Transcript Public Interest Litigation and the Enforcement Of the Right To Health

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, XXbasic medical services to the population, XXI –
clean and safe water, XXII- food security and
nutrition.
Legal framework continued…
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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)