CEHURD and Health Rights Justiciability in Uganda

 The Supreme Court decision in Center For Health, Human Rights and Development, commonly known as CEHURD, and Others v Attorney General, Constitutional Appeal Number 1 of 2013, remains one of the most important Ugandan authorities on the place of health rights within constitutional litigation. The case is often remembered because it dealt with maternal health, but its precedent is wider than that. It addresses a question that appears simple until one sees how easily it can be used to close the courthouse door: may a court hear a claim about government failure in the health sector, or must it step aside because the matter involves policy, budgets and political judgment? The Supreme Court answered that question in a way that strengthened constitutional accountability without pretending that judges should manage hospitals.

The dispute began with Constitutional Petition Number 16 of 2011. CEHURD, Professor Ben Twinomugisha, Rhoda Kukiriza and Inziku Valente sued the Attorney General over alleged failures in public maternal health services. Their complaint was not a general lament that health care in Uganda needed improvement. It was framed around specific omissions, including the lack of basic maternal health commodities, shortages of doctors and midwives, inadequate budgetary attention to maternal health and poor treatment of expectant mothers in public facilities. Those failures were linked to the deaths of women during childbirth and to constitutional guarantees concerning life, dignity, women, children, supremacy of the Constitution and Uganda’s international obligations.

At the first stage, however, the merits were never heard. The Attorney General raised a preliminary objection before the Constitutional Court, arguing that the petition invited judges to decide political questions. In that argument, health financing, staffing, medical supplies and the organisation of hospitals were matters for the Executive and Parliament rather than the Judiciary. The Constitutional Court accepted the objection and struck out the petition. It held, in substance, that the issues did not disclose proper questions of constitutional interpretation and fell within the political question doctrine. That decision was serious because it meant that the petitioners could not even present evidence on whether the alleged failures had occurred or whether they breached the Constitution.

The Supreme Court approached the matter more carefully. Justice Esther Kisaakye, delivering the lead judgment, treated the petition as a constitutional claim because the petitioners had identified both the acts and omissions complained of and the constitutional provisions allegedly violated. That was enough to require the Constitutional Court to hear and determine the dispute. The Supreme Court did not say that every poorly performed government programme automatically becomes a successful constitutional case. It said something narrower and, in my view, more durable: where a petition alleges that conduct of the Government or a public authority is inconsistent with the Constitution, Article 137 gives the Constitutional Court the duty to interpret and decide the issue.

The rule from CEHURD is that the political question doctrine has limited room in Uganda’s constitutional system. It may protect a sphere of genuine executive or legislative discretion, especially where the Constitution assigns a function to another branch. Yet it cannot operate as a broad shield whenever a case has policy consequences. Many constitutional cases have policy consequences. A claim about education affects schools. A claim about prison conditions affects budgeting. A claim about public finance may affect government priorities. If all such cases were dismissed as political, constitutional supremacy would be weakened precisely where it is most needed.

The Court’s reasoning is useful because it does not collapse separation of powers into judicial silence. Courts are not expected to draft the national health budget, recruit nurses or decide which hospital receives which ambulance first. That kind of managerial role would be institutionally awkward and, in some cases, unwise. But the fact that courts should not run the health system does not mean they cannot examine whether government action or inaction has violated constitutional rights. The distinction may look thin in some hard cases, but it is essential. A judge can ask whether the Constitution has been breached without becoming a Minister of Health.

Chief Justice Bart Katureebe’s concurring opinion gives the case a wider constitutional meaning. He recognised that the appeal raised issues about the right to health and the proper role of courts when the matter before them touches the functions of the Executive or Legislature. His reasoning may suggest that Ugandan constitutional law should not be read as hostile to social rights simply because such rights often require money and planning. The point is not that courts have unlimited competence. It is that constitutional interpretation cannot be avoided merely because the dispute is politically sensitive.

CEHURD is also important for public interest litigation. The petition was brought by a civil society organisation, an academic and relatives affected by maternal health failures. Their standing and framing showed that constitutional litigation can be used to test systemic failures, not only individual complaints. This does not mean public interest cases become easy. Petitioners must still plead carefully, offer evidence and ask for remedies that a court can sensibly grant. Still, the precedent keeps open a route for citizens and organisations to ask whether state failure in service delivery has become state failure under the Constitution.

The judgment also connects with earlier Ugandan authorities on constitutional interpretation. The Supreme Court relied on the broad language of Article 137 and on cases such as Ismail Serugo v Kampala City Council and Attorney General, which accepted that acts and omissions may be challenged where they are said to contravene the Constitution. It also considered the political question reasoning associated with Attorney General v Major General David Tinyefuza, but treated it as a limited doctrine rather than an automatic bar. That careful treatment matters because Tinyefuza could otherwise have been stretched far beyond its proper setting.

One should not overstate the decision. The Supreme Court did not hold that Uganda had violated maternal health rights. It did not determine whether any particular woman died because of a specific state omission. It did not settle how much money must be allocated to maternal health. The judgment was about jurisdiction and justiciability. Yet that procedural point had real practical force. By rejecting the threshold objection, the Court allowed the petition to return to the Constitutional Court for a full hearing. The later 2020 merits decision in CEHURD and 3 Others v Attorney General shows why the 2015 appeal mattered. Without the Supreme Court’s ruling, the constitutional substance of the maternal health claim would likely never have been reached.

For lawyers, the drafting lesson is fairly direct. A petition about health rights should not simply state that the health sector is failing. It should identify the public authority responsible, the act or omission complained of, the constitutional provisions affected and the factual connection between the omission and the harm. The petitioners in CEHURD appear to have benefited from pleading concrete failures such as lack of emergency obstetric care, lack of basic supplies and poor staffing, rather than relying only on broad moral language. Constitutional law works best when a social problem is translated into a legal question that a court can answer.

For government lawyers, the case sends a different message. The political question doctrine should not be used as a procedural shortcut. The State may still argue that the evidence is weak, that resources are limited, that a requested order is too intrusive or that a matter is better addressed through a different remedy. Those are legitimate arguments in the right case. What CEHURD makes harder is the claim that courts have no role at all whenever health policy or resource allocation is mentioned. That argument now sits uneasily with the Supreme Court’s view of Article 137.

There is also a subtle caution for judges. CEHURD invites judicial engagement, but not judicial overconfidence. Health systems are complex. A court that recognises a constitutional failure must still craft remedies with care. Declarations, reporting obligations and directions to consider minimum obligations may be appropriate in some cases. Detailed managerial orders may not always be. The strength of the 2015 decision is that it opens the door while leaving space for institutional restraint once the merits are heard.

The enduring value of CEHURD is that it confirms that constitutional rights do not disappear at the boundary of public policy. The Executive makes policy, Parliament legislates and allocates resources, but both operate under the Constitution. When citizens allege that state conduct has crossed constitutional limits, the Judiciary cannot simply say that the subject is too political. The Supreme Court’s precedent is therefore not only about maternal health. It is about whether constitutional supremacy has practical meaning when the affected people are patients, mothers, children and families who depend on public services.

Source note. This article is based on Center For Health, Human Rights and Development (CEHURD) and Others v Attorney General, Constitutional Appeal 1 of 2013, [2015] UGSC 69, Supreme Court of Uganda, judgment delivered on 30 October 2015, with reference to the later merits decision in CEHURD and 3 Others v Attorney General and Article 137 of the Constitution of the Republic of Uganda, 1995. It is prepared for public legal education only and should not be treated as legal advice for any health rights litigation.

Suggested citation

Ronald Serwanga, “CEHURD and Health Rights Justiciability in Uganda” East Africa Legal Insight (11 June 2026).