/ 17 November 2020

Citizens win case for safe childbirth

Hewlett Foundation Grantees In Uganda
TORORO, UGANDA - JULY 25: Head antenatal nurse Margie Harriet Egessa providing antenatal counseling and checkups for a group of pregnant women at Mukujju clinic. This clinic is supported by DSW. July 25, 2014 in Tororo, Uganda. (Photo by Jonathan Torgovnik for The Hewlett Foundation/Reportage by Getty Images)

Before her daughter-in-law bled to death after refusing to bribe a government hospital nurse for a safe childbirth, Ugandan Rhoda Kukiriza had never set foot in a court. She had never spoken to a lawyer. She had never been involved in a legal case.

Today, the 70-year-old farmer and grandmother is feted in her village as a “victor and a celebrity” after her role in a historic legal triumph for her country and Africa in which she and other citizens stood up to the government in a bid to make the death of Sylvia Nalubowa and all the other deaths of women during childbirth count.

In August, judges finally ruled after nearly a decade-long court case over the loss of Nalubowa and Jennifer Anguko, who also died while giving birth, that the government must prioritise maternal health, in a move which activists say symbolises a “seismic shift”.

“My daughter is irreplaceable,” said Kukiriza in reaction to the rare court victory in Uganda, where legal cases can drag on for years unresolved through a system where corruption often creeps in.

Nakibuuka Noor Musisi, the Director of Programmes at CEHURD, (left) and Rhoda Kukiriza (right), in Kampala after winning the case

“I miss her. But when I got the call from Kampala and the lady said ‘you won’, I jumped. I danced, I sang. I shouted out of joy. It was so long, but we want to see no more deaths that can be avoided.”

A grim statistic is planted firmly in the minds of many in Uganda: 16 women die daily from childbirth-related complications, according to the State of Uganda Children report of 2012-2013.

Nalubowa, the wife of Kukiriza’s son Stephen, died in Mityana Hospital, about 70km from the capital Kampala, in 2009 because of a shortage of medical staff. Less than a year later, district councillor Anguko died in Arua Regional Referral Hospital, in the country’s north, from complications of obstructed labour during a caesarean, caused by nurses’ negligence. 

In 2011, Kukiriza and Inziku Valente, Anguko’s widower, joined forces with the Ugandan nonprofit, Centre for Health Human Rights and Development, and Professor Ben Twinomugisha of Makerere University School of Law, to sue the government in a landmark petition. They challenged the government’s failure to adequately provide basic maternal healthcare services and emergency obstetric care in public health facilities, arguing that this violates the right to health, the right to life and the rights of women as guaranteed under Uganda’s Constitution. 

On 19 August, five judges unanimously ruled that women’s rights had been abused. Their families were to be awarded compensation of $40 000 each for the “psychological torture, violation of the rights to life, health and cruel and degrading treatment of their loved ones”. 

Activists carry placards during a peaceful march in the capital Kampla to protest the delay by a Ugandan court to deliver a ruling in a landmark lawsuit regarding the cases of two women who unattended bled to death while giving birth in Ugandan hospitals. Health rights and advocates marched on the constitutional court to hand over a statement to the registrar of the court over delayed a ruling on the constitutional petition No. 16 of 2011, a landmark Constitutional court case on avoidable maternal deaths in public hospitals. The petitioners argue that by not providing essential medical commodities and health services to pregnant women, the government is violating the constitutional rights of Ugandans.

The judges ordered that all healthcare workers who provide maternal healthcare services in Uganda be fully trained and all health centres be properly equipped within the next two financial years. The government must also report to parliament with a copy of the report shared with the Constitutional Court on their compliance with the ruling for the financial years 2020-2021 and 2021-2022.

Ibrahim Nsereko, a strategic litigation programme manager at the Centre for Health Human Rights and Development, said this marked the first time that a court in Africa had directed the government to fund maternal health or the health sector.

“Even in South Africa, where they have the right to health in their constitution, courts have not been that brave to go ahead and direct government to have funding for the sector,” he said. “That is the shock [to us]. But we believe that courts are now shifting in terms of appreciating social economic rights and if we have this trend we are going to have a lot of progress in terms of social economic rights including health.”

Through the 2001 Abuja Declaration, African countries have vowed to set a target of at least 15% of their annual budget to improving the health sector. Only South Africa and Rwanda had met this by 2011, according to a report.

The very week that the Ugandan government was dragged to court, it bought fighter jets. The Coalition to Stop Maternal Mortality in Uganda, formed soon after by the Centre for Health Human Rights and Development and nongovernmental organisation Health GAP and made up of 57 Ugandan civil society organisations, helped them to tirelessly push the reality of the political neglect of the health sector forward. This pressure combined with litigation made the movement different from others in the country, they said. 

“You cannot work alone,” said Nsereko, remembering all the times it was standing room in court only, with the judges acknowledging the presence of community supporters.

Universities and scholars, including Professor Noah Benjamin Novogrodsky from the University of Wyoming, who helped with an appeal after the case was thrown out of court, and Kukiriza and Inziku Valente as petitioners, who never faltered gave the campaign extra “mileage”, said Nsereko.

When Kukiriza was first approached about being involved in the case, she felt daunted. 

“My first time in court I prayed to God to always guide me on what to say, to be calm and patient,” she said. She lost track of how many times she would travel from Mityana to Kampala on a bodaboda (motorcycle taxi) for hearings. “It was difficult, but I was not going to disappoint my late daughter-in-law [and] I knew this would bring justice for the entire country,” she said.

Professor Ben Twinomugisha

After almost 10 long years challenging the government, it may be hard to believe that the activists say they’re now in an even tougher fight to enforce the ruling. 

“The overwhelming force perpetuating the maternal mortality crisis in Uganda is the result of lack of political will of the government,” said Asia Russell, executive director of Health GAP. 

“Successful implementation of the ruling requires vigilance and action by activists, starting with an emergency appeal for increased investment to fight the leading causes of maternal death.”

Uganda’s health funding as a share of the national budget has shrunk, while defence spending has skyrocketed from $260-million to $717-million — unbelievably the same size as the proportion for health. Meanwhile, the Covid-19 response has resulted in the deaths of pregnant women. At least seven women died because of a transport ban during a Covid-19 lockdown earlier this year, according to a report.

National budgeting preparatory work is being conducted for the 2021 budget, a crucial year when Uganda will head to the polls. Both the finance and health ministries continue to point the finger at each other on the issue of where the money for improved maternal health will come from.

A spokesperson for the ministry of health, Emmanuel Ainebyoona, said the budget planning process for the next financial year was still underway. “It is premature to determine the definite allocations at this point in time,” he said. 

The ministry of finance could not be reached for comment. 

Attorney general William Byaruhanga would not say when the families’ compensation would be paid. 

“We are still studying the court decision and engaging with stakeholders on its implications and implementability in order to decide on the appropriate way forward,” he said.

Last week, activists were expected to travel to Arua to meet district officials, followed by Mityana, before meeting parliamentary and health and finance ministry officials to explain what the judgment means.

In Mityana, Kukiriza is already telling her fellow villagers that they too can challenge the government over their rights. 

“Everywhere I go I speak to women,” she said. “Through my activism, I will look to see that the judgment is enforced.”