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

Constitutional Court · [2020] UGCC 12 · 2020 Petition Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 heard on its merits after the Supreme Court (Constitutional Appeal No. 1 of 2013) set aside the initial striking out and remitted it for determination
Decision
Petition allowed; declarations and directives issued and general and exemplary damages awarded to the 3rd and 4th petitioners

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Holding

The Constitutional Court held that the Government's omission to adequately provide basic maternal health care services and emergency obstetric care in public health facilities violated the rights to health, life and the rights of women, and subjected women to inhuman and degrading treatment, contravening Articles 8A, 22, 24, 33, 39, 44(a), 45 and 287 read with Objectives XIV and XX. While resources constrain socio-economic rights, the State must meet minimum core obligations and demonstrate reasonable, measurable steps; resource scarcity is no blanket excuse, and corruption (not lack of resources) caused two documented maternal deaths. The petition was allowed, declarations issued, budgetary and audit directives made, and general and exemplary damages awarded to the 3rd and 4th petitioners.

Facts

The petitioners challenged the Government's failure to provide minimum maternal health services in public facilities — inadequate facilities, midwives and doctors, budget shortfalls, frequent stock-outs of essential drugs and mama kits, absent emergency obstetric care, and unethical health-worker conduct — which they said caused women to die in childbirth. Evidence by Dr. Waiswa and Prof. Twinomugisha documented preventable maternal deaths and high mortality ratios (336 deaths per 100,000 live births per UDHS 2016, with some facilities at 2,578). Two deaths were central: Sylvia Nalubowa, who bled to death at Mityana Hospital after a bribe went unpaid and Manyi Health Centre could not provide a caesarean section; and Jennifer Anguko, who bled to death at Arua Regional Referral Hospital, left unattended and without blood for transfusion. The respondent recognized the right to health, pleaded progressive realization within limited resources, and listed numerous policies and programs, but admitted persistent implementation challenges and unspent budget allocations.

Issues

  1. Whether the Government's omission to adequately provide basic maternal health care services in public health facilities violates the right to health and contravenes Articles 8A, 39 and 45 read with Objectives XIV and XX of the Constitution.
  2. Whether the Government's omission to adequately provide basic maternal health care services in public health facilities violates the right to life and contravenes Article 22 of the Constitution.
  3. Whether the Government's omission to adequately provide basic maternal health care services in public health facilities violates the rights of women and contravenes Articles 33(1), (2) and (3) of the Constitution.
  4. Whether the Government's omission to adequately provide emergency obstetric care in public health facilities violates the right to health, life and rights of women and contravenes Articles 8A, 22, 33(1), (2) and (3), 45 and 287 read with Objectives XIV and XX of the Constitution.
  5. Whether the Government's omission to adequately provide emergency obstetric care in public health facilities, resulting in obstetric injury, subjects women to inhuman and degrading treatment contrary to Articles 24 and 44(a) of the Constitution.
  6. What remedies or reliefs are available to the parties.

Orders

  • Declaration that the Government's omission to adequately provide basic maternal health care services in public health facilities violates the right to health and contravenes Articles 8A, 39 and 45 read with Objectives XIV and XX of the Constitution.
  • Declaration that the omission violates the right to life and contravenes Article 22 of the Constitution.
  • Declaration that the omission violates the rights of women and contravenes Articles 33(1), (2) and (3) of the Constitution.
  • Declaration that the omission to adequately provide emergency obstetric care violates the right to health, life and rights of women and contravenes Articles 8A, 22, 33(1), (2) and (3), 45 and 287 read with Objectives XIV and XX of the Constitution.
  • Declaration that the omission to adequately provide emergency obstetric care, resulting in obstetric injury, subjects women to inhuman and degrading treatment contrary to Articles 24 and 44(a) of the Constitution.
  • The Government is to prioritize and provide sufficient funds in the national budget for maternal health care in the next financial year.
  • The Minister responsible for Health is directed to ensure all maternal health care staff are fully trained and all health centres equipped within the next two financial years (2020/2021 and 2021/2022).
  • The Government, through the Minister responsible for Health, is directed to compile and submit to Parliament, with a copy to the Court, a full audit report on the status of maternal health at the end of each of the next two financial years (2020/2021 and 2021/2022).
  • The 3rd and 4th petitioners are awarded UGX 70,000,000 each as general damages.
  • The 3rd and 4th petitioners are awarded UGX 85,000,000 each as exemplary damages.
  • The Attorney General is directed to submit a report at the end of financial year 2020/2021 showing progress and implementation of the orders.
  • No order as to costs, the matter being public interest litigation in which the petitioners did not pray for costs.

