Centre for Health, Human Rights and Development (CEHURD) & 3 Others v. Attorney General

Constitutional Appeal No. 1 of 2013
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This case was filed by the families of two women who died during childbirth and the Centre for Health, Human Rights and Development (CEHURD). They argued that inadequate resources for maternal health violated the right to health under Objectives XIV (b) XX, XV and Article 8A of the Ugandan Constitution, the right to life under Article 22, the rights of women under Article 33, and the rights of children under Article 34.

CEHURD claimed that the government failed to provide maternal health services in government hospitals and health facilities in a number of ways, including providing an inadequate number of mid-wives and doctors; non-provision of essential maternal health commodities; inadequate budget allocation to the maternal health sector; and the imprudent and unethical behavior of health workers.

The Constitutional Court dismissed CEHURD’s petition after hearing preliminary objections from the Attorney General. It held that the petition did not raise competent questions that required Constitutional interpretation and that the issues could not be examined due to the Political Question Doctrine.

CEHURD appealed the decision to the Supreme Court, arguing that the Constitutional Court erred in law when applying the Political Question Doctrine; in stating that the questions did not require interpretation under Article 137; and in determining that the petition required them to review and implement health policies.

The Supreme Court sent the case back to the Constitutional Court to be heard on its merits.

The Court held that Article 137(1) vests powers of interpretation of the Constitution in the Constitutional Court. Article 137(3)(b) of the Constitution gives a right to any person who alleges that an act or omission of an authority is inconsistent with the Constitution to file a petition with the Constitutional Court to seek redress. Consequently, the Political Question Doctrine has limited applicability under Uganda’s current constitutional order.

The Court found that that the Constitutional Court erred in striking out the appellant’s petition on the ground that were no competent questions. The petitioners had specified the alleged acts and omissions of the Government and health workers that contravened the Constitution. The appellants also cited the particular provisions of the Constitution that the Government’s acts and omissions allegedly contravened.

In addition, the Supreme Court found that concern about inappropriate interference with Government functions was unwarranted. The Court emphasized that the matters raised dealt with omissions to stock essential drugs and supplies and inhumane treatment of expectant mothers, which were not in the furtherance of government policy, but rather an undermining of it. Even if the allegations pertained primarily to political matters, the Constitutional Court should have assessed their merits before summarily dismissing them.

“If a citizen alleges that the implementation of that health policy or actions and omissions made under the policy are inconsistent with the provisions of the Constitution as given above, then, in my view, the Constitutional Court has a duty to come in, hear the petition and determine whether indeed there is any act that is being implemented which is inconsistent with the Constitution. For example, the court should be able to receive evidence on measures being taken by government to satisfy itself that they fall within the stated objective XX.” Page 17.

“Where does the right to medical services fall? Is it a fundamental human right that is inherent and granted by the State? In my view, the court would have to make the necessary interpretations of the above provisions of the Constitution. To my understanding, the petition raises issues pertaining to what are called social rights. It calls upon the Constitutional Court to give the right to health a place in the Constitution. This cannot be done without interpreting the Constitution. What does it mean when the Constitution states that fundamental human rights are inherent and not granted by the State, and yet the petition is about the State failing to provide certain health services.” Pages 18-19.

“With great respect to the Constitutional Court, 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 the Government. In my view, the court is required to determine whether the Government has provided or taken ‘all practical measures to ensure the basic medical services to the population’. In this case, it is maternity services in issue. The allegation by the petitioners is that the Government has failed to do so. If the Court has no Constitutional mandate to hear and determine this allegation within the Constitution, then where does the citizen go?” Pages 22-23.

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