General Objective

To examine the legal framework relating to health care and child survival in Uganda

Specific objectives

To find out the legal framework relating to health care and child survival in Uganda

To find out the causes of Infant mortality in Uganda

To find out the challenges faced by the government and other stakeholders in promotion of health
care and child survival in Ugandan

To find out what can be done to promote health care and child survival in Uganda

CHAPTER THREE

LEGAL ASPECTS RELATING TO HEALTH CARE AND CHILD SURVIVAL IN UGANDA

There are numerous legislations governing the promotion of children rights and they include both
international and domestic laws.

INTERNATIONAL INSTRUMENTS

UNITED NATIONS CONVENTIONS ON THE RIGHTS OF THE CHILD

Article 4 of the UN convention on the Rights of the Child confers a responsibility upon
Governments to take all available measures to make sure children’s rights are respected, protected
and fulfilled. It continues and underscores that when countries ratify the Convention, they agree to
review their laws relating to children. This involves assessing their social, legal, health and
educational systems, as well as levels of funding for these services. