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Justice Mugambe’s landmark ruling in line for global award

Four months back, Justice Lydia Mugambe awarded a couple Shs 85m after finding Mulago hospital culpable of negligence for their missing newborn.

The decision has been praised for advancing the rights of women and was recently shortlisted to win the Golden Gavel award, writes ROSEBELL KAGUMIRE.

Aruling by a Ugandan High court judge Justice Lydia Mugambe Ssali is being hailed for advancing right to health as well as the rights of women and girls in the country.

On January 24, in the case of a missing baby from Mulago national referral hospital, Justice Mugambe ruled that a public hospital’s negligence resulting in the disappearance of a couple’s baby leading to psychological torture for the parents had violated their rights to health and access to information.

This ruling is one of three top decisions from Africa that could win this year’s Golden Gavel for best judicial decision in the Gender Justice Uncovered awards.

Justice Lydia Mugambe

Women’s Link Worldwide, an international organization, hosts the awards to shed light on the positive and negative impacts court decisions have on the lives of women and girls around the world. Justice Mugambe’s decision is among 17 rulings that were nominated for the best judicial decision from all around the world.

MISSING BABY CASE

In March 2012, a couple, Michael Mubangizi and Jennifer Musiimenta, had one of their newborn twins missing shortly after delivery at Mulago hospital. The two contended that their babies were born alive but the hospital staff said one of them had died but failed to provide the body to the parents.

In a civil suit filed at the High court in 2014, the couple sued Mulago hospital. Also, the couple was not aware at the delivery time that Musiimenta was carrying twins because she had only been afforded one antenatal visit early in pregnancy.

Three days after delivery, the hospital handed the couple a body they claimed was the ‘dead twin’ but a DNA test proved it was not their child. The parents of the child, along with non-governmental advocacy organization, Center for Health, Human Rights and Development (CEHURD), sued the attorney general and executive director of Mulago hospital for unlawful disappearance of their baby.

Court found that the actions of the hospital violated the couple’s rights by failing to provide an adequate account for the whereabouts of her second baby, confirm when the baby died or why the couple could not see the baby.

Mulago was ordered to pay general damages to the couple amounting to Shs 85 million. Justice Mugambe also ruled that the midwife on duty when the twins were born must account for the missing twin baby since she oversaw the delivery.

This was not the first case of violation of maternal health rights. Even as this judgment was being read, another mother, Fatuma Nakayima, was suing government for compensation over her newborn who went missing from Mulago in December 2016.

WHY RULING STANDS OUT?

At first blush, the facts of the case appear to be a straightforward horrific experience for a couple during the birth of their children due to the hospital’s negligence. In the verdict, however, the High court recognized the need to not only address the human rights of the couple who were parties to the case, but also the failure more generally on the part of the state to fulfill its obligation of the right to health.

The ruling puts a spotlight on the hospital’s role. It also looks at how the state failed the woman before she even set foot in the hospital on delivery day by failing to ensure she had access to antenatal care throughout the duration of her pregnancy.

The decision specifies that a woman’s inability to access sufficient antenatal care demonstrates a failure on the part of the state to fulfill its obligations under the right to health. The court decision also points to overburdened hospital staff which led to errors as another example of the failure to comply with obligations under the right to health.

The court used jurisprudence from the African Commission on Human and Peoples’ Rights to affirm progressive realization of rights. Justice Mugambe’s ruling points to the state’s duty to devote special attention and resources to women whose circumstances make them vulnerable and those who suffer from multiple forms of inequality.

The decision is crucial because Uganda is still one of ten countries that account for nearly 59 per cent of global maternal deaths at about 343 mothers lost per 100,000 births, according to a Unicef report 2016.

In a recent inaugural lecture at Makerere University titled: “Maternal Health Rights, Politics and the Law,” Prof Ben Kiromba Twinomugisha reiterated that most causes of maternal mortality are surmountable and the benefits of investing in maternal health far outweigh the costs.

What is required is good politics that prioritizes investment in key issues of human development like maternal health rights. “With increased political will and prudent, judicious and efficient use of financial resources, maternal mortality and morbidity can be drastically reduced.”

He called on parliament to ensure the available funds are allocated in a cost-effective and fair manner, paying particular attention to vulnerable groups such as rural and urban poor women.

Government should prioritize investment in health systems, including meeting the Abuja Declaration target to invest 15 percent of the national budget in health.

Rosebell Kagumire is a writer and human rights advocate.

Until May 31, anyone anywhere in the world can vote for this People’s Choice award through http://www.womenslinkworldwide.org/%20en/awards/cases/missing-baby?vote=1

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