Ugandan Constitutional Court Upholds Right To Adequate Maternal Healthcare As A Constitutional Right

By Vatsal Patel
Vatsal Patel is a final-year B.A. LL.B. (Hons.) student at the Institute of Law, Nirma
University, Gujarat (India) with a keen interest in constitutional and human rights law.

In the seminal opinion of CEHURD v. Attorney General, the Constitutional Court of Uganda
(“CC”) upheld adequate maternal healthcare, inter-alia, as an independent constitutional
right under Article 45 of its constitution [1]. Accordingly, it directed the State to efficiently
train all its medical healthcare staff within a period of two-years. The CC’s act received a
positive response from human rights activists, who view it as a correction of the court’s
previous error when it denied to hear this matter and failed to scrutinise the State’s action
from a rights-based perspective [2,3,4].​

The Constitution of Uganda has unenforceable National Objectives which allude to
independent healthcare as a goal to be realised by the State under objective XIV and XX, but
it lacks an explicit mention of any such enforceable right to health [5]. As a result, similar to
jurisdictions across the globe, the CC was faced with two problems: firstly, locating such a
right within the enforceable segment of the constitution; and secondly, delineating clear and
substantive content for this right. They must strike a balance between claims of “progressive
realisation” on one hand, and “minimum core” on the other [6].

While the idea of progressive realisation would require protection and enforcement of legal
rights based on the availability of State resources, the principle of minimum core is the idea
that socio-economic rights have a minimum legal content which should be enforced against
the State irrespective of economic considerations. The latter is premised on the notion that
there are certain “minimum essential levels” that are mandatorily required in order to have a
dignified existence.

In an opinion cognizant of the complexities of this task, Cheborion, J (speaking for all
judges) appreciated the concept of progressive realisation However, in doing so, he also
upheld that the State’s defence of lack of availability of resources could never become a
“blanket excuse” in cases concerning “basic services” [7].

Based upon statistical data, the CC found an increase in the number of maternal deaths over
the years with no corresponding evaluation of existing healthcare schemes. Consequently, it
observed this to be an unreasonable action on part of the State which failed in its duty to
consider basic and essential needs of a vulnerable section (women) of society [8]. In this way,
the CC held that it was not sufficient for the State to simply have ‘a’ or ‘any’ healthcare
scheme, but instead they must provide a reasonable one.

Interestingly, taking a holistic view of the Constitution i.e. interpreting a Constitution as a
collection of all its provisions, instead of only relying on its separate clauses, the CC read the
Constitution’s unenforceable National Objectives into its enforceable right to life guarantee
under Article 22 [9,10]. This approach is similar to the Indian Judiciary’s where they
interpreted various unenforceable Directive Principles of State Policy under Part IV of the
Indian Constitution as its enforceable fundamental rights under Part III of the Constitution,
making socio-economic rights justiciable before a court of law [11].

Although the judgment of the CC is path-breaking in fixing a positive duty upon the State to
ensure essential maternal healthcare services regardless of its financial constraints, critics
raise three pertinent concerns.

Firstly, despite its novelty, the CC limited itself to only emergency maternal healthcare
services in public healthcare facilities and failed to consider the significance of a general right
to “emergency treatment” as being enforceable. Thus, while the court could have broadened
the scope of the right to health, while being consistent with its reasoning of minimum core
obligations, it chose not to. Relying on comparative constitutional law, it could have followed
the procedure of the Indian Supreme Court in Paschim Banga v. State of W.B. [12] wherein
detailed guidelines were issued to safeguard the right to emergency treatment of all
individuals.

Secondly, the CC simply declared a link between the right to clean and healthy environment
under Article 39 and the right to adequate maternal health without any reasons for the same.
In the absence of a coherent explanation, these words hold no water.

Thirdly, the court is inexperienced in implementing court orders dealing with socio-economic
rights. This problem could be augmented through a binary understanding of separation of
powers doctrine where courts have the power to only interpret laws and Legislature to only
make laws [13]. However, these problems could be avoided by resorting to “dialogical
review”, which allows for the Judiciary to question and suggest changes to the policy
decisions of the State, to make the State more accountable [14]. In the present context, this
​could be done by further probing the yearly audit reports that the CC directed the State to file[15].

