TEAM -N

CENTER FOR HEALTH, HUMAN RIGHTS AND DEVELOPMENT

(CEHURD)

9TH ANNUAL NATIONAL INTER UNIVERSITY

MOOT COURT COMPETITION

IN THE HIGH COURT OF OYANDA

HOLDEN AT KWERU
MISCELLANEOUS CAUSE NO 1 OF 2022

IN THE MATTER BETWEEN;

PEN IS MYTIER INITIATIVE (PIMI) VERSUS

1.ATTORNEY GENERAL
2.KWERO HIGH SCHOOL

PLAINTIFF’S SUBMISSION IN REJOINDERS

 THE 9 TH NATIONAL INTER- UNIVERSITY CONSTITUTIONAL LAW

MOOT COURT COMPETITION

BEFORE THE HIGH COURT OF THE REPUBLIC OF OYANDA

HOLDEN AT KWERU

MISCELLANEOUS CAUSE NO 1 OF 2022

IN THE MATTER BETWEEN:

Pen Is Mightier Initiative PIMI ………………..……………………………………PLAINTIFF

VERSUS

ATTONERY GENERAL

……………………………………….DEFENDANTS

KWERO HIGH SCHOOL

TEAM-N

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 PLAINTIFF’S SUBMISSION IN REJOINDER

STATEMENT OF FACTS
Statement of Brief Facts

1.The Republic of Oyanda is a member of The African Charter on Human and Peoples Rights on
the Right of Women in Africa (MAPUTO PROTOCOL), World Health Organization, Global Declarations
and conventions

2. The Constitution of Oyanda supports Human Rights and established Supreme Court, Constitutional
court, High Court The age of consent, under Article 7 of the Constitution of Oyanda is 16.

3. The State, however, entered a reservation on Article 6(b) and 14(2)(c) of the Protocol to The
African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol).

4.The Republic of Oyanda has a population of 43.6 million and located in the Eastern part of the
African Continent and 46 percent live in abject poverty.

5. 40 per cent of the girls in the state of Oyanda were not receiving formal education and 33 per cent
of all teenage school-going girls dropped out of school within two years of having their first period
due to cultural practices

6.The State of Oyanda established an education scheme which aimed at ensuring that the State paid
the school dues for all teenage girls in all private and public schools though the minister for finance
confirmed that the government failed to fund the scheme. Pen Is Mightier Initiative (PIMI),

7. . Ariana Kamisha was 15 years old, attending Kwerro High School, a government-aided school, On
the night of 15th August 2021, a week before her 16th birthday, Ariana received from Baado , Robert
Keli, a teacher on duty took her to his office and had un protected sexual intercourse with her

8.). The school nurse, Ms. Christine Gwango, notified the headteacher, Mr. Jean-Pierre who chased
Aliana away on grounds that they don’t entertain pregnant women after Ariana discovering that she
was pregnant and did not do any investigation on the teacher.

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9.Ariana on her way home visited the local church, St Andrew’s Church, and found the local priest,
Rev. Fr Adriano Bungu who chased her away and went ahead and made preached against purity
saying that girls who get pregnant while in School shouldn’t be allowed to go back in school and his
sermon was broadcasted a National Broadcasting Television

. 10. Ariana and her friend Zara Akampu(amaid) went to Gweri Goodlife Clinic where they met Ms.
Edna Ziffu a nurse to whom they explained Ariana’s situation and expressed their desire to have an
abortion done. “Such a thing is unacceptable. It is against our culture and religious beliefs as the
people of Oyanda. Besides, that is a ‘no-go’ zone for us as health workers because the law will catch
us!” and chased them away.

11.Mindful of the urgency of the cause, Ariana drunk a mixture of liquid soap and chili which made
her to suffer stomach pain and severe vomiting and was rushed to Busi Health Center III for treatment
where nurses established that Ariana needed Post Abortion Care (PAC)however they were unable to
provide the needed care because they were ill-trained to handle teenage pregnancies, post-abortion
complications, and had no equipment at the hospital. They referred Ariana and her mother to the
bigger referral hospital, 40 kilometers away which was better equipped to handle such cases and died
on the way.

