Issues:

1. Whether the government’s omission to adequately provide basic maternal health care services in public health facilities violated the right to health and was inconsistent with and in contravention of articles 22,33(1), (2) and (3), 45 as read with objectives XIV and XX of the National Objectives and Directive Principles of State Policy of the Constitution of the Republic of Uganda.
2. Whether the government’s omission to adequately provide emergency obstetric care in public health facilitieswhich resulted into obstetric injury subjected women to inhuman and degrading treatment, violated the right to health, life and rights of women and was inconsistent and in contravention of article 22, 24, 33(1), (2) and (3), 44, 45, 287 as read with objectives XIV and XX of the Constitution of the Republic of Uganda.
3. Whether the alleged inadequacy to provide emergency obstetric care services subjected women to inhuman and degrading treatment.
4. Whether international agreements, treaties and conventions were enforceable in Uganda.
5. Whether Uganda’s lack of resources to fund the access of basic maternal health care servicesand emergency obstetric care services in public health facilities justified its failure to make the same services available to the public.

Held

1. The court was enjoined to construe the Constitution not in a narrow and legalistic way but broadly and purposively so as to give effect to its spirit. It was an elementary rule of constitutional construction that no one provision of the Constitution was to be segregated from the others and considered alone but that all the provisions bearing upon a particular subject were to be brought into view and interpreted jointly so as to effectuate the greater purpose of the instrument.
2. While Uganda had made commitments to reduce maternal mortality, it had failed to improve performance on key maternal health indicators. While the ministry of health of Uganda had published roadmaps to reduce child and maternal mortality, there had not been a consistent or meaningful reduction in the leading causes of maternal death.
3. Objective XIV of the Objective Principles of State Policy in the Constitution provided that; the state should endeavour to fulfill the fundamental rights of all Ugandans to social and economic development and should in particular ensure that all developmental efforts were directed at ensuring maximum social and cultural well-being of the people and all Ugandans enjoyed rights and opportunities and access to education, health services. It was further stated in objective XX of the Constitution that; the state should take all practical measures to ensure the provision of basic medical services to population.
4. Though the provision of services depend largely on the availability of resources in the country, it should not be used as a blanket excuse and defense for failure to provide basic services to save lives because provision of some of these services did not require money for example, it did not require the state to spend money to save the life of the late Sylvia Nalubowa at Mityana Hospital. The staff wanted a bribe and because the family lacked money and the bribe was not paid, the doctor delayed to come to hospital and as a result Nalubowa bled to death. Corruption killed Nalubowa and not lack of resources.
5. Article 24 of the Constitution provided for respect for human dignity and protection from inhuman treatment. The article emphasized that no person should be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment. Under article 44 there should be no derogation from the enjoyment of freedom from torture and cruel, inhuman or degrading treatment or punishment. Articles 14.1 (a), (b), (c) and (f) and article 14.2(a) and (c) of the Protocol on the African Charter on Human and People’s Rights on the rights of women in Africa emphasized that parties to the African Charter should ensure that women were not subjected to cruel, inhuman and degrading treatment.
6. The United Nations special rapporteur on torture and other cruel, inhuman or degrading treatment stated in the Juan E. Mendez’ report of February 2013 that medical care which caused severe suffering for no justifiable reason could be considered cruel, inhuman and degrading treatment.
7. The deaths of Ms. Jennifer Anguko at Arua regional referral hospital and Ms. Sylvia Nalubowa at Mityana district hospital were a result of non-availability of basic maternal health services and negligence of health workers. The actions caused utmost pain, degrading and cruel treatment of the deceased for the period they spent in the said hospitals fighting for their lives with no hope of survival until they died. That also caused untold suffering and loss to their families.
8. The omissions by the employees of the said hospitals amounted to inhuman, cruel and degrading treatment of the victims and as a result a violated their rights protected under articles 22 and 44 of the Constitution.
9. Article 137(3) (b) of the constitution granted any aggrieved person a right to petition the court for a declaration or redress where appropriate. The right to health, human dignity and life of women was protected both under International law and the Constitution. The right encompassed access to adequate maternal health care. Access included access to functional hospitals with equipment and professionals willing to enhance and preserve the lives of mothers and women during antenatal and postnatal periods.
10. Maternal health had a direct relation to the physical attributes of women and as such their reproductive health forms an integral part of the health of a woman and for that reason, it was considered as part and parcel of human rights of women. The right to health of a woman formed part of her right to life, right to equality, right against torture, cruel degrading and inhuman treatment.
11. As a fundamental right, the right to health of women should be made available and accessible by the state through the formulation of necessary laws and programs. In absence of any mechanisms, those rights became ineffective and would constitute a breach of obligations vested upon the state. In such an absence, the court could issue necessary orders or directives for the state to fulfill its responsibilities.
12. The petitioners were able to prove that the government had omitted to adequately provide basic maternal health care services in public health facilities which resulted in the violation of the right to health in contravention of articles 39 and 45 and objectives XIV and XX of the Constitution.
13. The omission to adequately provide basic maternal health care services violated the right to life in contravention of article 22 of the Constitution. The omission also violated the rights of women which was inconsistent with articles 33(1), (2) and (3) of the Constitution. The petitioners ably demonstrated that the government had omitted to adequately provide emergency obstetric care in public health facilities which violated the right to health, life and rights of women. That contravened articles 22 33(1), (2) and (3), 45, 287 as read with objectives XIV and XX of the Constitution.
14. The failure to adequately provide emergency obstetric care in public health facilities had resulted in inhuman and degrading treatment of women in contravention of articles 24 and 44(a) of the constitution. It was not in doubt that financial resources were a constraint to the provision of adequate maternal health care services in Uganda however the constitutional obligation of the state to provide those services to uphold the rights of women and fulfill their reproductive rights and needs and could not be ignored. What the government failed to do was to annually at the time of budgeting prioritize funding to the maternal health sector and disburse all the budgeted amounts to the specific centres.
15. Regarding the prayer for general damages, the law would presume them to be a direct and natural consequence of the act complained of. In quantification of general damages, the court should bear in mind the fact that the plaintiff should be put in the position he would have been had he not suffered the wrong.Thus, the basic measure of damages was restitution.The award of damages was at the discretion of court in respect of what the law presumes to be the natural and probable consequence of the defendant’s acts or omissions.
16. In the case of exemplary damages also referred to as punitive damages, they represented a sum of money of a penal nature in addition to the compensatory damages given for pecuniary loss and mental suffering. They were aimed at curbing the repeat of the offending act and given without reference to any proved actual loss suffered by the plaintiff. Exemplary damages should only be awarded in two categories of cases: in cases where the wrong complained of was oppressive, arbitrary or unconstitutional by a servant of the government, or cases in which the defendants conduct had been calculated by him to make a profit for himself which could well exceed the compensation made to the defendant. In the instant petition the exemplary damages followed an instance where the actions of the government’s servants together with the medical personnel who left Sylvia Nalubowa and Anguko Jennifer to bleed to death without effort to save their lives and that of the unborn child of Anguko. Such acts justified an award of exemplary damages.

