Maternal mortality and morbidity as a global problem

Maternal death is defined as the “death of a woman while pregnant or within 42 days of termination of pregnancy, irrespective of the duration and site of the pregnancy, from any cause related to or aggravated by the pregnancy or its management but not from accidental or incidental causes”.Footnote ³ Globally, approximately 295,000 maternal health care deaths occur each year, down from over 451,000 deaths per year in 2000.Footnote ⁴ The maternal mortality rate globally is approximately 223 per 100,000 live births, though these figures are significantly higher in developing countries, where a range of challenges make access to maternal health care limited.Footnote ⁵ Although substantial gains have occurred, the World Bank notes that during the period of the Millennium Development Goals, only nine countries between 2000 and 2015 reduced maternal mortality by 75 per cent or more.Footnote ⁶ Maternal mortality is an important indicator of maternal health overall in countries and provides a snapshot into broader questions of socio-economic development, respect for human rights and gender parity. Sub Saharan Africa, where women compose 52 per cent of the population, is the region of the world that suffers from the highest rates of maternal mortality, with a ratio of 545 deaths per 100,000 live births compared to 223 deaths per 100,000 live births globally.Footnote ⁷ Most countries in Sub Saharan Africa are unlikely to meet Goal 3.1 of the Sustainable Development Goals (SDGs), which envisages a reduction of maternal mortality ratio to 70 deaths per 100,000 live births by 2030.Footnote ⁸

There are a number of common challenges across the continent which limit significant advances in maternal health outcomes. One of the biggest challenges facing health care across Africa, and which negatively impacts maternal health outcomes, is the low levels of government spending. Current spending across governments in Sub Saharan Africa averages at 6 per cent of GDP, which amounts to USD 133 per capita across the region.Footnote ⁹ Comparatively, in Europe and Latin America, the average spending as a percentage of GDP is only about 8 per cent but this translates into per capita spending of almost USD 2,500Footnote ¹⁰ and USD 1,063, respectively.Footnote ¹¹ African governments had committed under the 2001 Abuja Declaration to increase spending to 15 per cent of annual budgets, however, according to the World Bank, no country in the region has met this target, leading to continually underfunded and inadequate health care systems across the continent.Footnote ¹² A report by the World Health Organization (WHO) for the Regional Committee of Africa notes, ironically, that “some member states cannot afford to absorb all HWs (health workers), leading to the paradox of HW unemployment amidst shortages to the health system”.Footnote ¹³

The limited investment in public health care by African governments has pushed individuals who can afford the costs into growing private sector health care, creating widening health / wealth disparities. In addition, including in public health systems, patients are often required to pay user fees, either through regulated payment or as the result of corrupt practices. Nearly 30 per cent of all of Africa's health care spending comes from out-of-pocket expenses, placing a substantial burden on poorer households which often have to enter into a so-called devil's choice – choosing between, for example, paying school costs for children, borrowing from friends and family or assuming health care costs or other health care shocks.Footnote ¹⁴ The costs associated with delivery are often high and impoverishing, even in public health care centres. In a study of maternal health care costs in Tanzania, Burkina Faso and Kenya, Perkins et al found that delivery costs constituted 6 per cent, 8 per cent and 17 per cent, respectively, of monthly income. They note that such costs “contribute to hardships” and were an “extreme burden” on households which they found had to sell crops and other assets to pay for delivery costs.Footnote ¹⁵

The high cost of quality maternal health care and limited availability, particularly in rural areas, pushes many women to give birth without a skilled birth attendant. Only about 63 per cent of women in Sub Saharan Africa give birth with the presence of a skilled birth attendant and fewer deliver at health care facilities.Footnote ¹⁶ In Tanzania, for example, 52 per cent of births are attended by a nurse, midwife or other skilled birth attendant while only 12 per cent are attended by doctors.Footnote ¹⁷

The minimal investment in health care across most African countries, combined with the inability of states to retain health care professionals, has resulted in another problem: extreme shortages of health care workers, amongst them gynaecologists and obstetricians, estimated to reach a 6.1 million health personnel shortage by 2030.Footnote ¹⁸ Africa has 1.3 doctors per 1,000 people, which is significantly below the 4.5 per 1,000 threshold necessary to achieve universal health coverage under the SDGs.Footnote ¹⁹

Additionally, significant disparities in maternal health care indicators between rural and urban populations demonstrate the stark disparity in access to maternal care between geographies, further exacerbating poor maternal health outcomes. In data which tracked rural-urban maternal health care access from 2013–18, UNICEF found that in rural areas, only 46 per cent of the population had at least four antenatal visits compared to 69 per cent in urban settings. Similarly, only 49 per cent of women delivered in a health care institution versus 78 per cent in urban areas.Footnote ²⁰ Hanson et al found that in Tanzania, like in most countries throughout Africa, “distance to the nearest hospital has also been found to be positively correlated with direct obstetric mortality”.Footnote ²¹ Poor maternal health outcomes depend on a number of factors as highlighted in this section that, often, together create inadequate and unsafe health care systems across much of Africa, denying vulnerable groups, such as the poor and women, quality access and care.