12.. Ariana’s mother and other parents removed their daughters in school scared that they would
suffer the same fate as Ariana,

ISSUES ARISING

1. The failure of the government to ensure that girls were protected from harmful and predatory
cultural and religious practices and beliefs, and archaic laws is a violation of human rights guaranteed
under the Constitution of Oyanda and applicable laws.

2. The failure of the government to pass and implement a School Health and Sexuality Education
Policy is a violation of various human rights guaranteed under the Constitution of Oyanda and
applicable law.

3. The failure of the government to provide essential training and equipment to the government
medical workers to enable them to handle issues arising out of teenage pregnancies was a violation of
girls’ rights guaranteed under the Constitution of Oyanda and applicable law.

4. The failure of Kwerro High School to ensure a protective environment for students to study free
from sexual exploitation was a violation of human rights guaranteed under the Constitution of
Oyanda and applicable law.

5. The failure of Kwerro High school to investigate and prosecute Robert Keli was a violation of
Ariana’s rights guaranteed under the Constitution of Oyanda.

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SUMMARY OF ARGUMENT SUMMARY OF ARGUMENTS

My Lord , We the plaintiff’s restate that the Republic of Oyanda by failing to ensure that girls were protected
from harmful and predatory cultural and religious practices , failure to pass and implement a School Health and
Sexuality Education Policy, training and equipment to the government medical workers to handle pregnant
issues and failure of Kwerro High school to investigate and prosecute Robert Keli was a violation of a right to
health ,life and sexuality education.

It should be noted that firstly the respondents have not denied or rebutted our application, bearing that in
mind ,I now turn to the respondents submissions

In regards to issue one ,the applicants concead that Article 33(6) of the Constitution of Oyanda was repealed1
however Article 287 of the Constitution of Oyanda2 recognizes and legitimatizes the
applicability of the treaties in Uganda and this was cited int the case of Uganda V Thomas
Kwoyelo, Constitutional Appeal no. 1 of 2012. 3 Uganda had ratified the MAPUTO
PROTOCOL majorly Article 5 of the MAPUTO PROTOCOL4 provides for elimination of harmful practices
which negatively affect the human rights of women which are centrally to recognized international standards it
goes ahead under Article 5(a) of the MAPUTO PROTOCOL 56provides for creation of public awareness in all
sectors of the society regarding harmful practices through information, formal and informal education as well
as outreach programs. Oyanda ratified the Convention on Economic, Social and cultural Rights
(CESCR) 7on elimination of all forms of discrimination against women (CEDAW), convention on
the 1·ighls of a child, African Charter on the Human and Peoples Rights on the rights of
women in Africa (Maputo Protocol) and the African Charter .That Article 287 of the
Constitution 8 enjoins the government honor treaties which meant that the government
had an obligation to guarantee and protect the rights spelt out in these treaties.

The respondents in their submission on page four of the respondents written submission paragraph
number two concede that the minister had a legal obligation to the state and thuds the state is liable
for the statements of the of its minister as they are in contravention of Article 5(a) of the MAPUTO
PROTOCOL9 which puts a duty on the state to create public awareness in all sectors of the society
regarding harmful practices through information, formal and informal education and thus the state of Oyanda
is liable for the actions of its minister Hon;Magandi.

