NKUMBA UNIVERSITY

SCHOOL OF LAW

COURSE : BACHELOR OF LAWS (LLB)

YEAR : 4TH, SEMSTER II

INDEX NO : 2019/AUG/LLB/B225949/DAY

COURSE UNIT : HEALTH LAW AND POLICY

LECTURER : COUNSEL BASHIR KABAKUBYA

Question

There is no standard definition for health. Different modules and concepts have been
proposed in an attempt to define it. With the help of clear illustrations critically discuss
the statement.
 According to the world health organization ‘health’ is a state of complete physical, mental and
social well-being and not merely the absence of disease and infirmity. 1 Article 1 of the Universal
Declaration of Human Rights provides that ‘all human beings are born free and equal in dignity
and rights;’ and Article 25(1) provides that ‘Everyone has the right to a standard of living adequate
for the health of himself and of his family, including food, clothing, housing and medical care and
the necessary social services.’ It follows, therefore, that every human person is entitled to be treated
with dignity. Consequently,2

African Charter on People’s Rights provides that, “Every individual has the right to enjoy
the highest attainable state of physical and mental health.” Article 16 (2) obliges state parties to the
African Charter to take “the necessary measures to protect the health of their people and to ensure that
they receive medical treatment when they are sick”. Article 18 requires the State to protect the physical
health of families and to protect the rights of women and children as per international declarations
and conventions. The foregoing internationally provisions are inextricably linked, interdependent and
indivisible. Closer to home, some instruments were specifically created to be applied in East African
countries and also include provisions that are relevant to the protection of the right to health in
Uganda. For example, Article 117 of the Treaty for the Establishment of the East
African Community (EAC) obliges the partner states to co-operate in various matters
including health. Article 118 enjoins the partner states to promote the management of health
delivery systems to enhance the efficiency of their health care systems. The Treaty further charges the
partner states to promote the harmonization of national health policies and regulations, and
cooperation in the development of specialized health training, study and reproductive health.

Therefore the right to health in Uganda’s Constitution is expressly provided, the constitution under
Article 45 provides a number of human rights and freedoms, which are critical for the protection of
the right to health, given the interdependence and interrelationship of human rights. 3 These rights
include equality and freedom from discrimination, the right to life Article 22, respect for human
dignity and prevention from torture or cruel, inhuman or degrading treatment or punishment. The
right to health is however included among the national objectives and directive principles of state
policy, which since the introduction of Article 8A of the constitution provides that ‘Uganda shall be
governed based on the principles of national interest and common good enshrined in the national
objectives and directive principle of state policy.’ Article 39 of the Constitution 4provides for the
right to a clean and healthy environment, a precondition to the enjoyment of health. This ride can be
maintained through proper hygiene and waste management. For instance, pregnant woman should
have the right to deliver and raise their children in a clean and healthy environment with access to
clean water and air. An effort to enforce this right in relation to health was exemplified in The
Environmental Action Network v British American Tobacco, where the applicants sought a
1
Preamble for the constitution of the world health organization (1948)
2
Universal declaration of human rights art 1 and art 25
3
The 1995 Constitution of Uganda as amended
4
Article 39
 declaration that the respondents failed to warn customers of the health risks of smoking and the
Court issued an order to compel them to place warning labels on its packs and advertising
materials.5 Article 22 protects the right to life of all, including the life of an unborn child, by
prohibiting its unlawful deprivation. This article’s effect is that a loss of life caused by a wilful
procedure ie abortions must be done according to a specific law passed by Parliament. All other
deaths arising out of ill-health including maternal and child mortality are contrary to the
constitutional right to health and life. As it stands today, Parliament has not fulfilled its duty to
legislate and legitimise abortion under justifiable circumstances. Instead, the Penal Code Act
under Sections 141, 142, 143 and 212, criminalizes abortion and penalizes any person, including
mothers and health workers who unlawfully enable the termination of a pregnancy. 6However,
Article 14(2) of the Women’s Protocol to the ACHPR legalized safe abortion under justifiable
circumstances, and enjoined the state not to criminally prosecute or punish women who so abort, as
well as exempt health workers from prosecution or disciplinary reprisal when they provide abortion
and post-abortion services to protect women.7 Such cases of authorized medical abortion include
pregnancy arising from sexual abuse, incest and endangered health of the mother or unborn child. In
a similar spirit, the Uganda National Policy Guidelines and Service Standards for Sexual and
Reproductive Health and Rights 2012 recognizes when a pregnancy threatens life, and caters for
the management of access and use of safe abortion and the prevention of unsafe abortion. 8 Such
cases include severe cardiac or renal disease, Preeclampsia, Eclampsia and foetal abnormalities
incompatible with extra-uterine life which are also a lawful defense under Section 224 of the Penal
Code Act.

