“…I went back again and pleaded with the nurses to attend to my wife but they didn’t listen to me,” revealed David Mugerwa who lost his wife while giving birth at Nakaseke District Hospital in 2011. “They told me the doctor who was to attend to her was not in the hospital,” he added. “My wife died after waiting for help for 10 hours; she died on a stretcher without receiving the help she needed to save her life and that of the baby…”
Asiimwe (not her real name) and Mugerwa were expecting their third child. They had had a smooth pregnancy and were beaming with expectation when they checked into Nakaseke District Hospital on morning of that fateful day in 2011. The nurses who examined her on arrival indicated that she was progressing well towards childbirth. But mid-way through, something went wrong and she needed urgent specialized attention to save her life and that of the baby. Mugerwa quickly reported this turn of events to the nurses who turned him away at first. On noticing that the situation was deteriorating, he went back to plead with the nurses to attend to his wife, but they ignored him, telling him to wait for a doctor who was to attend to his wife but was not in the hospital at the time. Asiimwe stayed for over 10 hours, in critical condition without critical care to save her life and that of the baby. On realizing that no help was forthcoming, Mugerwa requested that he be given an ambulance to transfer his wife to another hospital. But this was also not forthcoming- he was told that the ambulance had no fuel. When he asked to be allowed to fuel, the hospital administrator, including the assistant administrator were not available to discharge the patient and release the ambulance…By the time the doctor returned, it was too late: Asiimwe and the unborn baby had died.
“She died on the stretcher without receiving the help she needed to save her life and that of the baby,” Mugerwa told us. “She didn’t have to die, she could have been saved,” he added. “After she died, they left her on the stretcher and disappeared without an explanation…”
Tens of women died in the facility each month
Asiimwe is among the 10 to 15 women women who died every month in Nakaseke District Hospital before 2015. According to Florence Nangendo, a village Health Team member, who has been acting as a link between health facilities and the community in the Nakaseke District for over 20 years, women died during childbirth at the Nakaseke District Hospital due to poor services and negligence. “Every month, we lost 10 to 15 women in the hospital because of negligence and poor maternity services,” she noted. As a result, women shunned the hospital because they knew that by going to deliver at the hospital “they had one foot in the grave”. She noted that women preferred the services of traditional birth attendants- a situation that drove the maternal deaths even higher as women could not access specialized care in case they developed complications.
CEHURD took steps to change this situation
But the Center for Human Rights and Development (CEHURD), a social justice organization based in Uganda, took action to reverse this trend. Since 2011, with financial support from Open Society Initiative for Eastern Africa and other partners, CEHURD has been working to advance the right to health, especially maternal health through public interest litigation to foster accountability in the health system. The case of Asiimwe is one of the many cases that CEHURD had received over time regarding deaths arising from negligence by health workers and dysfunctional health system. As a first step, CEHURD decided to seek dialogue with the hospital administration and the district authorities to seek explanation on what happened and an acknowledgement of the mistake and apology to the victim’s family, but they were very indifferent.
“When we realized that both the district authorities and hospital were not interested in speaking with us, we decided that ‘these people must be held accountable’; the level of impunity was at a level that needed to be checked,” recalled David Kabanda, the lead counsel and Programs Coordinator, CEHURD.
Mediation having failed, in March 2012, CEHURD filed a case in court to seek accountability for the negligent death of Asiimwe. They not only filed a negligence case, but also a human rights case.
“I stood before a judge and told him that this is not an issue of negligence alone, it is an issue of violation of the right of the pregnant mother as well as that of the children who were under her care.” said Kabanda.
To ensure that the litigation was successful, CEHURD obtained a testimony from Mugerwa; undertook investigations by meeting all relatives of Mugerwa and the wife, especially those who were at the hospital when the death happened- like the mother in law- who was one of the witnesses. CEHURD then visited the hospital to ascertain what happened, visited the Nakaseke District to find out how they related with the hospital and their role in health care delivery; held several legal expert meetings especially with lawyers of like minds and collaborated with them to conceptualize the case and wrote the entire court document, also known as the pleading and then filed the case in court. To gather evidence, they went to the mortuary to get the post-mortem report as well as the death certificate to have a medical finding as to the cause of death and investigated on what the victim/deceased’s occupation was. CEHURD also held several meetings with the community where the victim lived to understand the situation and mobilized them to participate in court hearing to show solidarity for the case. At the same time, CEHURD held several media engagements to communicate the case to the public to enlist their support. In addition CEHURD worked with various civil society organizations that showed solidarity by turning up for court hearings and during press conferences. The judge, after hearing the case, decided to visit the hospital to ascertain the claims by the health workers and understand the circumstances under which the hospital operated.