Factual background and Constitutional Petition No 16

Like other low-income countries, Uganda faces significant deficiencies in its provision of maternal health care. In Uganda, despite decreases in overall maternal mortality rates, deaths continue to be high and above global averages. According to the Ugandan Demographic Household Survey, maternal mortality fell slightly between 2006 and 2016. In 2006, there were 418 deaths per 100,000 live births, falling to 336 deaths per 100,000 live births in 2016, the year in which the maternal health deaths in question occurred.Footnote ²² This number increased to approximately 373 deaths per 100,000 in 2017Footnote ²³ but has since fallen substantially to 189 deaths per 100,000 live births, according to the 2022 Demographic Household Survey for Uganda.Footnote ²⁴ Other maternal health indicators have also undergone improvements. Since 2016, the percentage of women who gave birth in a health facility rose from 73 per cent to 91 per cent, and the number of women who gave birth with a skilled birth attendant present also rose from 74 per cent to 91 per cent.Footnote ²⁵ More pregnant women are also attending four antenatal care visits (from 60 per cent in 2016 to 72 per cent in 2022) and pregnancy deaths are down from 368 deaths per 100,000 live births in the period from 2009–16, to 228 in the period from 2015–22.Footnote ²⁶ Post partum haemorrhaging, an easily preventable death, continues to remain the leading cause of maternal death in Uganda (34 per cent of deaths), followed by death from hypertensive disorders (14 per cent), death by indirect causes such as malaria, HIV/AIDS, COVID-19 etc (12 per cent), deaths caused by pregnancy-related sepsis (9 per cent) and antepartum haemorrhage (7 per cent).Footnote ²⁷

It was in this context that the CEHURD case was instituted in court. The case concerned the deaths in 2016 of two women from rural areas, Sylivia Nalubowa and Anguko Jennifer, and their unborn children during labour. At Mityana Hospital, nurses asked Nalubowa's mother-in-law for money and supplies, but she did not have the amount requested.Footnote ²⁸ Nalubowa began haemorrhaging but a doctor on call never arrived. Both she and her baby died at the hospital.Footnote ²⁹ The second case involved Anguko, who went into labour in Arua Regional Referral Hospital at 11:00 am and started bleeding at 2:00 pm. Nurses left Anguko unattended and told her sister and husband to stop her bleeding with old pieces of cloth.Footnote ³⁰ The doctor was called at 7:30 pm but was delayed in arriving. Anguko and her baby died at the hospital.Footnote ³¹

The case was first instituted in 2011 at the Constitutional Court. At that time, an objection was brought by the office of the Attorney General challenging the jurisdiction of the court based on the political question doctrine. The counsel to the respondent had argued that the petitioner was asking the Constitutional Court to make a judicial decision over political questions.Footnote ³² The Constitutional Court upheld the objection by striking out the case. This decision of the court was challenged on appeal and the Supreme Court overturned the decision of the Constitutional Court by ordering that the court examine the petition on the merits.Footnote ³³ The Supreme Court had held that the Constitutional Court erred by refusing to hear the matter based on the doctrine of the political question. The political question doctrine is often a ploy raised to challenge the ability of the court to entertain socio-economic rights matters.

The matter was brought against the Ugandan government. The suit was premised on the government's failure to respect, protect and fulfil the right to health, life, the rights of women and the prohibition to be subjected to inhuman or degrading treatment. The appellants alleged that the failure of the Ugandan government to provide minimum health care services, which include non-provision of basic indispensable maternal care facilities, inadequate numbers of health care providers, inadequate allocation of resources, frequent stock outs of essential medicines and lack of EmOC services contributed to their deaths.Footnote ³⁴ The Government of Uganda argued that, while tragic, the state had met its obligations to progressively realize the right to maternal health under international law since the right to health was a socioeconomic right, therefore progressive in nature, hence the capacity of the state fully to protect and fulfil the obligation depended on the availability of resources.Footnote ³⁵ Nevertheless, this argument was not accepted by the Constitutional Court, finding the government in breach of international and domestic law.

Progressive realization as a principle towards the fulfilment of sexual and reproductive rights

Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) reflects a principal obligation of state parties to the covenant to take steps to achieve progressively the full realization of the rights recognized in the covenant, to the maximum of its available resources.Footnote ³⁶ This obligation is known as “progressive realization”.Footnote ³⁷ Progressive realization recognizes “that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time … since it reflects the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights”.Footnote ³⁸ However, General Comment No 3 of the Committee on ICESCR (CESCR) states that realization over time should not be “misinterpreted as depriving the obligation of all meaningful content”Footnote ³⁹ since it imposes the obligation on states to move as expeditiously and effectively as possible towards full realization and to justify any deliberately retrogressive measure.Footnote ⁴⁰

The CESCR has stated that, when “considering a communication concerning an alleged failure of a State Party to take steps to the maximum of available resources”,Footnote ⁴¹ it will assess whether the measures were “adequate” or “reasonable”.Footnote ⁴² The committee has indicated that, when assessing adequacy or reasonableness of measures it may consider, among other measures, “the extent to which the measures taken were deliberate, concrete and targeted towards the fulfilment of economic, social and cultural rights”,Footnote ⁴³ whether they are non-discriminatory and non-arbitrary, in accordance with international human rights standards, whether the option that least restricts ICESCR rights was taken, the time frame in which the steps were taken and whether “the steps had taken into account the precarious situation of disadvantaged and marginalized individuals or groups and, whether they were non-discriminatory, and whether they prioritized grave situations or situations of risk”.Footnote ⁴⁴

