Wakilii

Center for Health, Human Rights and Development (CEHURD) & 3 Ors v Attorney General (Constitutional Petition No. 16 of 2011)

Constitutional Court · [2012] UGCC 13 · 2012 Preliminary Objection Upheld ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging government acts and omissions; ruling on a preliminary objection that the petition raised a non-justiciable political question.
Decision
Petition struck out on the preliminary objection; no determination on the merits.

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Constitutional Court upheld the Attorney General's preliminary objection that the petition raised a non-justiciable political question. The petition challenged government's failure to provide basic maternal health commodities and the resulting high maternal mortality. Applying the separation-of-powers principle and the political question doctrine, the Court held that determining the issues would require it to review and substitute its discretion for the Executive's and Legislature's formulation, implementation, and resource allocation of health-sector policy, which is their constitutional preserve. The petition disclosed no competent question requiring constitutional interpretation under Article 137. The petitioners' grievances could be pursued through other remedies, including redress under Article 50 and the High Court under the Judicature Act and Government Proceedings Act. Petition struck out.

Facts

The petitioners — an NGO (CEHURD), an academic, and relatives of two deceased women — challenged government's non-provision of basic indispensable maternal health commodities in government health facilities and the unethical conduct of health workers toward expectant mothers, which they said caused unacceptably high maternal mortality. They cited the death of Sylvia Nalubowa at Mityana Hospital on 19 August 2009 and Jennifer Anguko at Arua Regional Referral Hospital on 10 December 2010, both allegedly due to negligence and lack of basic maternal commodities. They sought declarations that these acts and omissions contravened numerous constitutional provisions and objectives, and orders that the families be compensated. The Attorney General responded that the petition was speculative and disclosed no question for constitutional interpretation, and raised a preliminary objection that the issues were political questions reserved to the Executive and Legislature.

Issues

  1. Whether the petition, as framed, raised a non-justiciable political question that the Court was prohibited from determining.
  2. Whether the petition disclosed any competent question requiring interpretation of the Constitution within the Court's jurisdiction under Article 137.
  3. Whether the right to the highest attainable standard of health is a constitutional right by virtue of Article 45 of the Constitution.
  4. Whether government's non-provision of basic maternal health care services and inadequate health resources infringes the rights to health and life under Articles 8A, 22, and objectives XIV and XX.
  5. Whether the families of Sylvia Nalubowa and Jennifer Anguko are entitled to compensation.

Orders

  • The respondent's preliminary objection is upheld.
  • The petition is struck out.
  • No order as to costs.

Key headnotes

Constitutional Law — Justiciability — Political Question Doctrine
Courts may decline to determine issues whose resolution is committed to another branch of government or which lack satisfactory criteria for judicial determination; such political questions are non-justiciable even where the court has jurisdiction.
Constitutional Law — Separation of Powers — Formulation and Implementation of Policy and Resource Allocation
The determination, formulation, and implementation of government policy and the allocation of resources, including in the health sector, are the constitutional preserve of the Executive and Legislature, and the court will not substitute its discretion for theirs.
Constitutional Litigation — Constitutional Court Jurisdiction — Requirement of a Question of Interpretation
The Constitutional Court's jurisdiction under Article 137 arises only where the petition, on its face, shows that interpretation of a constitutional provision is required; a petition that requires the court to review and draw inferences from government policy discloses no such question.
Constitutional Law — Redress — Availability of Alternative Remedies
Where a grievance requires the court to draw inferences rather than interpret the Constitution, redress is more appropriately sought in the High Court under Article 50 and through remedies under the Judicature Act and Government Proceedings Act, rather than by a petition under Article 137.

Legislation cited (25)

  • Constitution of Uganda 1995 Article 137(1)
  • Constitution of Uganda 1995 Article 137(3)
  • Constitution of Uganda 1995 Article 137(4)
  • Constitution of Uganda 1995 Article 45
  • Constitution of Uganda 1995 Article 50
  • Constitution of Uganda 1995 Article 2(1)
  • Constitution of Uganda 1995 Article 79
  • Constitution of Uganda 1995 Article 111(2)
  • Constitution of Uganda 1995 Article 111(3)
  • Constitution of Uganda 1995 Article 126(1)
  • Constitution of Uganda 1995 Article 176(2)(e)
  • Constitution of Uganda 1995 Article 22
  • Constitution of Uganda 1995 Article 24
  • Constitution of Uganda 1995 Article 33
  • Constitution of Uganda 1995 Article 34
  • Constitution of Uganda 1995 Article 44(a)
  • Constitution of Uganda 1995 Article 8A
  • Constitutional Court (Petitions and References) Rules, SI No. 91 of 2005, Rule 3
  • Judicature Act, Cap 13 s.33
  • Judicature Act, Cap 13 s.36
  • Judicature Act, Cap 13 s.37
  • Judicature Act, Cap 13 s.38
  • Government Proceedings Act, Cap 77 s.2
  • Government Proceedings Act, Cap 77 s.3
  • International Covenant on Economic, Social and Cultural Rights, Article 12

Cases cited (10)

  • Baker v Carr, 369 US 186 (1962)
  • R v Cambridge Health Authority, ex parte B [1995] 2 All ER 129
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Ismail Serugo v Kampala City Council & Attorney General (Constitutional Appeal No. 2 of 1998)
  • Marbury v Madison, 5 US 137 (1803)
  • Coleman v Miller, 307 US 433 (1939)
  • Luther v Borden, 48 US (7 How.) 1 (1849)
  • Hirabayashi v United States, 320 US 81 (1943)
  • Ex-parte Matovu
  • Paul Kawanga Ssemwogerere & 2 Others v Attorney General (Constitutional Appeal No. 1 of 2001)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.