Joyce Nakacwa v. Attorney General, et al.

[2002] UGCC 1; Constitutional Petition No. 2 of 2001
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On June 21, 2001, the petitioner delivered a baby by the roadside and visited the second respondent’s Naguru Maternity Home/Clinic with the baby still attached to her. She received no medical care and was referred to another hospital. The petitioner was unable to walk the distance and was forced to sit outside with her newborn child.

Later, the petitioner was taken to a clinic by a passer-by. Upon returning to her residence in the Nakawa Trading Centre, the petitioner was accused of stealing the child by the third respondent and other residents in a mob. She was subject to unlawful vaginal examinations by the third respondent, who used polythene bags as gloves, in full view of all the other residents.

The petitioner was arrested on the suspicion of “child stealing” and her child was taken to the Sanyu Babies Home. The petitioner remained in prison in unsanitary conditions for five days without being charged. After her release on June 25, 2014, the petitioner was kept in suspense about her child’s location for more than a week. She went to the Sanyu Babies Home on July 3, 2001, and was informed that her child had died on July 2, 2001.

The petitioner alleged that the acts and omissions of the respondents violated her rights under the several articles of the Constitution, including: 22(1) (right to not be deprived of life); 24 (right to not be subject to cruel, inhuman, and degrading treatment); and 33(3) (guaranteed provision of medical and/or maternity care). Furthermore, the petitioner alleged that the child’s right to be cared for by a parent was infringed under article 34(1) of the Constitution.

 

In this decision, the Constitutional Court of Uganda dealt with two preliminary objections raised by the respondents, but did not address the allegations and substantive questions raised by the petition itself.

The first objection was that the petition did not raise any issues requiring constitutional interpretation and, therefore, was outside the Court’s jurisdiction. The Court dismissed this objection and held that it had the jurisdiction to entertain this petition because it had to interpret whether the alleged acts and omissions had contravened the petitioner’s constitutionally guaranteed rights.

The second objection was that the petition was time barred because it was not submitted within thirty days of the petitioner’s release from custody. The Court held that the petition was not time barred because the stipulated 30-day period began after the petitioner learned about her child’s death.

“This petition raises issues which can be put into two categories: - In the first category, the petitioner complains, that she was denied medical treatment, that she was subjected to degrading and inhuman treatment, that she was tortured, that her privacy was violated, that her child was denied care and protection from her mother, and that the child was deprived of a chance to live to mention but a few.” Page 11.

“This court must consider three matters: -

(i) Were these acts actually committed against the petitioner and her child?

(ii) Who is responsible for the acts or omissions?

(iii) Do these acts and/or omissions contravene constitutionally guaranteed rights and freedoms?

It is our view, that the first two questions do not involve any interpretation of the constitution. But the third question does involve an interpretation of the Constitution. Whereas the first two questions could easily be handled by a competent court, that court may be forced to seek the opinion of the Constitutional Court on the third question before disposing of a case where the three questions arise. In our view, this court is obliged to entertain any petition if it raises questions that include the third question posed above. It falls under article 137 of the Constitution and this court has jurisdiction.” Page 11.

 

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