As part of progressive realization, states are required to take steps to the maximum of their available resources. However, “the question of what resources must be used in realizing socio-economic rights is one of the most difficult in the human rights field”.Footnote ⁴⁵ The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)Footnote ⁴⁶ requires that the obligation to use maximum available resources requires the allocation of sufficient economic resourcesFootnote ⁴⁷ and even if the state has wide discretion in determining its maximum available resources, it does not have open-ended discretion.Footnote ⁴⁸ A useful benchmark to evaluate a state's progress or a failure to comply with the right could be argued by comparing the country's relevant indicators with those of countries with similar resources.Footnote ⁴⁹

Progressive realization has its limits in the minimum core doctrine. The CESCR has indicated in General Comment No 3 that “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party”.Footnote ⁵⁰ Minimum core obligations are a subset of obligations “that must be immediately complied with in full by all states … to which the doctrine of ‘progressive realization’ is inapplicable”Footnote ⁵¹ and cannot be subject to limitations.Footnote ⁵² Any assessment as to whether a state has discharged its minimum core obligations will have to “take account of resource constraints applying within the country concerned”Footnote ⁵³ and the state party “must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations”.Footnote ⁵⁴ However, “multiple obligations relating to sexual and reproductive health rights are not subject to resource availability”,Footnote ⁵⁵ such as, inter alia, the establishment of a national plan of action or the elimination of harmful practices and discrimination.Footnote ⁵⁶

In relation to maternal health, and more specifically to EmOC, several obligations have been recognized by human rights monitoring mechanisms and UN agencies as being part of the minimum core.Footnote ⁵⁷ The following section will provide an analysis of immediate obligations relevant to Constitutional Petition No 16, when the lives of women are threatened by the lack of basic maternal health services.

Minimum core obligations in emergency obstetric care

Article 12(2) of the CEDAW obliges states to “ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary”.Footnote ⁵⁸ The wording “shall ensure” in article 12(2) of the CEDAW means that the obligation to ensure women's right to safe motherhood and emergency obstetric services is immediateFootnote ⁵⁹ and that states “should allocate to these services the maximum extent of available resources”.Footnote ⁶⁰ Also, article 14(2)(b) of the Protocol to the African Charter on Human and Peoples Rights of Women in Africa (Maputo Protocol)Footnote ⁶¹ requires state parties to take all appropriate measures to “establish and strengthen existing pre-natal, delivery and post-natal health and nutritional services for women during pregnancy and while they are breast-feeding”.

The minimum core of economic, social and cultural rights and, specifically, the right to health and sexual and reproductive rights, has been developed by international human rights treaty bodies through their general comments. General Comment No 3 of the CESCR asserted that state parties to the ICESCR had to ensure, at the very least, minimum essential levels of each of the rights, whereby, if the individual were to be denied, the state would be failing to discharge its obligations under the covenant.Footnote ⁶² In relation to health, the CESCR referred to “essential primary health care”,Footnote ⁶³ without specifying what constituted essential primary health care. A few years later the committee adopted General Comment No 14 and refined the concept of essential primary health care. When specifying the minimum core, it referred to the Programme of Action of the International Conference on Population and Development and the Alma-Ata Declaration as instruments reflecting an international consensus on the core obligations arising under article 12.Footnote ⁶⁴ As part of the minimum core, General Comment No 14 recognized the obligation “[t]o ensure reproductive, maternal (prenatal as well as post-natal) and child health care”.Footnote ⁶⁵ More recently the CESCR adopted General Comment No 22 on the right to sexual and reproductive healthFootnote ⁶⁶ and acknowledged as guidance for the purposes of specifying the minimum core “contemporary human rights instruments and jurisprudence, as well as the most current international guidelines and protocols established by United Nations agencies, in particular WHO and the United Nations Population Fund (UNFPA)”.Footnote ⁶⁷ The comment included as core obligations specific to obstetric services “[t]o guarantee universal and equitable access to affordable, acceptable and quality sexual and reproductive health services, goods and facilities, in particular for women and disadvantaged and marginalized groups”Footnote ⁶⁸ in addition to other core obligations of sexual and reproductive rights.

International treaties and general comments recognize a core obligation of states to guarantee reproductive health services. These instruments use the terms “appropriate”, “adequate” and “affordable, acceptable and quality” services, specifically when applied to EmOC. Notwithstanding, these instruments, even if vague as to the scope of the obligations, refer to additional instruments such as the International Conference on Population and Development (ICPD) Programme of Action, WHO and UNFPA guidelines and international human rights law jurisprudence, as guidance. As such, the ICPD Programme of Action includes that “safe delivery … should be ensured” under the minimum core of women's right to health care.Footnote ⁶⁹ As part of safe delivery the Programme of Action requires the “adequate delivery assistance that … provides for obstetric emergencies”,Footnote ⁷⁰ “referral services for pregnancy, childbirth and abortion complications”Footnote ⁷¹ and that all births are “assisted by trained persons, preferably nurses and midwives, but at least by trained birth attendants”.Footnote ⁷² The WHO, UNPFA and UNICEF have developed standards for monitoring the availability and use of obstetric services.Footnote ⁷³ These guidelines identify interventions which, if implemented by states, have been found to reduce maternal mortality.Footnote ⁷⁴ According to Yamin and Maine, these guidelines “establish the core content of standards for emergency obstetric care that can guide priorities in state parties’ healthcare expenditures”Footnote ⁷⁵ and:

Life-threatening obstetric complications are the same around the world (haemorrhage, sepsis and hypertensive disorders, such as eclampsia).Footnote ⁷⁷ Most of these complications can be successfully treatedFootnote ⁷⁸ and treatment is not complicated.Footnote ⁷⁹ However, the chances of women's survival depend on the “different legal and regulatory contexts and standards of medical care”.Footnote ⁸⁰ The UNICEF, WHO and UNFPA Guidelines identify two levels of essential obstetric care that should be available: basic and comprehensive.Footnote ⁸¹ According to the guidelines, a basic fully functioning EmOC facility is required to perform seven signal functions: administer parenteral antibiotics, uterotonic drugs (ie parenteral oxytocin), parenteral anticonvulsants for pre-eclampsia and eclampsia (ie magnesium sulfate), manually remove the placenta and retained products, perform assisted vaginal delivery and basic neonatal resuscitation.Footnote ⁸² A comprehensive fully functioning EmOC facility performs the basic functions as well as obstetric surgery (caesarean) and blood transfusion.Footnote ⁸³ Many complications that are life-threatening can be treated at a basic EmOC facility, however, a woman experiencing complications can be given enough treatment at a basic EmOC facility so that she can reach a comprehensive EmOC facility.Footnote ⁸⁴ According to the 2009 guidelines, the minimum acceptable number of basic and comprehensive EmOC facilities for a country or region are “five EmOC facilities, at least one of which provides comprehensive care” for every 500,000 population.Footnote ⁸⁵ However, the guidelines alert that, even if a state meets the minimum ratio, “fully functioning basic facilities, however, are much less common”.Footnote ⁸⁶

The guidelines additionally include as indicators the estimate of the proportion of women with major direct obstetric complicationsFootnote ⁸⁷ who are treated in a health facility providing EmOC, either basic or comprehensive.Footnote ⁸⁸ Calculating met need highlights “the extent to which pregnant women are using the health system”,Footnote ⁸⁹ which ones are, and which ones are not, and the reasons why have “important implications for public health and human rights”.Footnote ⁹⁰ It is estimated that the total need for EmOC is 15 per cent of all birthsFootnote ⁹¹ and the guidelines recommend that the minimum acceptable level should be set at 100 per cent, since all women who have obstetric complications should receive EmOC.Footnote ⁹² In relation to comprehensive EmOC, the guidelines include whether the facilities in the country provide enough life-saving surgery as an essential standard. The 2009 guidelines alert that “both very low and very high rates of caesarean section can be dangerous”Footnote ⁹³ and recommend states to keep the percentages recommended as minimum and maximum in the 1997 guidelines using a range of “5–15 %”,Footnote ⁹⁴ 5 per cent being the minimum and 15 per cent being the maximum that should not be exceeded, due to its possible overuse.Footnote ⁹⁵ To assess whether the quality of these services is adequate, the guidelines recommend taking into consideration threes indicators: the direct obstetric case fatality rate, intrapartum and very early neonatal death rate, and the proportion of deaths due to indirect causes in EmOC facilities. In relation to the first, the standard measures are “the proportion of women admitted to an EmOC facility with major direct obstetric complications or who develop such complications after admission and die before discharge”.Footnote ⁹⁶ According to the 1997 guidelines, “the maximum acceptable level of ‘case fatality rate’ is set at 1%”,Footnote ⁹⁷ the 2009 guidelines set it at less than 1 per cent.Footnote ⁹⁸ If given proper care, more than 99 per cent of women admitted for obstetric complications should survive.Footnote ⁹⁹ In relation to the second, the intrapartum and very early neonatal death rate indicator measures the “proportion of births that result in a very early neonatal death or an intrapartum death (fresh stillbirth) in an EmOC facility”.Footnote ¹⁰⁰ This indicator was introduced to shed light on the quality of intrapartum care for foetuses and newborns delivered at facilities,Footnote ¹⁰¹ however the guidelines do not set a standard of a maximum acceptable level.Footnote ¹⁰² Lastly, the 2009 guidelines include a new indicator which measures the proportion of deaths due to indirect causes in EmOC facilities.Footnote ¹⁰³ Indirect causes result from “previous existing disease or diseases that developed during pregnancy and which was not due to direct obstetric causes, but which was aggravated by the physiologic effects of pregnancy”.Footnote ¹⁰⁴ This new indicator does not have a recommended or ideal level, instead “it highlights the larger social and medical context of a country or a region”.Footnote ¹⁰⁵

