By Margherita Cinà
On 30 April 2015 the High Court of Uganda at Kampala rendered a judgment on a suit brought by the Center for Health, Human Rights, and Development (CEHURD) against the Nakaseke District Local Administration for the violation of Nanteza Irene’s maternal health rights. The deceased was an expecting mother who passed away after eight hours in the hospital without proper care for her haemorrhage and ruptured uterus.
The High Court’s decision on the right of women to access emergency obstetric care is a step towards the realization of maternal health rights of women in Uganda. The case comes at a time when Uganda’s maternal mortality ratio remains high at 440: 100,000 live births. These tragic deaths are preventable, however Uganda’s health care facilities lack emergency obstetric care services, adequate and well-motivated health workers, specifically midwives and doctors, and essential maternal health drugs and supplies.
The tragedy leading to this case occurred on the 5th of May, 2011 when Mr. Mugerwa brought his wife to delivery their baby at Nakaseke Hospital. After 9 months of pregnancy, Ms. Nanteza and her spouse were so excited to welcome a new member into their family. The joy of knowing that they were going to be parents to a new baby was quickly replaced with fear and nervousness. When the nurse detected at 4.00pm that she suffered from an obstructed labour, no doctor was present at the hospital to perform the cesarean section necessary to save the life of Ms. Nanteza and her baby. The nurse made several unsuccessful attempts to reach the doctor on duty but he only arrived at the hospital after Ms. Nanteza had been in labour for over eight hours. Being increasingly scared of what might happen to his spouse, Mr. Mugerwa desperately attempted to get her transferred via ambulance to Kiwoko Hospital but the hospital administrator would not grant this request. At around 9.00pm, the doctor finally arrived but it was too late to save the life of Nanteza who died in extreme pain shortly after.
It was under these circumstances, and with the hope of achieving system-wide changes in the administration of Nakaseke Hospital and other hospitals across Uganda, that CEHURD brought a case against Nakaseke District Local Administration, the local government in charge of administering oversight over the hospital, rather than targeting individual health workers in the hospital.
In its decision, the High Court referred to Article 33 (3) and Article 34 (1) of the 1995 Constitution of the Republic of Uganda to conclud that Nanteza’s human and maternal health rights and the rights of her children and spouse were violated. It was also declared that the deceased’s right to basic medical care was violated. The Court held that Nakaseke District Local government was vicariously liable for the acts of the doctor and the hospital administrator who failed to ensure the provision of emergency obstetric care urgently required by Ms. Nanteza or to transfer her to a medical facility that had the capacity to treat her. The Court also awarded general damages to Mr. Mugerwa and his children for violating the human rights of the deceased, her children and her spouse.
Analysis of the case
One of my first tasks as an intern at CEHURD was to examine and critique this judgement. I found that, while the judgement was favourable for the plaintiffs, the judge did not focus sufficiently on the human rights violations that occurred during the deceased’s time at the hospital. The first two issues brought before the court were: (1) whether the deceased’s right to life, to health, freedom from inhuman and degrading treatment, and equality were violated; and (2) whether the rights of her children were also violated. However, the judge focused on the negligent acts and omissions of the doctor and the superintendent rather than on the human rights implications of these actions. This focus on negligence pulls attention away from the issue being litigated, that is, the violation of the right to access to health services.
Negligence
By determining this case on the basis of negligence, the judgment focuses too much on the individual acts of the doctor and the superintendent rather than on the systemic issues that are associated with the lack of provision of adequate health services. The judge made numerous references throughout the judgment to the doctor’s “flagrant act of neglect of duty” and described him as a “consummate liar”. While these representations may be accurate, they only portray a small fraction of the situation.
Violation of Human Rights
The judge made a deductive leap from the determination of the negligent acts and omissions of the doctor and superintendent to the conclusion that there was a violation of the deceased’s and her children’s human rights. He did not rely on international or regional instruments, or judicial precedent on the issues of health as a human right.
The judge appropriately identified the relevant articles in The Constitution of the Republic of Uganda that relate to the protection of women and their rights (Article 33(3)) and on the best interest of children to have their parents care for them (Article 34(1)). While these articles are not specific to health, they are relevant to ground the discussion in the local context. The judge’s human rights analysis however stopped there.
There are many relevant international and regional instruments that should have been examined in order to come to the conclusion that there was a violation of human rights. International and regional instruments specific to the right to health or to the protection of women and children’s rights should have been examined.
The right to health is enshrined in international and regional conventions. For example, Uganda is a signatory of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which recognizes everyone’s right to enjoy “the highest attainable standard of physical and mental health” (Article 12(1)). This article further specifies the steps that should be taken by State Parties in order to achieve the goals of the ICESCR, which includes “the creation of conditions which would assure to all medical service and medical attention in the event of sickness” (Article 12(2)(d)). Article 12 of the Convention on the Elimination of All Forms of Discrimination Against Women, of which Uganda is also a signatory, repeats Article 12 of the ICESCR specifically for women, by stating that “State parties shall ensure to women appropriate services in connection with pregnancy”. Regionally, the African Charter on Human and People’s Rights (Banjul Charter) additionally protects these rights (Article 16).
In the present case, the judge could have relied on these articles to argue that the hospital’s actions and omissions were contrary to Uganda’s obligations under the ICESCR, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Banjul Charter. The doctor’s absence in the hospital and the hospital’s failure to transfer the deceased to another hospital, demonstrate the failure to provide the deceased with the required medical service and medical attention needed. In order to properly address the human rights issues at play, the judge should have relied on these conventions when he came to the conclusion that the deceased “did not receive the appropriate expected obstetric care to aid safe delivery of her child” (page 5 of the judgment).
The Honourable Benjamin Kabiito wrote very little on the second issue of the violation of the children’s rights. The right to be cared for by parents is also protected in the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. While reliance on these conventions would not have changed the verdict, it would have provided a stronger human rights argument.
It should also be noted that there was no reference to any previous cases on the issue of health and human rights or on maternal mortality. The judge relied solely on the tort of negligence to render his decision.
The judge did not make use of the available human rights tools when rendering this decision. When discussing the constitutional protection of women and children’s rights in Uganda, the judge could have used this as an opportunity to discuss these rights in the international and regional context. Specifically, the judge could have used the instruments mentioned above as tools to further interpret the Article 33(3) and Article 34(1) of The Constitution of the Republic of Uganda.
Why is this distinction important?
The goal of this suit was to establish precedent to contribute to the growing comprehensive framework on the right to health in Uganda. By focusing on the negligent acts and omissions of the hospital employees and finding the Nakaseke District Local administration vicariously liable, the analysis in this case will contribution little to the discourse of health as a human right. The doctor’s negligent behaviour can contribute to a finding of a violation of human rights but it is not sufficient on its own to contribute to a framework on the right to health in Uganda.
This judgment was a victory for Mr. Mugerwa and his family, and should be seen as a step forward for women’s rights in Uganda. It sends a strong message to other local governments, Parliament, and Cabinet that the right to access emergency obstetric care has to be respected, protected and fulfilled in Uganda. This judgement also indicates however that continued work needs to done to train current and future judges on human rights issues in order to strengthen the health and human rights discourse in Uganda.