CLE 2 MOOTING and Briefing PROBLEM
Healthy Future and One Other v. the Attorney General
The following case was brought under Article 137 of the
Uganda Constitution.
The lead Petitioner in the Case is “Healthy Future.” Healthy Future is a Ugandan corporation
and a registered Non Governmental Organisation. Healthy Future is dedicated to the promotion of the health of
unborn children.
The other petitioner is Akurut Acen as legal representative
of Jangu Adam. Adam is an 8 month-old
fetus that Akurut Acen is carrying.
Healthy Future has chosen not to include any born human
petitioners in this case. Some
argue that Healthy Future is merely using this issue as a back door means of
establishing the personhood of the unborn in Uganda. Healthy Future is largely
funded by the American pro-life organization Focus on the Faith.
Healthy Future filed a petition seeking the provision of
folic acid to all women of childbearing age in Uganda. Adequate folic acid intake during the
preconception period (which is the time right before and just after a woman
becomes pregnant) helps protect against a number of congenital malformations,
including neural tube defects. Neural tube defects are severe abnormalities of the central
nervous system that develop in babies during the first few weeks of pregnancy
resulting in malformations of the spine, skull, and brain; the most common
neural tube defects are spina bifida and anencephaly. The risk of neural tube defects is
significantly reduced when supplemental folic acid is consumed in addition to a
healthy diet before conception and during the first month after conception.
Uganda’s Ministry of Health decided to adopt a programme for
the provision of folic acid to pregnant mothers and women seeking to become
pregnant in 2009. However, every
year since 2009 the budgetary allocation for folic acid has been dropped. The only folic acid provided to
pregnant mothers and women seeking to become pregnant since that time has been
offered through donor funds or has been purchased by individuals. The Ministry of Health said that it has
had to make the decision to cut the folic acid programme each year due to a
reduction in the funds it has received from the Central Government. It reasons that it must cut costs
associated with the purchase of medicines and medical equipment because it must
use all allocated funds on staff and building maintenance in order to avoid
staff layoffs and to ensure proper upkeep of existing facilities. In addition, an estimated 30 billion funds
are also used at an annual staff “team-building and health education” retreat
held at Turtle Bay in Malindi, Kenya.
The Petitioners assert that all of the unborn in Uganda have
the right to have their mothers provided with folic acid. This is based on an alleged right to
health. They assert that the
unborn have a heightened right to government health provision as they are not
in the position to provide for themselves.
Healthy Future seeks a variety of forms of relief which
include the requirement that folic acid supplements be added to all flour in
Uganda, that folic acid tablets be provided to all women of childbearing age,
that women of child bearing age be provided with a government sponsored
supplement to defray the cost of folic acid tablets, that the Ministry of
Health be forced to make other budget cuts that do not directly effect health
to the same extent as cutting the folic acid programme that the Ministry of
Health adopted in 2007, or any other form of relief that the court can order
which would improve the availability and provision of folic acid to women of
child bearing age.
The Constitutional Court heard the case. The Constitutional Court struck down
the petition. In a one sentence
holding, the Constitutional Court held that the petition was barred by the
political question doctrine citing their recent decision in Centre for Health Human Rights and
Development (CEHURD) and Three Others v. Attorney General, Constitutional
Petition No. 16 of 2011, UGCC, available at http://www.ulii.org/ug/judgment/constitutional-court/2012/4.
Healthy Future filed a timely appeal with the Supreme Court
of Uganda. The Supreme Court has
set the matter down for immediate oral argument along with the pending CEHURD case. Counsel for Healthy Future will argue the case for the
Petitioners and the Office of the Attorney General will argue the case for the
Respondent
The Supreme Court has asked the appellants and respondents to
offer oral argument on the following issues:
1. Are the
petitioners proper parties to bring a petition under Article 137?
2. Is there a right
to health in Uganda that emanates from the Constitution?
3. Is the right
to health judicially enforceable?
4. What is the
legal status of the unborn under the Ugandan Constitution?
5. Is there any
means or mechanism under Ugandan law through which the constitutional rights of
the unborn can be enforced by or on the behalf of the unborn?
6. What
remedies, if any, would the court be authorised to provide if the Court decided
to grant some form of relief to the Appellant?
You will be given the
choice of taking the side of the Appellant or the Respondent along with one
partner. Briefs will be due at the conclusion of
the semester. Oral arguments will
be made at the end of March and in early April. Teams will register for oral argument slots and for which
side they will present on and brief.
There needs to be an even number of teams presenting on both sides. You will receive further instructions
about the specifications of the brief and the oral argument assignment in the
near future. These instructions
will be posted at ucucle.blogspot.com
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