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
