The case has already contributed to improved jurisprudence on socioeconomic rights in Uganda.
When Sylvia Nalubowa went into labour in Uganda’s Mityana district in August 2009, she was taken to a local health centre where she expected to have a normal birth, supervised by a midwife.
After she had delivered her first baby the midwife realised there was a twin on the way. The midwife recommended that Nalubowa be taken to the district hospital where a doctor could handle the second delivery.
But when she arrived at the Mityana District Hospital in Central Uganda, the nurses asked for her maternity kit. This is commonly known as a “mama kit” and contains a plastic sheet, razor blades, cotton wool or gauze pad, soap, gloves, cord ties, and a child health card. All mothers delivering babies in Ugandan hospitals and clinics are expected to bring their own “mama kits” when they go into labour.
But Nalubowa had used her “mama kit” at the first health facility when delivering her first child. The nurses would hear none of her excuses and demanded money to purchase the kit before they could attend to her.
Nalubowa and her baby died.
Jennifer Anguko died under similar circumstances. She arrived at the Arua hospital in North Western Uganda at 8.30am on December 10, 2010 but was not attended to for 12 hours by which time her condition and cries for help were out of control.
One hour later she was taken to theatre but she and her baby died during the procedure. The cause of her death listed in the post mortem report was a ruptured uterus.
The women’s cases are two of many
Sixteen women die in Uganda every day during child birth in instances that could be avoided. In 2011, the World Health Organisation reported that Uganda registers up to 440 deaths for every 100 000 live births.
Most maternal deaths in Uganda are due to severe bleeding, infection, hypertensive disorders and obstructed labour. Others are due to causes such as malaria, diabetes, hepatitis and anaemia. All these are aggravated by pregnancy.
The Ugandan government is committed to providing all citizens with free health services. But it is common to go to a government health facility and find that medicines are not in stock and health workers are not paid. Patients also say that they are often met by health staff who are unenthusiastic about attending to patients expecting free services.
In 2013, the doctor to patient ratio in Uganda was estimated at one doctor for just under 25 000 patients. The nurse to patient ratio sat at one nurse for 11 000 patients.
The country’s public health system has a tiered structure with two national referral hospitals, 11 semi-autonomous regional referral hospitals, and a well established district health system with healthcare centres in 56 districts.
Health care services are financed through general tax revenue and donor funding. Although user fees for health services in public facilities were abolished in 2001 patients are still expected to make direct out-of-pocket payments for some services and drugs.
Fighting for a right
In 2011 lawyers at the Centre for health, Human Rights and Development, a non-profit, research and advocacy organisation, began gathering evidence to hold the Ugandan government to account for Nalubowa and Anguko’s deaths.
The case is now before the country’s Constitutional Court.
In what has turned into a landmark case, the centre has argued that failing to provide essential maternal health commodities in government health facilities is an infringement on women’s rights. The rights to life as well as health are guaranteed under the country’s constitution as well as international human rights instruments the government has signed up to. These include the:
- International Covenant on Economic Social and Cultural Rights (ICESCR),
- Convention of Elimination of All forms of Discrimination Against Women (CEDAW), and
- Maputo protocol.
The court erred
At the first hearing before the Constitutional Court government lawyers objected to the case. They argued that the judiciary was not competent to hear a case that required the executive arm of government to allocate resources to the health sector.
The court agreed and dismissed the case.
But the centre appealed to the Supreme Court, the highest court of appeal in Uganda. It argued that the justices of the Constitutional Court erred in denying them an opportunity to hear the case based on its merits.
In October 2015 the Supreme Court’s seven judges agreed. They made a unanimous ruling that the Constitutional Court judges had erred in dismissing the case. In their judgment they argued that the case had key questions that needed constitutional interpretation for the people of Uganda.
They contended that there is nothing the executive or legislature can decide on that may not be subjected to judicial review – especially if it is done in line with the constitution. And they have ordered the Constitutional Court to hear the case which is now before the Constitutional Court pending a hearing by a new panel of judges.
Making health care a priority
The case has contributed to jurisprudence to help people realise their social economic rights in Uganda.
But it has also catalysed improvements in health service provision. Since the case was initially heard government funding for the health sector has improved from US$ 215 million (UGX 737.60 billion) to US$ 328 million (UGX 1127.48 billion) and more health workers have been recruited. Mothers, however, are still expected to bring their own “mama kits” when going into labour.
There has also been a reduction in maternal deaths. These have fallen from 440 deaths for every 100 000 live births in 2010 to 343 by 2015.
Most importantly, civil society organisations are now, more than ever, alert to demanding women’s health care rights.
* Primah Kwagala, a human rights lawyer at the Centre for Health, Human Rights and Development (CEHURD) where she manages strategic litigation programmes, was integral in the writing of this article.