Thus to note it’s imperative to submit that the right to health is apparent and justiciable according to
Objective 14(b) & 20 operationalized by Article 8A (2) and the case of Centre for Health,
Human Rights and Development (CEHURD) & 3 Ors v. Attorney General making
reference to Articles 22, 33(1), (2), (3), 45 and 287, is in accordance with CESCR General
Comment No. 14. In General Comment No. 14 on the Right to Health notes that: ‘Health
is a fundamental human right indispensable for the exercise of other human
rights. Every human being is entitled to the enjoyment of the highest attainable
standard of health conducive to living a life in dignity.’ This requirement for appropriate
maternal health care delivery is based on several provisions. Thus in Purohit & Another v The
Gambia, 3 the African Commission also observed that the right to health is crucial to the
realization of all human rights and freedoms. Regarding the right to health, states must also take
deliberate concrete measures aimed at achieving the full and progressive realization of the human
rights to health and must secure at least minimum essential levels so that people are protected. The
statement suggests that there is no universally accepted definition of health, and

5
The environment action network vs British American Tobacco
6
Penal code Act
7
The Women’s Protocol to the ACHPR
8
The Uganda National policy guidelines 2012 service standards and reproductive health human rights 2012
 various models and concepts have been proposed to define it. To critically discuss
this statement, it is important to explore the different modules and concepts that
have been put forth to define health and consider their strengths and
weaknesses as follows;

The holistic model is an approach to defining health that considers the interconnectedness of various
dimensions of an individual's well-being. It recognizes that health encompasses more than just the
absence of disease and emphasizes the integration of physical, mental, emotional, social, and even
spiritual aspects of a person's life. The holistic model views health as a dynamic and multifaceted state
that involves achieving balance and harmony in all dimensions. Furthermore, integrating the holistic
approach into mainstream healthcare systems can present challenges due to differing perspectives,
standards, and training. In conclusion, the holistic model defines health as the integration
and balance of physical, mental, emotional, social, and spiritual dimensions. It
emphasizes the interconnection of these aspects and promotes a patient-centered, preventive, and
individualized approach to healthcare. While it has its limitations and challenges, the holistic model
recognizes the importance of considering the whole person and their unique circumstances in
achieving and maintaining optimal health.

This is in reference with Article 24 which provides for the respect of human dignity and freedom from
torture, cruel, inhumane and degrading treatment. Despite this provision, pregnant women continue to
be treated in cruel, inhumane or degrading ways, even at the hands of health service providers. In the
case of Joyce Nakacwa v Attorney General & 2 others9 the petitioner delivered a baby by the
roadside near Naguru Hospital. She proceeded 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. Nakacwa‟s case highlights the torturous situations
to which pregnant women are confronted to in the health care system.

Another is social module in defining health, it is stressed as one of the fundamental rights, without which
the person will not able to enjoy other rights: economic, political and social rights. To support this Uganda
has a collection of laws which complement the constitution or fill in some of its gaps. Article 79 of the
Ugandan Constitution mandates Parliament to make laws for the peace, order, development and good
governance of Uganda. This provision establishes Parliament as the primary legislator. For each act proposed
by Parliament to have the force of law, it must be approved by the President and must conform to the
Constitution. A series of acts are dedicated to the protection, fulfillment and respect of the right to health.
Furthermore Article 43 of The Constitution of the Republic of Uganda, 1995 provides for the

