deaths.

By contrast, South Africa’s constitutional framework, which recognizes the right of access to health care services and the Guidelines on Maternity care in South Africa; which recognize the right to emergency obstetric care, provide the basis on which the public health system has been able to make strides in combating maternal deaths. The maternal death ratio in 2016 in South Africa was 134 per 100 000 live births down from 189 in 2009.

The CEHURD Petition asks the Constitutional Court to take the same progressive approach as South Africa and to breathe the Right to Health into Uganda’s Constitution. It seeks to address the systematic and structural imbalances in society that have led to the death of pregnant women while giving birth in Uganda’s public healthcare facilities. It seeks the recognition that maternal health is a right for all and not a privilege for a few.

Paul Wasswa is a fellow at SECTION27 and Programme Associate at the Center for Health, Human Rights and Development (CEHURD).