Victory for pregnant women after rethink by Constitutional Court

28 August 2020 · Carmel Rickard

Uganda’s constitutional court has delivered a major victory for the health of pregnant women. The case was brought by the Centre for Health, Human Rights and Development, along with a health law expert and the relatives of two women who had died in childbirth because of Uganda’s inadequate maternal healthcare conditions. Five constitutional court judges found that the government was underfunding maternal healthcare to the extent that it was unconstitutional. To ensure that this improved, they ordered that the court had to be provided with an audit report on the status of maternal health in Uganda over the next two financial years. The judges further awarded general damages to two of the applicants, relatives of pregnant women who had died because of the violation of their rights to life and health. While the decision has been widely hailed for taking the rights of pregnant women seriously, and ensuring the issue has the protection of the constitution, it also shows that Uganda’s constitutional court is seeing its own role in a changing light: in 2012 the same case had come before the constitutional court but the court refused to hear it on the basis that it amounted to consideration of political issues, namely government allocation of funds to maternal health. However, an appeal to the Supreme Court – Uganda’s apex court – resulted in an order that the constitutional court should consider the issue. Back before a now-differently composed constitutional court, the matter fared rather better second time round.

Read first Constitutional Court judgment, June 2012

Read Supreme Court judgment, October 2015

Read second Constitutional Court judgment, August 2020

What was the court to make of a situation where hospital nurses demanded a bribe from the family of Sylvia Nalubowa, a woman in labour, before they would provide any care? The relatives did not have the amount demanded of them, so when the woman began bleeding no doctor arrived to help; both the mother and baby died in the hospital.

And then there was the case of Jennifer Anguko, left unattended by nurses after she began bleeding during labour. The nurses told Anguko’s sister and husband to ‘try and stop her bleeding with old pieces of cloth’. Again, the callous approach of the hospital staff led to the woman and her baby dying.

Putting these two cases into context, the court quoted statistics showing that in Uganda 5 840 women died each year while giving birth – roughly 16 women each day.

Blanket excuse

The state explained that it had limited resources and had instituted health reforms to improve maternal health. But in his lead decision Judge Cheborion Barishaki said limited resources could not be used ‘as a blanket excuse’ for failing to provide basic services.

It would not have required extra money from the state to save the lives of the two women whose relatives had helped bring the court case. It was corruption and the attitude of staff that killed them, not lack of resources. The government’s own health sector development plan for 2015 showed that just one third of medical equipment in Uganda’s general hospital was working. The balance all needed repair or replacement. ‘This is an absurd situation,’ commented the court.

While it was true that attaining high standards of health services could only happen over time, this should not be ‘a shield to greater scrutiny’, said the court. The law required the state to show in clear and concrete terms that it had taken all practical measure to ensure that basic medical services were available to everyone. No matter how good policies might be in theory, if the government did not implement them, they could not be said to be steps taken in the realisation of the right to health.

Replication

Statements made by government officials for the benefit of the court ‘were a mere replication of statements in reports made to attract donor funding’ and gave no indication of what had actually been done to realise the provision of maternal healthcare.

In 2007 the government had developed a ‘roadmap’ to reduce maternal mortality in Uganda. But 10 years later ‘the policies have not led to any meaningful reductions in the leading causes of maternal death.’ The major causes of maternal death in Uganda remained the same, and it was clear that the measures did not take into consideration the needs and rights of vulnerable members of society, ‘in this case the women who form a sizeable majority’.

The court also accepted evidence in a government report of ‘quiet corruption’: corruption from behaviour that may be hard to observe and track, such as absenteeism. Another report blamed absenteeism for contributing to the ‘negative health worker attitude’ towards patients and ‘low levels of accountability to the community.’ The judges also heard that government plans to improve the situation were limited and lacked enforcement mechanisms to enable any significant improvement.

Degrading treatment

The court declared that the government’s omissions and failures to provide basic maternal health care violated the constitution. It violated the right to life and the rights of women. Government failure to provide emergency obstetric care in public health facilities also violated the rights of women to health and to life. It resulted in subjecting women to what the court officially pronounced to be inhuman and degrading treatment.

The court ordered the government, in the next financial year, to prioritise and provide enough funds in the national budget for maternal health care. The government was given two years to ensure that all the staff providing maternal health care were fully trained and that all health centres were equipped.

To enable the courts to check that these orders were being carried out, the government was directed, through the minister responsible for health, to compile and submit to parliament, a full audit report on the status of maternal health in Uganda. This is required at the end of the each of the next two financial years, and a copy of the reports is to be filed with the court as well.

'Corruption'

Finally, two of the applicants – the mother in law of one woman whose death was caused by the ‘corruption’ of the health care staff, and the mother of the other – were awarded general damages of UGX 70m each for the ‘psychological torture’ they experienced because of the cruel and degrading treatment of the two women.

They were further awarded ‘exemplary damages’ of UGX 85m each for the loss suffered as a result of the behaviour of the medical staff at the two hospitals involved.

The judgment has been widely hailed in Uganda, and it seems more than likely that communities will join in the monitoring of improvements to government funding of maternal health facilities as well as checking levels of corruption and absenteeism among health care workers.

Constitutional law

But the case is also important for what it shows about the development of constitutional law. It was only heard because of a supreme court order reversing an earlier decision by the constitutional court. In that earlier decision, the constitutional court had found that it could not consider the case as it involved matters of government policy.

When the initial refusal to consider the matter was heard by the supreme court the then Chief Justice, Bart Katureebe, concluded, ‘I think they misunderstood what was required of the court. I do not think the court was required to determine, formulate or implement the health policies of government.’ Rather, it had to decide whether all practical steps had been taken to ensure basic medical services, in particular maternity services, to the people.

He directed the constitutional judges to hear the case. If the constitutional court said it had no mandate to hear and determine the allegation that the government had failed the people, ‘then where does the citizen go?’ Justice Katureebe asked.

'A matter of justice', Legalbrief, 25 August 2020

Carmel Rickard

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