1
Constitution of Oyanda
2
ibid
3
Constitutional Appeal no. 1 of 2012
4
Maputo protocol
5
ibid
6
ibid
7
CESCR
8
Constitution of Oyanda
9
Maputo protocol

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In regards to issue 2 it’s our submission that th e f ailu re of the gov e rnm ent to p a ss and im plem ent
a S chool He alth and S e x ualit y Edu cati on P ol ic y (S H S E) is a viol at ion of A r ticl e 33 (3 ) 10of th e
Con s titu tion of Oyanda This p rovi sion s tipul a tes th at t he stat e s hall prot e ct w ome n a nd thei r
ri ghts, t aki n g int o a cc ount t hei r uni qu e st atus and nat ur al m ate rn al fun ctions in soci et y
more so Article 12(1)e of the MAPUTO PROTOCOL 11 12which provides for integration of gender sensitization and
human rights education at all levels of education furthermore , the C ES CR Committee i n its Gen era l
Comment t N o. 13 explain ed that education is both a hum an right itsel f and an indispensable e means of
realizing got he r hum an rights. thus the defendants are liable for violation of such aright however much they
adduce baseless arguments that such type of education is already on their syllabus a fact that is not depicted
anywhere in our facts on paragraph one page five of the respondents’ submissions. We pray that this court
compels the state to implement a School Health and Sexuality y Education Policy y

In submission to issue number three, the respondents agree Co nsti tut ion do es not ex pre sl y gu a
rant e e th e ri ght to healt h, th er e is no doubt as to i ts ex iste nc e in the constitution of Oyanda
Article 45 13sin c e it can b e i nf er re d fr om th e Nati on al Ob je cti ves an d Di r ec tiv es of S t
at e Policy (NO DS P) 1415 and o the r su bs ta nti v e Consti tuti o nal p rovisi ons aim ed at pr ote

cti n g and p romoti n g t he ri ght t o h e alth i n O ya nd a. The ri ght t o he alth is pa rt of the la

r ger clu ste r of E c onomic S o cial a nd Cultur al ri ght s as was discussed in the decision in Centre
for Health, Human Rights and Development (CEHURD) a and Others Vs. Attorney General,
Constitutional Appeal no. 1 of 201316 where t h e Supreme C o u r t h e l d that the constitution
had provided rights to citizens to access medical care.

Further more failure to train medical workers on handling post abortion complications was a
violation of the patient's right to basic medical care as was discussed in the case of CEHURD &
Others v Nakaseke District Local Government &others, Civil Suit no. 111 of 201217
failure of the government to provide adequate training in handling post abortion complications was a violation
of a right to life thus its our submission that the government contravenes Article 45 of the constitution18
which states that the rights, duties, declarations and guarantees relating to the
fundamental and other human rights and freedoms specifically mentioned in chapter
IV of the constitution19 shall not be regarded as excluding others not specifically mentioned. He
further submitted that where the Government fails to provide Ugandans with a clean and

10
Constitution of Oyanda
11
Maputo protocol
12
ibid
13
Constitution of Oyanda
14
National objectives and directives of state policy
15
ibid
16
Constitutional Appeal no. 1 of 2013
17
Civil Suit no. 111 of 2012
18
Constitution of Oyanda
19
ibid

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h e a l t h y environment , a right guaranteed u n d e r Article 39 o f the Constitution20,
contravenes the right

20
ibid

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 .
In response to the realization principle it’s our submission that Uganda ratified international a n d r e g i o n a l
human rights treaties that guarantee and protect the right to health and argued that Article 287 of
the Constitution recognizes and legitimatizes the applicability of the treaties in Oyanda as was
discussed in the case of Uganda V Thomas Kwoyelo, Constitutional Appeal no. 1 of 201221. In the same
vain General Comment no 14 of the Committee on Economic, Social and Cultural Rights22, which
interprets the right to health as one that should be provided timely thus its our submission that the progressive
realization principle the defendants are in violation of aright to health .

Uganda ratified international and regional human rights treaties that guarantee and protect the right
to health and Article 287 of the Constitution recognizes and legitimatizes the applicability of the
treaties in Uganda as was discussed in the case of Uganda V Thomas Kwoyelo, Constitutional Appeal
no. 1 of 201223.Uganda ratified the Convention on Economic, Social and cultural Rights (CESCR) on
elimination of all forms of discrimination against women (CEDAW), convention on the 1·ighls of a child,
African Charter on the Human and Peoples Rights on the rights of women in Africa (Maputo
Protocol) and the African Charter .That Article 287 of the Constitution 24 enjoins the government to
honor treaties thus the government failed in fulfilling its obligation to guarantee and protect the rights
spelt out in these treaties.