[Per C Madrama, JCC concurring]

17. The thrust of the petition gravitated on the question of whether there was in place adequate provisions for maternal health care services provided by the government of Uganda or conversely whether no adequate provisions for maternal health care had been put in place in violation of cited provisions of the Constitution of the Republic of Uganda. Secondly, on a matter of fact whether the acts or omissions of the government of Uganda were inconsistent with the provisions of the Constitution.
18. With regard to the international conventions, specific provision had been made in the Constitution itself for recognition of international treaties and the question was whether those treaty obligations were matters for interpretation of the Constitution of the Republic of Uganda. Article 287 of the Constitution of the Republic of Uganda clearly separated the provisions of treaties, agreements and conventions from the Constitution and stipulated that the coming into force of the Constitution should not affect or be affected by the coming into force of the Constitution and Uganda should continue to be a party to the treaties. There were provisions for enforcement of international agreements, treaties and conventions.
19. Motherhood and childhood were entitled to special care and assistance. All children, whether born in or out of wedlock, should enjoy the same social protection. The declaration only declared the right of everyone to a standard of living and provision of housing and medical care and necessary social services. Having that in mind, declarations of the inalienable rights of man were recognised in article 45 of the Constitution of the Republic of Uganda by way of a general provision that any human rights and freedoms which were not specifically mentioned in the Constitution should not be regarded as excluding others not specifically mentioned. However, the question of what the necessary social services could be subjective because evidence had to be taken to consider the peculiar circumstances of each nation state.
20. Article 33(2) clearly provided that the state of Uganda should provide the facilities and opportunities necessary to enhance the welfare of women. That should include maternal healthcare services. That was further catered for by article 33 (3) and which requires the state to protect the women with particular regard to their unique status and natural maternal functions. It followed that the provision of healthcare services should bear a special focus on the unique status of women and their natural maternal functions. Contrary to the submissions of the Attorney General, Uganda had in effect domesticated several international instruments and in the circumstances of the case that affect the rights of women and their maternal health. Uganda had domesticated several international conventions with special focus on the rights of women and their health during maternity.
21. In that premise, failure to provide sufficient healthcare facilities through effective policy or failure to implement policy and which led to the threat to the life of mothers, which threats could be averted was a violation of the right to life as well as the Constitutional obligations of the State of Uganda.

