The government’s failure or omission to adequately provide basic maternal health care services in public health facilities was unconstitutional
Center for Health, Human Rights and Development (CEHURD) & 3 others v Attorney General
Constitutional Petition No16 of 2011
Constitutional Court of Uganda
A O Dollo DCJ; K Kalcuru, FMS E Ntende, B Cheborion, C Madrama,ACJJ
August 19, 2020
Reported by Faith Wanjiku & Ian Otenyo
Constitutional Law –right to health– rights to basic maternal health care services – whether Uganda’s lack of resources to fund the access of basic maternal health care services and emergency obstetric care services in public health facilities justified its failure to make the same services available to the public – whether the government violated the Constitution by failing to provide basic health care maternal services in public health care facilities – Constitution of the Republic of Uganda, 1995, articles 22, 24, 33, 44, 45, and 287
Constitutional Law – right to life – respect for human dignity and protection from inhuman treatment – state liable to provide facilities necessary to enhance the welfare of women – whether availability of resources to fund progressive realization of right to maternal health care was a factor to consider – lack of adequate health care personnel and medicine in public hospitals – state’s responsibility to prevent the derogation from the enjoyment of particular human rights and freedoms – Constitution of the Republic of Uganda, 1995,article 44 (a)
International Law– international covenants and treaties – domestication of international covenants and treaties – were international instruments binding on Uganda where it’s a member party – whether international instruments touching on women’s health rights should be enforced in Uganda–African Charter on Human and People’s Rights on Rights of Women in Africa (Maputo Protocol), 2003
The petition challenged actions and omissions of the government of Uganda for failure to provide minimum maternal health services that included non-provision of basic indispensable maternal health facilities, inadequate number of midwives and doctors to provide maternal health services, inadequate budget allocation to the maternal health sector, frequent stock outs of essential drugs, lack of emergency obstetric services at health facilities, non-supervision of public health facilities and the unethical behaviour of health workers towards expectant mothers which was said to cause death of women during child birth.
The leading causes of maternal death in Uganda were obstetric haemorrhage, postpartum sepsis, obstructed labour and uterine rapture, hypertensive disease and complications from unsafe abortions, all of which were avoidable. Other factors included lack of staff expertise, staff shortages, lack of equipment and supplies, insufficient referrals and inadequate data collection and reporting.
In Mityana Hospital, nurses asked the late Sylivia Nalubowa’s mother in law, the 3rd petitioner money and supplies, but she lacked the amount requested. As time passed, the late Nalubowa began bleeding and a doctor on call never arrived to attend to her. She and her unborn baby died at the hospital. In another incidence, the late Anguko Jennifer went into Labour at 11:00am at Arua Regional Referral Hospital and started bleeding at approximately 2:00pm. The nurses left Ms. Anguko unattended and told her sister and husband to try and stop her bleeding with old pieces of cloth. A doctor was not called until about 7:30pm. He delayed in arriving, and the late Anguko and her unborn child died at the hospital.
The government had not implemented well-known, affordable, and effective approaches for reducing preventable maternal death. For example, obstetric haemorrhage – the leading cause of maternal death – could be prevented by skilled birth attendance, delivery in a properly equipped facility, and timely administration of uterotonic drugs such as oxytocin or misoprostol, which could reduce blood loss and prevent most deaths. Postpartum sepsis was readily prevented with effective infection control procedures and the timely use of antibiotics. Obstructed labour and uterine rapture could be prevented by early detection and causes of caesarean section, and hypertensive disorder could be avoided by treatment with magnesium sulphate and induction of labour.
Relevant provisions of the law
Constitution of the Republic of Uganda, 1995
Article 20: Fundamental and other human rights and freedoms
(1) Fundamental rights and freedoms of the individual are inherent and not granted by the State.
(2) The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of government and by all persons.
Article 22– Protection of right to life.
(1) No person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court.
(2) No person has the right to terminate the life of an unborn child except as may be authorised by law.
Article 24– Respect for human dignity and protection from inhuman treatment.
No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment.
Article 33 (2) (3) – Rights of women
2. The State shall provide the facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement.
3. The State shall protect women and their rights, taking into account their unique status and natural maternal functions in society.
Article 44 (a)– Prohibition of derogation from particular human rights and freedoms.
Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms—
a. freedom from torture and cruel, inhuman or degrading treatment or punishment;
Article 45 – Human rights and freedoms additional to other rights.
The rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned.
Human rights and freedoms during a state of emergency.
Article 287– International agreements, treaties and conventions.
(a) any treaty, agreement or convention with any country or international organisation was made or affirmed by Uganda or the government on or after the ninth day of October, 1962, and was still in force immediately before the coming into force of this Constitution; or
(b) Uganda or the g
(c) government was otherwise a party immediately before the coming into force of this Constitution to any such treaty, agreement or convention,
the treaty, agreement or convention shall not be affected by the coming into force of this Constitution; and Uganda or the government, as the case may be, shall continue to be a party to it.
National Objectives and Directive Principles of state policy of the constitution of the Republic of Uganda
1. Implementation of objectives.
(i) The following objectives and principles shall guide all organs and agencies of the State, all citizens, organisations and other bodies and persons in applying or interpreting the Constitution or any other law and in taking and implementing any policy decisions for the establishment and promotion of a just, free and democratic society.
(ii) The President shall report to Parliament and the nation at least once a year, all steps taken to ensure the realisation of these policy objectives and principles.
XIV. General social and economic objectives.
The State shall endeavour to fulfill the fundamental rights of all Ugandans to social justice and economic development and shall, in particular, ensure that—
(a) all developmental efforts are directed at ensuring the maximum social and cultural well-being of the people; and
(b) all Ugandans enjoy rights and opportunities and access to education, health services, clean and safe water, work, decent shelter, adequate clothing, food security and pension and retirement benefits.
XX. Medical services.
The State shall take all practical measures to ensure the provision of basic medical services to the population.
African Charter on Human and People’s Rightson Rights of Women in Africa (Maputo Protocol), 2003
Article 3 (1) – Right to dignity
1. Every woman shall have the right to dignity inherent in a human being and to the recognition and protection of her human and legal rights.
(1) Health and Reproductive Rights
i. States Parties shall ensure that the right to health of women, including sexual and reproductive health is respected and promoted. This includes:
a) the right to control their fertility;
b) the right to decide whether to have children, the number of children and the spacing of children;
c) the right to choose any method of contraception
f) the right to have family planning education.
(2) States Parties shall take all appropriate measures to:
a) provide adequate, affordable and accessible health services, including information, education and communication programmes to women especially those in rural areas;
(c) protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.
Universal Declaration of Human Rights, 1948
Everyone has the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
The International Covenant on Economic, Social and Cultural Rights, 1976
1. Each State Party to the present covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present covenant by all appropriate means, including particularly the adoption of legislative measures.
2. The state parties to the present covenant undertake to guarantee the rights enunciated in the present covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
3. Developing countries, with due regard to human rights and the national economy, may determine to what extent they would guaranteed economic rights recognised in the present covenant to non-nationals.
1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.
2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mother should be accorded paid leave or leave with adequate Social Security benefits.
3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of a parent age or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to the morals of health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.
- 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.
- 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.
- Whether the alleged inadequacy to provide emergency obstetric care services subjected women to inhuman and degrading treatment.
- Whether international agreements, treaties and conventions were enforceable in Uganda.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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]
- 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.
- 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.
- 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.
- 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.
- 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.
- The court considered that UGX 70,000,000/= for the 3rd and 4th petitioners to be fair and adequate in respect of general damages and UGX 85,000,000/= for each as fair and reasonable in respect of exemplary damages.
- The court therefore declares and orders;
(a)that 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 article 45 read together with objectives XIV and XX of the National Objectives and Directive Principles of state policy of the constitution.
(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 3rd and 4th 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 3rd and 4th 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—
a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
(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:
a. the right of men and women of reproductive age to be informed about, and to have access to reproductive health services including to safe, effective, affordable and acceptable family planning services;
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  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:
The State has to manage its limited resources in order to address all these claims. There will be times when this requires it to adopt a holistic approach to the larger needs of society rather than focus on the specific needs of particular individuals within society.
In the case of John Kabui Mwai & 3 others v Kenya National Examination Council & 2 others  eKLR, the court stated that:
The realisation of socio-economic rights means the realization of the conditions of the poor and less advantaged and the beginning of a generation that is free from socio-economic need. One of the obstacles to the realisation of this objective, however, is limited financial resources on the part of the Government. The available resources are not adequate to facilitate the immediate provision of socio-economic goods and services to everyone on demand as individual rights. There has to be a holistic approach to providing socio-economic goods and services that focus beyond the individual.
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.