Posted on behalf of KC Sharifah
The long awaited Maternal Petition in Uganda was finally heard last week (October 20, 2011) but took on a new twist.
The petition, which was heard by a panel of five judges, led by the Deputy Chief Justice of Uganda Honorable Lady Justice Mpagi Bahigeine. Also on the panel were Honorable Lady Justice C.K Byamugisha, who presided over the case as the Justice of Appeal, Justice Steven Kavuma, Justice A.S Nshimye and Justice Remmy Kasule.
The hearing started at 9.30am and ended at 2.00pm, with arguments between the judges, lawyer Kabanda David from the Centre for Health, Human Rights and Development (CEHURD), who was representing the petitioners, and the Principle State Attorney Patricia Mutesi.
The Principle State Attorney told the court she was raising a new preliminary schedule (objections), which caused Judge Justice Mpagi Bahigeine to raise her voice and ask “you had so much time that is why you have become relaxed?”.
“Why didn’t you communicate to your friends? Why didn’t you file the preliminary objection in time?” asked Justice Kavuma.
“I apologize my Lord,” was the Principle State Attorney’s humble reply.
Mutesi told court that the state objected to the petition as it did not specify individual cases or acts of omission but only gave broad statement about the general status of the maternal sector in Uganda.
She said: “The petition deals broadly with all hospitals and all health centers and also covers all expectant women and what is stated to be the government’s non provision of basic healthcare to women, which leads to what the petitioner calls the unacceptable high maternal death in Uganda,” said the Principle State Attorney.
Mutesi said the petition requires the court to review government policies and their implementation, and the performance of government’s economic policies in general.
She added: “How will they know that it is not the negligence and delay of pregnant women to attend antenatal care which brings about the problems they face? They tend to go to traditional birth attendants and forget visiting health facilities.”
She added that the petition called the court to review the efficiency of the health sector and also the subsector of maternal health, something that necessitates the court to make findings or determinations on government policy.
She said the petition also raised the issue of whether there has been adequate resources allocated to the health sector but that these are matters regarding the constitution and law and should be reserved for cabinet and parliament.
The Principle State Attorney advised the petitioners to address a new petition that highlights only two cases, or to name specific hospitals, doctors or nurses.
She added that the ‘doctrine of political question’ means certain issues are supposed to be determined by one body of government and it is not for another branch - the judiciary - to come and determine these issues.
Mutesi said the grounds for objecting to the petition is that it is too broad, because it covers all hospitals and all health workers. She said that the petitioners claim health workers are negligent - for example there’s inadequate human resources - but that this is too broad a way of bringing a case to court as it calls for a review of the entire sector.
She added: “I have told court that we don’t have evidence of what goes around in all hospitals. And what standard is court going to use if they say the money they [the government] gives is too little?”
Meanwhile, Kabanda told court that 94% of women in Uganda receive at least the first antenatal care but only 34% go back in the hospital to give birth. He cited Article 176 of the constitution of Uganda, which establishes local government responsibility for health. However, he argued that there should be a mandate on central government not local government to implement these policies.
In an interview with the press after the hearing, Kabanda said: “We are here for health rights, rights to life and rights of women under Article 33 of the constitution. Their quotation is we cannot bring a case for the whole nation, they want us to bring [a] particular case, so we are telling court that no, women are continuing to die, we have the data, we have the statistics.
“…we are submitting before the constitutional court; it has the mandate. Look at the acts and the actions that are complained of and see whether they are contradicting with the constitution.”
This is the second time judges heard this petition. It highlights the death of Sylvia Nalubowa of Mityana and Jennifer Anguko, a district councilor from Arua both of whom died during childbirth due to alleged neglect by health workers and lack of adequate medical equipment.
The lead Judge Deputy Chief Justice Mpagi Bahigeine adjourned and promised that ruling will be on notice. Our humble prayer is that this court finds wisdom in handling this case.
- Lawyers from CEHURD behind Maternal Petition from extreme right Mulumba Moses, Prima Kwagala, Noor Nakibuuka ( with spects), Ibrahim Nsereko and Edrine Wanyama in court
- Judges noting points from both sides, the petitioners and the Government
- Lawyer Kabanda David from Centre for Health Human Rights and Development argues with Principle State Attorney Patricia Mutesi over the submission of new preliminary objection the day of hearing
- Rhoda Kukiriza seated next to people from Civil Society Organization