The CESCR General Comment No 22 recognizes as a minimum core obligation the provision of essential medicine, equipment and technologies which are essential to sexual and reproductive health. In relation to medicine, the CESCR refers to medicine included in WHO Model List of Essential Medicines.Footnote ¹⁰⁶ The list includes medicines which are important for preventing the leading causes of maternal morbidity and mortalityFootnote ¹⁰⁷ and are also essential to a basic fully functioning EmOC facility as mentioned earlier. To manage postpartum haemorrhage, pre-eclampsia and eclampsia, the WHO lists several drugs considered as essential which are “relatively cheap, easy to administer and [are] often available in healthcare settings”.Footnote ¹⁰⁸ Cook also argues that a fundamental aspect of this obligation is that access to medicine, equipment and technologies is guaranteed by the state, and supply chains facilitated as well, “particularly in rural and underserved areas and assist the ability of health workers to administer uteronic drugs”.Footnote ¹⁰⁹ States have also been held responsible for failing to provide appropriate EmOC due to professional negligence, inadequate infrastructure, worker absenteeism and lack of professional preparedness. In Alyne da Silva Pimentel v Brazil Footnote ¹¹⁰ the CEDAW Committee held the state responsible for “professional negligence, inadequate infrastructure and lack of professional preparedness”.Footnote ¹¹¹ According to the WHO, the minimum recommended ratio of health workers of “2.3 skilled health workers (physicians and nurses/midwives) per 1,000 population was generally necessary to attain high coverage”.Footnote ¹¹² However in 2016 the WHO designed a new indicator extending it to a broader range of health services that the SDG agenda requires, recommending the threshold of 4.45 skilled health workers (physicians and nurses/midwives) per 1,000 population.Footnote ¹¹³ According however to the Ending Preventable Maternal Deaths initiative, the threshold should be set at 5.9 skilled health professionals (midwives, nurses and physicians) per 1,000 population which has been identified as the workforce requirement to reduce global maternal deaths to 50 per 100,000 live births by 2035.Footnote ¹¹⁴

In relation to the second obligation in article 12(2) of the CEDAW, services should be granted for free when necessary. However, the same as for appropriate, which has been progressively defined by UN monitoring mechanisms and agencies, the scope of the obligation defined by the wording “when necessary” is unclear. In Alyne de Silva Pimentel v Brazil, as Tobin argues, even if the CEDAW Committee did “not expressly consider the meaning of the phrase ‘where necessary’, its views tend to suggest that this threshold will be satisfied where the relevant maternal health services are reasonably necessary to prevent any genuine and real threat to the life of a mother”Footnote ¹¹⁵ or any other right which is essential in nature.Footnote ¹¹⁶

Another important immediate and minimum core obligation is the right to access services on a non-discriminatory basis. The CESCR and the CEDAW Committee recognize the right to ensure universal and equitable distribution of all health facilities, goods and services,Footnote ¹¹⁷ in particular for women and disadvantaged and marginalized groups.Footnote ¹¹⁸ The Maputo Protocol also requires state parties to take all appropriate measures to “provide adequate, affordable and accessible health services, including information, education and communication programmes to women especially those in rural areas”.Footnote ¹¹⁹ To eliminate discrimination against women, states should repeal or eliminate laws, policies and practices that criminalize, obstruct or undermine access by individuals or a particular group to sexual and reproductive health facilities, services, goods and informationFootnote ¹²⁰ as well as the removal of barriers to women even if “seemingly gender-neutral”.Footnote ¹²¹ The CEDAW has addressed specifically the need to ensure effective access on a non-discriminatory basis in relation to rural women, those who are most affected by the unequal distribution of health facilities and resources “owing to … insufficient budget allocations to rural health services, the lack of infrastructure and trained personnel, the lack of information on modern methods of contraception, remoteness and the lack of transport”.Footnote ¹²² In Alyne da Silva Pimentel v Brazil Footnote ¹²³ the CEDAW Committee held the government accountable for a preventable maternal death due to the failure to implement a woman's right to “appropriate services in connection with pregnancy confinement and the post-natal period” and also to take all appropriate measures to eliminate discrimination in the field of health care on account of Alyne's sex and socioeconomic status, but also as a woman of African descent.Footnote ¹²⁴ The UNICEF, WHO and UNFPA Guidelines consider as an essential standard to monitor states compliance with EmOC, the geographical distribution and accessibility of facilities.Footnote ¹²⁵ Maternal health complications require urgent attention, therefore EmOC facilities should be distributed geographically, so that women in rural areas can reach them.Footnote ¹²⁶ To ensure equity and access, the guidelines recommend that subnational areas should have at least five facilities (including at least one comprehensive facility) per 500,000 populationFootnote ¹²⁷ except in areas where the population is dispersed and travel is difficult, “it may be advisable for governments to exceed the minimum acceptable level”.Footnote ¹²⁸

General Comment No 22 of the CESCR recognizes another minimum core obligation which is “to enact and enforce the legal prohibition of harmful practices and gender-based violence”.Footnote ¹²⁹ Both the CEDAW Committee and the Committee on the Rights of the Child have highlighted that harmful practices and gender-based violence put the health and lives of girls and women at risk.Footnote ¹³⁰ States should ensure “privacy, confidentiality and free, informed and responsible decision-making, without coercion, discrimination or fear of violence”.Footnote ¹³¹ These rights are instrumental to guaranteeing women's autonomy, which lies at the centre of the fundamental rights to liberty, dignity and equality.Footnote ¹³²