In conclusion, these criticisms of the judgement must be understood in light of the raising
importance of socio-economic rights in an increasingly unequal world [16]. There is no doubt
about the transformative change that this judgement will bring to numerous women across
Uganda. However, the potential for expanding the right to health still remains, and must be
explored during future constitutional claims that arise before the CC.

References
1. CEHURD v. Attorney General (2020). https://ulii.org/ug/judgment/constitutional-court-
uganda/2020/12.
2. Okiror, Samuel. “Uganda court rules government must prioritise maternal health in ‘huge
shift’” The Guardian. August 21, 2020. https://www.theguardian.com/global-
development/2020/aug/21/uganda-court-rules-government-must-prioritise-maternal-
health-in-huge-shift.
3. Kavuma, Richard. “Uganda’s supreme court rules maternal health suit must be heard”
The Guardian. October 30, 2015. https://www.theguardian.com/global-
development/2015/oct/30/uganda-maternal-health-supreme-court-ruling.
4. CEHURD v. Attorney General (2012). https://ulii.org/ug/judgment/supreme-court-
uganda/2012/4-0.
5. Mbazira, Christopher. “Uganda’s Hybrid Constitutional Protection of Economic, Social
and Cultural Rights” In The Protection of Economic, Social and Cultural Rights in
Africa, edited by Chirwa, Danwood and Chenwi, Lilian, 447-475. Cambridge University
Press, 2016. https://www.cambridge.org/core/books/the-protection-of-economic-social-
and-cultural-rights-in-africa/ugandas-hybrid-constitutional-protection-of-economic-
social-and-cultural-rights/D58B4926A7AB4D606878383B40E9E692.
6. Young, Katherine. “The Minimum Core of Economic and Social Rights: A Concept in
Search of Content” The Yale Journal of International Law, 33 (2008).
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1337&context=yjil.
7. CEHURD v. Attorney General (2020), 30-31.
8. Ibid., 33.
9. Amar, Akhil. “Intratextualism” Harvard Law Review, 112, no. 4 (1999).
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1843&context=fss_papers.
10. Dorf, Michael. “Interpretive Holism and the Structural Method, or How Charles Black
Might Have Thought About Campaign Finance Reform and Congressional Timidity”
The Georgetown Law Journal, 92 (2004).
https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1081&context=facpub.
11. Abeyrante, Rehan. “Socioeconomic Rights in the Indian Constitution: Toward A Broader
Conception of Legitimacy” Brooklyn Journal of International Law, 39, no.1 (2014).
http://dspace.jgu.edu.in:8080/jspui/bitstream/10739/1088/1/Socioeconomic%20Rights%
20in%20the%20Indian%20Constitution_%20%20Toward%20A%20Broade.pdf.
12. Paschim Banga v. Union of India (1996). https://indiankanoon.org/doc/1743022/.
13. Centre for Human Rights and Development, “Review of constitutional provisions on the
right to health in Uganda: A case study report” EQUINET Africa, September 2018.
https://www.equinetafrica.org/sites/default/files/uploads/documents/CEHURD%20Const
itutional%20Review%20Sep2018.pdf.
14. Bhatia, Gautam. “Coronavirus and the Constitution – XXVIII: Dialogic Judicial Review
in the Gujarat and Karnataka High Courts” Indian Constitutional Law and Philosophy,
May 24, 2020. https://indconlawphil.wordpress.com/2020/05/24/coronavirus-and-the-
constitution-xxviii-dialogic-judicial-review-in-the-gujarat-and-karnataka-high-courts/.
15. CEHURD v. Attorney General (2020), 58.
16. United Nations, Department of Economic and Social Affairs. World Social Report 2020:
Inequality In A Rapidly Changing World.
https://www.un.org/development/desa/dspd/wp-content/uploads/sites/22/2020/02/World-
Social-Report2020-FullReport.pdf.

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