Discussion on the RIGHT TO HEALTH in Uganda

Domestic and Regional provisions 

Health can be defined as the state of complete physical and mental wellbeing and not merely the absence of infirmity or disease. The 1995 Constitution of the Republic of Uganda does not expressly provide for the right to health although it has explicit provisions from which the right is merely inferred from for instance under the national objectives of state policy including but not limited to Objective XX on the state’s duty to ensure the provision of basic medical services to the population, Objective XXI which provides for clean and safe water at all levels and Objective XXII which provides for food security and proper nutrition.

 Article 21 on equality, Article 22 on life, Article 39 on the right to clean and healthy environment, Article 35 which provides for the right of Persons with disabilities to respect and human dignity and further bestows a duty on the State and Society to take appropriate measures to ensure that they realize their full mental and physical potential among others. 

In the same premise, Uganda is also a  party to many International treaties, which are rich sources of health law including Article 12 of the International Covenant on Economic Social and Cultural Rights which provides for  the right to enjoy ‘the highest attainable standard of health” i.e. physical and mental health. 

Furthermore, Article 118 of the Treaty for the Establishment of the East African Community (EAC) which obliges the partner states to promote harmonized national health policies and regulations in order to enhance the efficiency of health care systems and cooperate in the development of reproductive health services.

Needless to add is the fact that the government of Uganda has also enacted various statutes relevant for health including the Mental health Act, 2018, Persons with disabilities Act 2020, the Venereal Diseases Act, Cap 284, Public Health Act Cap 281,; the Water Act Cap 152, National Medical Stores Act, Cap 207; National Drug Policy and Authority Act, Cap 206; National Environment Act, Cap153 among others.

In the same premise, Courts have also been explicit towards the realization of the right to health and a case in point is the landmark decision in   David Mugerwa vs. A.G & Others 2012 wherein the High Court of Uganda explicitly held that the right of the deceased mother to basic medical care was violated by the district hospital due to its failure to provide emergency obstetric care.

Be that as it may, Article 20(1) of the 1995 Constitution declares human rights as including those that are inherent and not granted by the state and similar to that is Article 20(2) which imposes a duty on all government organs, agencies and persons to respect, promote and uphold every human right including health related ones. This is further, reinforced by Article 21(4) which guarantees that no provision against discrimination prevents Parliament from enacting laws necessary for the implementation of policies and programmes aimed at redressing any imbalance in society or providing for any matter acceptable and demonstrably justified in a free and democratic society. The obligations set out above are threefold. 

However, it is imperative to note that the duty to respect human rights is a negative obligation which requires the state and all persons to refrain from interfering with the enjoyment of the right to health. 

Another vital development in Uganda’s health sector was the adoption of the Patients Charter by the MOH in 2009 which was a deliberate attempt by the government to provide a framework for its citizens to exercise responsibility and make appropriate choices that promote their health and wellbeing. Citizens also have a responsibility to monitor and promote accountability for the service provided and uphold the principles of human dignity, equality and equity at all levels.

Without prejudice to the foregoing, Article 24 of the constitution explicitly provides for the respect of human dignity and freedom from torture, cruel, inhumane and degrading treatment and this element was clearly elucidated in the case of Joyce Nakacwa v Attorney General & 2 others (Constitutional Petition No.2 of 2001 wherein the petitioner delivered a baby by the roadside near Naguru Hospital before  proceeding to the Maternity Clinic with the baby still attached to her after birth to complete the birth process but received no medical care and was instead referred to Mulago Hospital without a referral letter. She lost her baby and sued claiming that the hospital’s denial to offer her a decent place to complete the birth process violated her right to freedom from torture and cruel, inhuman and degrading treatment. The court acknowledged that the medical worker’s omissions contributed to the death of the child. 

In conclusion therefore, the state of Uganda clearly recognizes the right to health as evidenced from the various legislation and case law above although it has not been fully realized due to the limited resources committed to the sector among other factors.

Article written by Gukiina Patrick M.

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