9
Constitutional Petition No.2 of 2001
 limitation on the enjoyment of the fundamental rights and freedoms of others or the public
interest.10 Under the Constitution of the Republic of Uganda, there are only three human rights and
freedoms, which should not be derogated from even in times of emergency. They are: freedom from
torture and cruel, inhuman and degrading treatment or punishment; freedom from slavery or
servitude; the right to fair hearing; and the right to an order of habeas corpus (article 44(a)-(d)).
Apart from these, all human rights and freedoms, including health related rights, may be limited or
derogated from on ground of public interest (article 43(2), which includes protection of the public
health. For example, a person who has tested positive for the corona virus cannot argue that through
quarantine or isolation, his right to liberty has been violated. His rights to liberty and movement
may be restricted because failure to do so may lead to transmission of COVID-19 to others, who
may die, thus denying them the right to life.
Article 45 states that the fundamental human rights and freedoms not specifically mentioned under the Bill
of Rights shall not be taken as to exclude other rights that are not expressly provided therein. This is another
progressive provision which reinforces the duty to observe, promote and enforce the constitutional right to
health in Uganda, despite the fact that it is not expressly provided in the constitution. This article reaffirms
the existence of the right to health.11
For instance, the Food and Drugs Act, Cap 278 focuses on preventing food and drug alterations
that are unsafe for human consumption and the Water Act, Cap 152 governs the use, protection
and management of water resources. Another category of acts focuses on the state implementation
of Parliament‟s constitutional duties by establishing public agencies responsible for providing
health services. Some examples include the National Medical Stores Act, Cap 207 which
established the country‟s hub for efficient and economical procurement of quality medical supplies for
public health services. There is also the National Drug Policy and Authority Act, Cap 206,
which set up an authority to ensure the availability of efficacious and cost effective drugs, and the
National Environment Act, 2019, which oversees the management of a clean and healthy
environment in line with Article 39 of the Constitution. The Uganda Medical and Dental
Practitioners Council (UMDPC) regulates the conduct of all medical and dental practitioners in
Uganda guided by the Medical and Dental Practitioners Act, Cap 272. The Council has a code of ethics
which spells out the obligations that health workers have in the protection of human rights. The Uganda
Nurses and Midwives Council (UNMC) similarly is regulated by the Nurses and Midwives Act,
Cap 274 which requires nurses and midwives to protect human rights. The professionals have ethical
codes set out standards through which human rights can be protected.

Conclusion; There have been various models and concepts proposed in an attempt to define
health among which some are analyzed above.

10
The 1995 constitution of Uganda as amended
11
Art 45
 BIBLIOGRAPHY

National, Regional and International Laws

1. Constitution of the Republic of Uganda 1995

2. National Drug Policy and Authority Act, Cap. 206

3. The Public Health Act Cap 281

4. The Food and Drugs Act, Cap 278

5. The Water Act, Cap 152

6. The National Medical Stores Act, Cap 207

7. The National Environment Act, 2019

8. The Universal Declaration of Human Rights

9. WHO. Ottawa Charter. 1986

10. African Charter on People‟s Rights

11. The Treaty for the Establishment of the East African Community

Books and Articles

1. Ben Kiromba Twinomugisha, Fundamentals of Health Law in Uganda. 2015

2. Lynn White Historical roots of our Ecological Crisis, Science 1203 - 07 (March 10 1967).

3. Ben Kiromba Twinomugisha, Fundamentals of Health Law in Uganda. 2015

4. M Belanger Global health law: An introduction (2011) 15.

Reports

1. World Health Organization. Human rights and health. Available from: https://www.who.int/news-
room/fact-sheets/detail/human-rights-and-health
2. World Health Organization. About World Health Organization. Constitution. Available at:
http://www.who.int/governance/eb/constitution/en/.
3. Centre for Human Rights and Development (CEHURD) „Review of constitutional provisions on the right to
health in Uganda: A case study report‟ EQUINET Case study September 2018.
4. Human Rights Awareness and Promotion Forum (HRAPF) A guide to the normative legal framework on
the rights of LGBTI persons in Uganda (2019).