Maternal health: What the court ruling means

On August 19, the Constitutional Court passed a landmark judgment in which it pronounced that the government’s omission to adequately provide basic maternal healthcare services and emergency obstetric care in public health facilities violates the right to health, the right to life and the rights of women as guaranteed under the Constitution.

Uganda’s maternal mortality rate is unacceptably high, at 343 per 100,000 live births. This means Uganda loses 15 women each day from pregnancy and child birth related causes.

In its judgment, the court directed the government to prioritise and provide sufficient funds in the national budget for maternal healthcare. The court also ordered, through the Health minister, that all the healthcare workers who provide maternal healthcare services in Uganda be fully trained and all health centres be properly equipped within the next two financial years (2020/2021 and 2021/2022).

This judgement followed a nine-year-long process in which the Center for Health, Human Rights and Development (CEHURD) together with Prof. Ben Twinomugisha of Makerere University School of Law and two other petitioners that had lost loved ones in childbirth, in a manner that they described as violating the rights of women in Uganda.

The August 19 decision from the Constitutional Court is critical for a number of reasons. First, it places the right to health and access to basic maternal health commodities within the realm of rights that are now justiciable under the Constitution.

Chapter Four of Uganda’s Constitution is silent on the right to health, but makes relatively strong provisions on the rights of women under Article 33. The furthest the right to health could be inferred in the Constitution is under the National Objectives and Directive Principles of State Policy, which are always argued as unenforceable.

The court agreed with the petitioners that Objectives XIV and XX, read together with Article 8A of the Constitution, oblige the government to provide health and basic medical services to the people of Uganda.
Secondly, the case clarifies what the concept of minimum core obligations means from the perspective of the right to health and access to basic maternal health care services in Uganda.

The court cited the provisions of the International Covenant on Economic, Social and Cultural Rights and the African Charter on Peoples and Human Rights and indicated that the government should ensure that it provides adequate equipment and supplies for preventive, diagnostic, and curative services, including training of medical staff and development of treatment guidelines and protocols for the management of maternal complications.

The court emphasized that the government cannot under any circumstance justify noncompliance with the core obligations which derive from the economic, social, and cultural rights of the individual and group.
Thirdly, the court also addressed the question of how progressive realisation for maternal healthcare should be measured in the context of Uganda.

The court held that it was not sufficient for the State to merely argue that there are challenges impeding implementation of policies. The State had to demonstrate the measures or steps taken to realize the provision of maternal health care services to women in Uganda. The mere expression of sentiments in reports made to attract donor funding could not measure up to the required test of reasonable steps.

In conclusion, despite the long and cumbersome process of litigating this case, the judges finally gave the rights to accessing basic maternal health care services and obstetric care in public health facilities in Uganda a place in the Constitution. This court ruling demonstrates that public litigation continues to be a viable option for protection of rights.

The writer is the Executive Director of the Center for Health, Human Rights and Development (CEHURD)