Lastly, as part of the immediate core of health and sexual and reproductive rights, human rights monitoring bodies require that states adopt legislationFootnote ¹³³ eliminating laws, policies and harmful practices that present direct and indirect barriers to the use of services by women.Footnote ¹³⁴ As part of this obligation, states must elaborate a plan of action or strategy and this plan must be implemented.Footnote ¹³⁵ The national plan “must contain a sexual and reproductive health strategy, encompassing maternal health”Footnote ¹³⁶ which is devised, periodically reviewed and monitored through a participatory and transparent process.Footnote ¹³⁷ The national health strategy should identify duty-bearers, assess institutional capacities and identify the resources available, in public and private sectors,Footnote ¹³⁸ giving particular attention to all vulnerable or marginalized groups.Footnote ¹³⁹ The plan must include adequate budget allocation disaggregated by prohibited ground of discriminationFootnote ¹⁴⁰ and, specifically, a situational analysis of women's sexual and reproductive health rights,Footnote ¹⁴¹ corresponding right to health indicators and benchmarks.Footnote ¹⁴² The plan must ensure essential interventionsFootnote ¹⁴³ and essential medicines for improving maternal health,Footnote ¹⁴⁴ capacity strengthening measures for the health workforce, number and distribution,Footnote ¹⁴⁵ special measures in cases of discrimination in access to sexual and reproductive health servicesFootnote ¹⁴⁶ and additional actions, necessary to enable women to enjoy their sexual and reproductive health.Footnote ¹⁴⁷ The national plan must be assessed for its impact on the maternal health of different population groups and income quintiles.Footnote ¹⁴⁸

The CEDAW Committee has called on states to “allocate adequate budgetary, human and administrative resources to ensure that women's health receives a share of the overall health budget comparable with that for men's health, taking into account their different health needs”.Footnote ¹⁴⁹ Transformative equality requires “reallocation or reorientation of health care resources, including budgets and health personnel, to achieve universal coverage for women on a basis of equality with men”Footnote ¹⁵⁰ and as part of this reallocation, state parties should “reasonably accommodate the different health situations of men and women”.Footnote ¹⁵¹ For states to be able to devote the maximum available resources to sexual and reproductive health they must ensure “the establishment and sustainability of an adequate fiscal envelope”.Footnote ¹⁵² If structural imbalances exist, “strengthened and rationalized revenue collection should be undertaken before cuts are made”,Footnote ¹⁵³ and if cuts are made, the government will have to demonstrate that it has taken all reasonable measures to avoid such reductions.Footnote ¹⁵⁴ Budgets should ensure that access to the health system and sexual and reproductive rights are not limited by out-of-pocket costs.Footnote ¹⁵⁵ In the same way as for the national plan, during budget formulation, participatory processes should be established.Footnote ¹⁵⁶ Sexual and reproductive health spending should be identifiable and accessible, disaggregated by functional and programmatic classifications.Footnote ¹⁵⁷ Sexual and reproductive spending “should not be reassigned, diverted or underspent during the fiscal year”.Footnote ¹⁵⁸

Determining Uganda's compliance with immediate and minimum core obligations in emergency obstetric care

In Constitutional Petition No 16, the judgment determined whether the omission to adequately provide basic maternal health care services and EmOC in public health facilities violated the right to health, the right to life, women's rights and inhuman or degrading treatment.Footnote ¹⁵⁹ In determining these issues the judgment addressed whether the State of Uganda complied with immediate and minimum core obligations in the provision of EmOC and concluded that the state, by not complying with these obligations, violated women's rights to health, life, non-discrimination and to not be subjected to inhuman or degrading treatment.

In determining whether the state had complied with the obligation to move as expeditiously and effectively towards full realization,Footnote ¹⁶⁰ the Constitutional Court argued in favour of the petitioners that “unimplemented policies and strategies in Uganda … cannot be said to be expeditious and effective steps towards realization of the right to health”.Footnote ¹⁶¹ According to the court, the measures adopted by the government could not be considered adequate, nor reasonable. It acknowledged that the government had put in place policies and programmes to improve maternal health leading to a decrease in maternal mortality, from 537 to 435 deaths per 100,000 lives in 11 years (1995–2006), that the use of contraceptives had increased from 5 per cent to 23 per cent and that adolescent pregnancy has also decreased from 43 per cent to 25 per cent (1995–2006).Footnote ¹⁶² However, the court sided with the petitioners that even if measures and policies had been adopted, the implementation of these policies remained a challenge.Footnote ¹⁶³ First, because the decline of the maternal mortality rate was “still not good enough, taking into account the resources available to the government”.Footnote ¹⁶⁴ Second, because the time frame in which the steps were taken was not satisfactory, since it was now more than ten years since the policies had been adopted and did not “lead to any meaningful reductions in the leading causes of maternal deaths”Footnote ¹⁶⁵ and, finally, the court highlighted that the leading causes of maternal deaths in 2007 remained the leading causes in 2016.Footnote ¹⁶⁶ Policies had not been implemented, extended and evaluated,Footnote ¹⁶⁷ therefore the court established that the state had not complied with the immediate obligation to move expeditiously and effectively towards the fulfilment of the right.