Petition allowed with no order regarding costs.

Orders

(b)That the government’s omission to adequately provide basic maternal health care services in public health facilities violated the right to life and was inconsistent with and in contravention of article 22 of the Constitution.

(c)That the government’s omission to adequately provide basic maternal health care services in public health facilities violated the rights of women and was consistent with and in contravention of articles 33(1), (2) and (3) of the constitution.

(d)That the government’s omission to adequately provide emergency obstetric care in public health facilities violated the right to health, life and rights of women and was inconsistent and in contravention of article 22 33(1), (2) and (3), 45, 287 read together with objectives XIV and XX of the Constitution.

(e)That the government’s omission to adequately provide emergency obstetric care in public health facilities which could result into obstetric injury subject’s women to inhuman and degrading treatment and was inconsistent with and in contravention of articles 24 and 44(a) of the constitution.

(f) In order to meet the constitutional obligation of the state to uphold the rights of women and fulfill their reproductive rights, the government should in the next financial year prioritize and provide sufficient funds in the national budget for maternal health care in Uganda, the government of Uganda through the Minister responsible for health was directed to ensure that all the staff who provide maternal health care services in Uganda were fully trained and all health centers were equipped within the next 2 financial years (2020/2021 and 2021/2022).

(g)In order to maintain a consistent and deliberate effort to improve the status of maternal health care in Uganda, the government through the Minister responsible for health was directed to compile and submit to Parliament with a copy to the court of a full audit report on the status of maternal health in Uganda at the end of each of the next two financial years (2020/2021 and 2021/2022).

(h)The 3^rd and 4^th petitioners should be awarded UGX 70.000.000/= each as general damages for the psychological torture, violation of the rights to life, health and cruel and degrading treatment of their loved ones.

(i) The 3^rd and 4^th petitioners should each be awarded exemplary damages shs. 85,000,000/= for the loss suffered as a result of acts and omissions of the medical personnel at Mityana and Arua Regional Referral Hospitals respectively.

(j) The Attorney General was directed to submit a report at the end of the financial year 2020 /2021 showing progress and implementation of the orders in (h) above.

(k) The case was public interest litigation in which the petitioners did not pray for costs.

Relevance to the Kenyan situation

The courts in Kenya appreciate that it takes time for the government to manifest the full realization of some socio-economic rights as guaranteed under article 43 1 (a), 2 of the Constitution, 2010 and section 6 (1) of the Health Act, 2017.

Constitution, 2010, Article 43 – Economic and social rights

(1) Every person has the right—

(2) A person shall not be denied emergency medical treatment.

Health Act, 2017, Section 6 (1) – Reproductive health

i. Every person has a right to reproductive health care which includes:

b. the right of access to appropriate health-care services that will enable parents to go safely through pregnancy, childbirth, and the postpartum period, and provide parents with the best chance of having a healthy infant;

c. access to treatment by a trained health professional for conditions occurring during pregnancy including abnormal pregnancy conditions, such as ectopic, abdominal and molar pregnancy, or any medical condition exacerbated by the pregnancy to such an extent that the life or health of the mother is threatened. All such cases shall be regarded as comprising notifiable conditions.

Courts take into consideration the availability of resources or lack thereof when determining the liability of the government when health care services are inaccessible to the public. The court in the case of Mathew Okwanda v Minister of Health and Medical Services & 3 others [2013] eKLR observed that, if the overall health budget was substantially increased to fund all health care programmes, it would diminish the resources available for the State to meet other social needs. The court held that:

In the case of John Kabui Mwai & 3 others v Kenya National Examination Council & 2 others [2011] eKLR, the court stated that:

The Ugandan case can inspire Kenyan courts to grant prayers for damages and declarations for the violation of constitutional rights where the government had failed to avail maternal health care services, where whose failure would lead to the loss of lives of expectant mothers and or their unborn children.