Public interest litigation and the enforcement of the right to health in uganda: Opportunities and challenges



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PUBLIC INTEREST LITIGATION AND THE ENFORCEMENT OF THE RIGHT TO HEALTH IN UGANDA: Opportunities and challenges

Presentation by Ms. Namusobya Salima

(ISER)

February 2014
Introduction
Uganda still grappling with many health challenges

Despite comprehensive HSSIP & NHP, no universal and equitable health care system, health services continue to be functionally weak

2013 Human Development Report indicates Uganda has low human development in Health. only 48% of Ugandans satisfied with quality of healthcare

Gaps in access to health care between rural and urban areas, and between social groups

Limited budge support for health, drug stock-outs

Maternal mortality at 438/100000 , IMR at 54/1000, HIV/AIDs prevalence at 4030/100000.



Utility of PIL in Health
Potential to catalyze legal and policy reform

Can reduce inequity through causing resource redistribution

Enhance government accountability and improve priority –setting for health sector financing

Raises public awareness that can trigger social movements and citizen advocacy

Enhances access to justice and remedies for victims of health rights violations

Litigating the right to Health in Uganda

PIL still under utilised in area of health

Complex legal framework

Activists still reluctant to bring cases – limited knowledge and experience, political environment

Weaknesses with judiciary & quasi judicial bodies– judgments very inconsistent , limited training, no activism

No awareness among rights holders

No reliable statistics and limited research

International litigation – no ratification (op.protocol, African court)

Legal Framework for Litigating R2H

Locus standi – Art. 50 (1 &2)

Uganda ratified several regional International Human Right Instruments providing for right to Health (ICESCR, ACHPR etc)

No substantive right to health under BOR

NODPSP (objective xiv-health services, clean and safe water, decent shelter, food security etc, XX- basic medical services to the population, XXI –clean and safe water, XXII- food security and nutrition.

Legal framework continued…

Art. 8A – makes preamble justiciable

Art. 45 – BOR does not exclude other rights

Art. 287 – international instruments

Art. 39 – Right to clean and healthy environment

Art.33(3)- Protection of women’s maternal functions

Art.40 (1) – work under safe & healthy conditions

Arts. 40(3), 34(3&4), 35(1), 26(2), 23(1)d,22(1&2)
Institutional framework
Courts of Judicature –High court, constitutional court (arts. 50 , 137)

Quasi-Judicial bodies

UHRC

EOC



The Uganda Medical and Dental Practitioners Council

Jurisprudence: Progressive beginning beset by inconsistency

Salvatori Abuki & Anor V AG- EgondaNtende J
[T]he right to life is inviolable. I take this view guided by the National Objectives and Directive Principles of State Policy which we are enjoined to apply in interpreting this Constitution in part thereof. I take comfort in part (xiv) General Social and Economic objectives…An exclusion order under section 7 of the witchcraft Act seems to me to be set in the opposite direction from assuring access of the person banished to any shelter, food, security, clean and safe water, and health services.
Horizontal claims by tobacco smokers

Vincent Oribi V BAT

Thomas Okumu V BAT & Mastermind Tobacco ltd. (court sought to determine whether case was representative/class action suit or a PIL case. Case dismissed because court found it was a class action and plaintiff did not notify and seek the consent of the people he sought to represent.
Environmental Health Cases
UETCL V De Samaline Incorporation Ltd.
[T]he right to a clean and healthy environment must not only be regarded as a purely medical matter. It should be regarded as a holistic socio-cultural phenomenon because it is concerned with physical and mental well-being of human beings... a clean and healthy environment is measured in both ethical and medical context. It is about linkages in human well-being. These may include social injustice, poverty, diminishing self -esteem, and poor access to health services. That right is not restricted to a clinical model

Discharge of unpleasant, noxious and chocking dust constituted violation of employees’ right to a clean and healthy environment under Art. 39 .
Environmental Health Cases continued….
Byabazaire Grace Thaddeus v. Mukwano Industries


Court indicated that applicant had no locus standi . Only NEMA has power to sue under NEA



The TEAN Cases

TEAN ltd V BAT ltd
court held that a petition concerning unregulated smoking in public places disclosed no cause of action. Judgment disregarded the flexible locus standi allowed under article 50 of the Constitution that allows anybody to bring a case in public interest regardless of whether they are affected by the violation.

BAT V TEAN ltd - where the court held that spirited persons or groups of persons who may feel obliged to represent those persons or groups of persons may, acting in the public interest do so under article 50(2) of the Constitution

Environmental Health Cases

In The Environmental Action Network Ltd v Attorney General & NEMA (2001)- smoking in public places

&

ACODE V AG & NEMA (2004)

where the court held that the right to a healthy environment entitles Ugandans to a right to an environment adequate for their health and wellbeing.



PETITION 16: A threat to justiciability

CEHURD & Others V AG
First attempt to bring case on substantive health issues – Maternal mortality, EmOC, stock outs

Political Question
(learn from other jurisdictions, but also inadequate research preparation)

Enforcement of rights before the High Court (disregard of article 137(3)- court may make order of redress or refer to High Court)
Towards Effective Utilisation of PIL
•Capacity building (judges and civil society)- training, attachments to judges, research for cases

•Judiciary to develop framework within which to adjudicate right to health

•Activists to develop creative strategies for litigation

•Exploit existing constitutional provisions to argue for justiciability

•Use Equality and non-discrimination as cross-cutting issues.

•Coalition building



•Use of Amicus curiae (Law clinics have a role)

•Use of other strategies to supplement litigation (awareness raising, research & monitoring, advocacy and social mobilisation)


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