The case brought to the fore several fundamental questions: the district authorities had neglected their duty of supervising the services delivery at the hospital as evidenced by lack of communication between the hospital and the district, lack of knowledge by the district about what was happening in the health facility, including lack of information on the death of Asiimwe and the circumstances surrounding her death, and lack of knowledge of the hospital management structure and processes. It further emerged from the visit of the location by the judge that the health worker absconded duty due to lack of close supervision. In addition, the facility’s infrastructure was found to be dilapidated, hospital understaffed- with only four midwives to take care of the large number of mothers seeking maternity services at the facility. The hospital did not have the requisite health commodities and supplies to provide quality maternity health care services.
The judgement and its centrality to the right to emergency health care
After visiting the hospital and examining the evidence, the judge ruled in favor of the right to health. For the first time in Uganda, a Judge pronounced that the right to health and maternal health in particular are justiciable in Ugandan laws. In the circumstances, Nakaseke District Local government was charged with the responsibility to monitor health service provision to residents of Nakaseke. By failing to do that, the Judge found them liable for violating human rights and maternal health rights of the deceased.
“We saw for the first time, the judge rule that Ugandans have a right to emergency treatment/ health care,” beamed Kabanda. “Because if a woman’s pregnancy is obstructed, she has the right to emergency treatment to save her life,” he added.
The judgement also took into account the well-being of the children when the bread winner dies as well as psychological torture that partners go through as a result of losing their wives due to negligent acts of health workers or a failed system. As such, the family was awarded UGX 35 million- equivalent to US£ 10,000.
As a result of this ruling, there has been tremendous reduction in maternal deaths from 10 to 15 women a month in 2011 to hardly a case reported in a month presently. This is thanks to improvement in quality of healthcare in the health facility because of improved investment in equipment, supplies, and additional health workers – mid-wives increased from four to eight. Additionally, the hospital has undergone major renovations while attitude of health workers towards patients has improved greatly because they were put on notice to treat patients with professionalism or be interdicted. The administration to date is more accountable and does not discriminate against the poor seeking health care services. At the same time, there has been increased community trust in the hospital, with expectant mothers now choosing to go to the facility because they are assured of good services- reducing chances of women dying in the hands of traditional birth attendants.
On the other hand, Mugerwa has been able to use the money awarded to him to improve the quality of his life and to educate his children.
More importantly, the judgement set precedent for the right to health in Uganda and the region. The case now makes emergency care a right in Uganda that is enforceable. The judgement in effect made the right to health a legal, and not just a moral duty, which is enforceable in the courts of law. It created jurisprudence that is for today and future- this will go a long way in aiding the realization of the right to health. Noteworthy, in holding duty bearers accountable, they are reminded of their duty to respect rights. Holding them accountable, will eventually and progressively lead to the realization of the right to health.
“When we litigated the Nakaseke case, we never had the right to emergency treatment, yet countries like Kenya, and Zimbabwe had it as a legal right, noted Moses Mulumba, Executive Director, CEHURD. “For the first time we have engraved the right to obstetric care in the law because the judge was clear that access to emergency obstetric care was a matter of right,” he added.
The judgement also for the first time clarified the role of the local authorities in the provision of health care. The role of local government in the health sector has never been clear since the 1970s. This is because some powers were given to local government while some powers were retained by the central government, making it difficult for local to perform simple roles like supervision due to insufficient resources. But the judgement made it clear that it is extremely important that the local government actually does the supervision of health care provision in the district.
CEHURD continues to work towards ensuring that the judgement is implemented. It has signed a memorandum of understanding with Nakaseke District, which has asked CEHURD to periodically train their staff on human rights and what is expected of a health worker from a human rights perspective. CEHURD had continued to work in collaboration with local government of Nakaseke and continued to meet with the hospital administration and carried out discussions on health care delivery. At the same time, CEHURD is working with the Uganda Ministry of Health to come up with a manual on gender and human rights and health- using the Nakaseke case.
On his part, Mugerwa is happy that “through his wife’s death, tens of women are now being saved each month from dying during childbirth”. He is also happy that because of his experience, the poor are now being treated in the facility with respect and accorded the services that they deserve. He is happy to see services improve at the hospital and more men choosing to support their wives through the pregnancy and delivery process.