The judgment recognized the obligation to ensure adequate or appropriate services during childbirth to enable the reduction of maternal mortality rate as part of the minimum core that parties to the ICESCR and the African Charter on Human and Peoples’ RightsFootnote ¹⁶⁸ must fulfil.Footnote ¹⁶⁹ The petitioners argued that “[t]he sad reality is that the nearest facility to give EmOC for women is an HC III facility, which provides maternal health services, but only 14% of these HC III have the facilities to provide EmOC and only 8.1 % of facilities in Uganda can provide comprehensive EMOC which are life-saving procedures, which should be available at the 1^st referral facility”.Footnote ¹⁷⁰ They claimed that basic EmOC, which is a lifesaving procedure (parenteral sedatives, manual removal of placenta, removal of retained products, assisted vaginal delivery), is predominately missing.Footnote ¹⁷¹ The petitioners also contended that the capacity to provide life-saving surgery was below the minimum standards, indicating that “minimum caesarean section is at 2.7% as opposed to the minimum required 5% which means many women who need a C-section do not get one”.Footnote ¹⁷² In relation to the direct obstetric case fatality rate, the petitioners explained this rose in Uganda to 5,840 women dying in child birth every year, translating to 16 women dying daily.Footnote ¹⁷³ According to the Uganda Demographic Health Survey in 2016, 336 women die for every 100,000 live births due to maternal related complications most of which are preventable,Footnote ¹⁷⁴ the pregnancy-related mortality ratio is at 368 deaths per 100,000 live birthsFootnote ¹⁷⁵ and some health facilities have maternal mortality ratios up to 2,578 maternal deaths per 100,0000 live births.Footnote ¹⁷⁶ The judgment did not refute these arguments.

The petitioners also addressed whether Uganda had complied with the immediate core obligation of providing essential medicine, equipment and technologies. They indicated that hospitals and clinics were lacking many essential medical items: they mentioned the lack of stock of Mama Kits (an all-in-one kit that contains everything needed to help provide a clean and safe delivery) at over 60 per cent of clinics, hospitals and stores and the lack of basic maternal health commodities such as blood for transfusionFootnote ¹⁷⁷ and the lack of essential drugs for maternal health care in 67 per cent of regional hospitals,Footnote ¹⁷⁸ where in 2016, 25 per cent of country-level healthcare facilities were stocked out of misoprostol, 14 per cent were stocked out of oxytocin and 29 per cent were stocked out of nifedipine-essential medications.Footnote ¹⁷⁹ The petitioners also referenced the inadequate infrastructure of the health care sector, referring to the Health Sector Development Plan for 2015 which “showed that only 33% of the medical equipment in Uganda general hospitals was functional while 63% required repair or replacement”.Footnote ¹⁸⁰ Also, according to the petitioners, staffing across most levels of the health care system fell short of the required staffing norms and standards. These numbers were more critical “at parish level where the most vulnerable portion of the population lives and are caused mainly by inadequate and unpredictable wages”.Footnote ¹⁸¹ Reasons behind high maternal death were due to inadequate trained staff, absence of doctors and lead clinicians to make decisions and interventions.Footnote ¹⁸² The petitioners also put forth the fact that the “ratio of doctors, nurses and midwives is at 0.4 per 1,000, significantly below the WHO recommended ratio of 2.5 per 1,000”,Footnote ¹⁸³ also caused by worker absenteeism. The judgment did not disagree with the standards and facts.

When considering if the services were necessary, in both cases the services Nalubowa and Anguko required were necessary to prevent a genuine and real threat to their lives. Nalubowa died from obstructed labour and could not get a caesarean section and Anguko died from absence of blood.Footnote ¹⁸⁴ The Constitutional Court held that “the right to health, life and human dignity are inextricably bound … without the right to health, the right to life is in jeopardy”Footnote ¹⁸⁵ and that “the right to health and other human rights are inseparably linked”.Footnote ¹⁸⁶ The court also referred to other precedents in international law where states were found responsible for violating the right to life by denying appropriate maternal health services or failing to provide a minimum standard of maternal health care to women who died in childbirth.Footnote ¹⁸⁷

The Constitutional Court also found that the government had not complied with the immediate obligation to ensure the right of access to health facilities, goods and services on a non-discriminatory basis. In both Nalubowa's and Anguko's cases, the women started haemorrhaging. In Nalubowa's case, the family did not have the money or resources to pay the nurses, and in both instances they were left unattended as their conditions deteriorated due to a lack of resources and because the doctor never arrived. The court recognized that the ICESCR and the African Charter on Human and Peoples’ Rights provide for progressive realization and acknowledged the constraints due to a limitation of available resources. However, it stated that the ICESCR also “imposed on state parties various obligations of immediate effect. One such obligation which may not require resources is the guarantee that the right will be exercised without discrimination of any kind”Footnote ¹⁸⁸ and that “[i]t is the responsibility of government to ensure that the services are physically accessible to women across the country especially in rural areas”.Footnote ¹⁸⁹ The judgment acknowledged that the continuing prevalence of maternal deaths indicated discrimination by the state of poorer women and of women in general due to the shortages and shortcomings in the delivery of maternal health care services caused by stockouts of maternal health care packages, drugs, professional negligence and limited budgetary provisions to the health sector.Footnote ¹⁹⁰

In addition, the judgment also considered whether immediate obligations include the prohibition of harmful practices and gender-based violence. The petitioners argued that the omission by the government to adequately provide EmOC in public health facilities had resulted in obstetric injury which subjected women to inhuman and degrading treatment.Footnote ¹⁹¹ The Constitutional Court defined medical care which causes severe suffering for no justifiable reason as cruel, inhuman and degrading treatmentFootnote ¹⁹² and ultimately concluded that “[t]he actions caused utmost pain, degrading and cruel treatment of the deceased for the period they spent in the hospitals … This also caused suffering and loss to their families”.Footnote ¹⁹³

To conclude, the arguments provided by the petitioners were challenged by the respondents by resorting to the lack of resources defence. However, the Constitutional Court found it unacceptable for the following reasons.