Key headnotes

Socio-economic Rights — Right to Health — Progressive Realization and Minimum Core Obligations
The progressive realization of the right to health requires the State to adopt a reasonable and measurable plan with achievable benchmarks and timeframes within available resources, and to meet minimum core obligations of immediate effect; resource constraints cannot operate as a blanket excuse for failure to provide basic services.
Right to Health — Maternal Health Care — State Obligation
The Government's omission to adequately provide basic maternal health care services in public health facilities violates the right to health and is inconsistent with Articles 8A, 39 and 45 read together with Objectives XIV and XX of the National Objectives and Directive Principles of State Policy.
Right to Life — Article 22 — Constituent Right to Health
The right to life under Article 22 includes a constituent right to health; failure by the State to provide basic maternal health services, resulting in preventable maternal deaths, violates the right to life.
Rights of Women — Article 33 — Maternal Health as a Service Unique to Women
Maternal health is a service unique to women, and the State's failure to provide it violates the rights of women under Article 33, which obliges the State to provide the facilities and opportunities necessary to enhance women's welfare and to protect their unique status and natural maternal functions.
Freedom from Inhuman and Degrading Treatment — Articles 24 and 44(a) — Emergency Obstetric Care
Failure to provide emergency obstetric care that causes severe and avoidable suffering and obstetric injury amounts to cruel, inhuman and degrading treatment contrary to Articles 24 and 44(a), which permit no derogation from freedom from such treatment.
Constitutional Interpretation — Purposive Approach and Domesticated International Instruments
The Constitution must be construed as one integrated whole, broadly and purposively rather than in a narrow legalistic way; international human rights conventions ratified by Uganda before the 1995 Constitution are antecedents incorporated through Articles 45 and 287 and inform the interpretation of fundamental rights in Chapter Four.
Exemplary Damages — Unconstitutional Conduct by Servants of Government
Exemplary damages are warranted where the wrong is an oppressive, arbitrary or unconstitutional act by a servant of the government, such as medical personnel leaving expectant mothers to bleed to death without effort to save their lives.

Legislation cited (18)

  • Constitution of the Republic of Uganda art.8A
  • Constitution of the Republic of Uganda art.22
  • Constitution of the Republic of Uganda art.24
  • Constitution of the Republic of Uganda art.33(1), (2) and (3)
  • Constitution of the Republic of Uganda art.39
  • Constitution of the Republic of Uganda art.44(a)
  • Constitution of the Republic of Uganda art.45
  • Constitution of the Republic of Uganda art.137
  • Constitution of the Republic of Uganda art.287
  • Constitution of the Republic of Uganda National Objectives and Directive Principles of State Policy, Objective XIV
  • Constitution of the Republic of Uganda National Objectives and Directive Principles of State Policy, Objective XX
  • International Covenant on Economic, Social and Cultural Rights art.2
  • International Covenant on Economic, Social and Cultural Rights art.12
  • International Covenant on Civil and Political Rights art.6
  • African Charter on Human and Peoples' Rights art.16
  • Convention on the Elimination of All Forms of Discrimination against Women art.12
  • Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol) art.14
  • Government Proceedings Act

Cases cited (23)

  • Center for Health, Human Rights and Development & Others v Attorney General (Constitutional Appeal No. 1 of 2013)
  • CEHURD & Others v Nakaseke District Local Government & Others (Civil Suit No. 111 of 2012)
  • CEHURD, Mubangizi Michael and Musimenta Jennifer v Executive Director, Mulago National Referral Hospital & Attorney General (HCCS No. 212 of 2013)
  • Attorney General v Susan Kigula & 417 Others (Constitutional Appeal No. 3 of 2006)
  • Uganda v Thomas Kwoyelo (Constitutional Appeal No. 1 of 2012)
  • Charles Onyango Obbo & Another v Attorney General (Constitutional Petition No. 15 of 1997)
  • Salvatore Abuki v Attorney General (Constitutional Petition No. 2 of 1997)
  • Dr. Denis Lwamafa v Attorney General (HCCS No. 79 of 1983) [1992] 1 KALR 21
  • Fredrick Nsubuga v Attorney General (HC Civil Suit No. 13 of 1993)
  • WSO Davies v Mohanlal Kramshi Shah [1957] 1 EA 352
  • P.A.O & 2 Others v Attorney General, High Court of Kenya, Petition No. 409 of 2009 (2012) eKLR
  • Government of the Republic of South Africa v Grootboom 2001 (1) SA
  • S v Manamela 2000 (3) SA 1
  • SERAC v Nigeria, AHRLR 60 (ACHPR 2001)
  • Alyne da Silva Pimentel Teixeira v Brazil, CEDAW Communication No. 17/2008
  • Laxmi Mandal v Deen Dayal Harinagar Hospital & Ors, Writ Petition No. 8853/2008 (2010)
  • Miguel Castro-Castro Prison v Peru, Inter-Am. Ct. H.R. (Ser. C) No. 160
  • Advocate Prakash Mani Sharma v Government of Nepal, Supreme Court of Nepal (1999)
  • Olga Tellis & Others v Bombay Municipal Corporation (1987) LRC (Const) 351
  • Paschim Banga Khet Mazdoor Samity v State of West Bengal & Another, (1996) 4 SCC 37
  • Minister of Home Affairs and Another v Fisher and Another [1979] 3 All ER 21
  • The Queen v Big M Drug Mart Ltd (1986) LRC 332
  • South Dakota v North Carolina, 192 US 268 (1904)
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