On the right to Maternal Health, the Government failed to adequately provide basic maternal health
care services in public health facilities which was a violation of the right to life in contravention of article
22 of the Constitution 25It is our contention that fundamental rights including the right to health are
inherent and not granted by the state and should be upheld by all organs of state thus the right
placed responsibility on the state to provide not only access to health care services but also to
ensure that all organs and agencies of Government respect, p r o m o t e and u p h o l d them as was
discussed in the case of Asero Ochieng & 2 Others V. AG HCCC P e t i t i o n No. 409 / 2009
26
where court held that state had t h e responsibility to ensure that it does not do anything that would
in any way negatively affect access to health services which included sexual and reproductive health
services, access to family planning, pre• and post-natal care, emergency obstetric services and access
to information.

Thus its our submission that the Government of Oyanda failed to adequately provide basic maternal
health care services in public health facilities which amounted to a violation of the right to life in
contravention of Article 22 of the constitution27 as was discussed in the Supreme Court decision in AG
V. Susan Kigula & 417 others Const. Appeal No. 3 of 2006 28 where the court observed that the right
to life is the most fundamental of all rights and the state had a duty to protect it by law and thus should be
held accountable for the death of Ariana .
21
Constitutional Appeal no. 1 of 2012
22
SESCCR
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In regards to issue we concede that the fail ur e of K w er o Hi gh S cho ol t o ensu r e th at stu dent s stud y
fr om a pr o tecti ve en viro nme nt fr ee f rom s ex ual ex ploitati o n w as a vi olati o n o f A rti cl e 18 of
th e Map u t o P ro to col29 as the respondents have not disputed the same

We submit on issue fi ve that f ailu r e of Kw e ro High sch ool to in ves tiga t e an d p rose cu te Rob e r t
Kweli w as a viol ation of Arian a ’s r igh ts gu aran te ed u n d e r t h e Con s titu tion of Oyan d a . That
Article 287 of the Constitution30 enjoins the government to honor treaties thus the government and
Kwero High School’s failure in fulfilling their obligation to guarantee and protect the rights spelt out in
these treaties is a violation of such convesions a, further more Article 18 of the African Charter on Human
and Peoples' Rights31 calls on all States Parties to eliminate every discrimination against women and to
ensure the protection of the rights of women as stipulated in international declarations and conventions thus
Kwero High School violated the rights of Ariana;

PRAYERS

We pray for a declaration that the State violated the right to health and life contrary to Article

45, objective XX and Article 22 of the constitution of Uganda.

We pray that court makes a declaration that the State failed to ensure the provision of

rehabilitative services and access to information on sexual and reproductive health rights

contrary to Article 33 and 41 of the constitution of Uganda.

We pray for a declaration that the Government of Oyanda through the Ministry of Education

and Sports should develop a Comprehensive Sexuality Education Policy

We pray for a declaration that the Government of Oyanda through the Ministry of Education

and Sports should identify and work with a breadth of relevant stakeholders and address all

issues competently

A court order doth be issued against the 1 st defendant for;

23
Constitutional Appeal no. 1 of 2012

24
Constitution of Oyanda
25
ibid
26
HCCC P e t i t i o n No. 409 / 2009
27
Constitution of Oyanda
28
Const. Appeal No. 3 of 2006
29
MAPUTO PROTOCOL
30
Constitution of Oyanda
31
African Charter on Human and Peoples' Rights

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-General damages

-Compensation

Dated on

Signed by

………………………………………..

THE REGISTRAR OF HIGH COURT

DRAWN & FILED BY: -

PEN IS MIGHTIER IMITATIVE (PIMI) PLOT 2908,

3rd Floor, Suite M23, P.O BOX 8458,

KWERRO DISTRICT

10IPag
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