Uganda's lack of resources defence to compliance with immediate and minimum core in the provision of EmOC

Setting priorities among health problems, for the allocation of resources, is not an easy task.Footnote ¹⁹⁴ In relation to sexual and reproductive rights, resource flows are very difficult to assess.Footnote ¹⁹⁵ Expenditures are difficult to determine since countries do not budget according to the same categories, and high spending on for example AIDS has dwarfed other spending on sexual and reproductive health.Footnote ¹⁹⁶ The Guttmacher-Lancet Commission in 2019 estimated the costs needed for, impact of and cost of fully investing in sexual and reproductive health care,Footnote ¹⁹⁷ however, even if low-income countries have committed to increased sexual and reproductive rights investment, progress is slow “not only due to limited resources but also weak political will, persistent gender-based discrimination, and an unwillingness to address issues related to sexuality openly and comprehensively”.Footnote ¹⁹⁸

The Ugandan government based its non-compliance with the minimum core on its lack of resources, which caused corruption and absence of trained doctors and nurses. In international law however, lack of resources, as the judgment stated, “should not be used as a blanket excuse and defense for failure to provide basic services to save life”.Footnote ¹⁹⁹ The state has the burden to demonstrate that every effort had been made to use all resources at its disposition to satisfy, as a matter of priority, those minimum obligations.Footnote ²⁰⁰ The Constitutional Court recognized that “the full realization of the right to health is difficult to attain because of structural and other obstacles resulting from factors beyond the control of states”Footnote ²⁰¹ and stated that Uganda was no exception.Footnote ²⁰² However, it found unacceptable that, in the case of Uganda, with vast natural resources, a lack of resources could not be an excuse. The court highlighted that the government had the responsibility to harness the resources and institute an effective and fair taxation system and a budgeting process to meet constitutional demandsFootnote ²⁰³ and that this obligation needed to ensure that economic, social and cultural rights are prioritized in the distribution of resources.Footnote ²⁰⁴ Also, the judgment took into consideration the argument, provided by the petitioners, that Uganda had the capacity to reduce significantly maternal mortality by identifying and implementing strategies that reduce preventable deaths, even in the absence of significant funding. An important argument against the lack of resources defence was based on examples, cited by the petitioners, “from other low-income countries in Eastern Africa that have managed to significantly reduce maternal mortality with almost the same budget to the health sector”.Footnote ²⁰⁵

On the issue of priority setting in relation to investing in maternal heath, the government argued that “it had an obligation to fund other areas of the health sector, and various other budget sectors that equally affect other human rights”Footnote ²⁰⁶ and even if constrained by competing interests and priorities and limited resources available, it had consistently increased budget allocation to health, set maternal health as a priority and had increased its resource allocation, including measures to reduce maternal mortality.Footnote ²⁰⁷ However the petitioners argued that the increases in budget allocation cited by the respondent were neither consistent nor significant, since the government's expenditure on health care had fluctuated between 5.3 per cent and 7.3 per cent since 2015.Footnote ²⁰⁸ In relation to investing in maternal health “amounts allocated to the health sector did not indicate and did not reflect the amounts released and spent. That out of the 6.3% allocated to the health sector in the Fiscal Year 2015/2016 only 93% was actually spent”.Footnote ²⁰⁹ The claimants contended that this was not even half of what the Abuja Declaration required, and the judgment raised concern about the unspent 7 per cent “that could significantly contribute to improvement in maternal care”.Footnote ²¹⁰ Specific to sexual and reproductive rights, the judgment indicated that the WHO recommends that low-income countries spend at least 3 per cent of their GDP on health-related expenditure of which at least 25–30 per cent on sexual reproductive, maternal, newborn, child and adolescent health.Footnote ²¹¹ The Uganda's Health Sector Development Plan published in 2015 reported that only 1.3 per cent of the country's GDP was spent on health in the financial year 2011–12.Footnote ²¹² Therefore, the government was not able to demonstrate that every effort had been made to use all resources at its disposition to satisfy, as a matter of priority, the minimum core obligations.

The government also argued, as a defence, that corruption was rampant, and even if key areas and services had improved, this factor contributed to the poor outcomes in maternal health indicators. The Constitutional Court observed that this quiet corruption led to “delays in care, high rates of emergency surgery, unnecessary referrals and a multitude of other negative health outcomes”.Footnote ²¹³ It noted that, while the Health Ministry recognized absenteeism in its 2015 Health Sector Development Plan, “the goals were limited and lacked enforcement mechanisms to enable significant improvement in absenteeism or to any meaningful performance accountability in the sector”.Footnote ²¹⁴ The government admitted shortage of medical staff and inadequate trainingFootnote ²¹⁵ and also provided numbers of health workers graduating annually.Footnote ²¹⁶ The Constitutional Court recognized that “it may be true that the number of highly specialized lead obstetricians is limited, it is also true that many go out the country in search of greener pastures, while some of those who remain in the country join the private sector which offers better remuneration as opposed to the Ministry”.Footnote ²¹⁷ The court stated that “[t]o be able to provide proper obstetric services the Government must have enough skilled attendants covering 24 hours a day, seven days a week with support staff assisting them. There ought to be functional operating theatres with competent staff able to administer safe blood transfusions and anesthesia”.Footnote ²¹⁸ Since these facts were not challenged or explained by the respondent, the court took them all as truthful.Footnote ²¹⁹