This case study is produced by the Centre for Human Rights and Development (CEHURD)in the theme work on health rights and law of the Regional Network for Equity in Healthin East and Southern Africa (EQUINET). It examines how the right to health is enforced in Uganda, how it was implemented, and how health rights advocates have suggested the provision be constitutionally interpreted. It is a follow up on the results of work on the right to health that highlighted a need to do further studies in countries that do not have expressed provision on the rights to health.The right to health is one of the fundamental rights for all human beings and several international and regional legislative instruments have been put in place to ensure the realization of this right globally and regionally. Following this guidance, the national level constitution mandates the state to promote, respect and fulfil this right by making provisions to observe health. Considering its supremacy, writing the text in the constitution is just as important as translating it into action. On its own, the constitution is not a practical guide for daily operations because it is full of general and abstract principles. Constitutional implementation is a process designed to ensure the full, effective and continuous application of a constitution by promoting, enforcing and safeguarding it. Failure to implement the provisions therein leaves its goal unattained, and if implementation is left to State leaders or officials, the objectives will not be met.While there is evidence of health benefit in countries where the right to health is explicitly enshrined in the substantive parts of the constitution, there is a paucity of knowledge on implementing implicit constitutional provisions on the right to health in Uganda. This case study identifies the pros and cons of realising an implicit right through political, judicial and popular mechanisms. The objectives are threefold: a) to review the international, regional and national law on the right to health; ) to analyse the role of the political, judicial and popular mechanisms of constitutional implementation in the realisation of the right to health in Uganda; and c) to identify the challenges in the implementation of constitutional provisions on the right to health.The methodology included a content review of legal documents both at international and national level. To answer the broader question on how the right to health is being implemented in Uganda, a validation meeting for a first draft was held with different stakeholders to discuss the three forms of implementation of constitutional provisions in Uganda, and related sources of information. The latter included paper-based and electronic online sources of scholarly literature, media sources, conference papers and case reports. We noted from this consultation that CEHURD, the author, is a primary litigant on the right to health in many of the cases highlighted and bring their own direct experience.The Ugandan government has ratified a significant number of international and regional instruments which recognize and guarantee the right to health. They elaborate its prerequisites, components and the standard to which it should be enjoyed. They further impose obligations on various stakeholders such as the state, individuals, civil society and international community to promote and implement the right. Furthermore, they reinforce the right to health by providing for other supportive rights and freedoms such as life, equality, dignity and access to information, thereby creating an increasingly enabling environment for implementation.In Uganda, the text on human rights was generally first adopted in the 1995 constitution which is currently in force. The constitution has explicit provisions on enforcing rights such as the rights to life, privacy, freedom from torture, and education, among others, but not explicitly the right to health. The right to health was included in several provisions under the national objectives and directive principles of state policy that can be used to protect the right to health. Uganda has also enacted numerous statutory laws to enforce the right to health.Having documented legal provisions is not enough to realize the right to health. The political will to create and enforce polices that support the realization of the right to health is a factor in the constitutionâs implementation.The report presents a number of policy documents that have been put in place to reflect international commitments, including in line with the United Nations Sustainable Development Goals. They are guided by Uganda Vision 2040, which provides direction to all governmental initiatives that aim to fulfil duties and responsibilities, including in for providing health care. The vision also commits the government to ensure that Human Rights Based Approach is applied in policies, laws, and programs to strengthen government officialsâ capacity to respect and protect human rights.Specific to health, government has laid out policies and plans to ensure universal health coverage. There is a documented policy shift from facility based health service delivery to household based service delivery, although the framework for this is not yet in place. Mechanisms to ensure transparency and accountability system in health care system are also still unclear in policy documents. Collaboration between different ministries, departments and agencies, important for realization of the right to health, is still not reflected in a multisectoral strategy to support it. Political implementation of the right to health through the decentralized structure is challenged by weak health systems.Another form of implementation of constitutional provisions is through the judiciary. Article 129 of the Ugandan Constitution establishes the hierarchy of Ugandan courts through which legal redress can be sought in the event of violation of the right to health. While there is increasing litigation on the right to health, documented in the report, it is still scanty. This could be explained by a lack of understanding of human rights doctrine by judicial officers or their caution on litigating on social transformation.There has been a rise in popular implementation of constitutional provisions, with cases described in the case study. This form of implementation has created national discussions on government spending and also empowered individuals and groups to make government accountable on their delivery of health services. Popular activism has also leveraged social media in the mobilisation of citizens by quickly garnering people from different regions behind a cause or event. Unfortunately, this has sometimes met resistance, violence and threat, and it has been sporadic and unsustainable.The case study thus raises a number of challenges in implementing the constitutional provisions on the right to health. These range from constitutional; legislative and policy and institutional barriers. It also points to the economic and service; cultural and religious barriers that need to be addressed to implement the right to health; and the strengthening of as social mobilisation and accountability mechanisms.While the right to health is yet to be explicitly incorporated in the Ugandan constitution, the case study points to a number of ways to implement it. Several issues merit future attention to support this, including: developing increased measures and capacities for accountability; integrating a rights based approach in a multi-sectoral response; ensuring adequate resources to the health system; strengthening judicial understanding and implementation of health rights; and strengthening issue based civil society groups and processes that are focused on advancing the right to health with the intention to realize positive public and policy outcomes.
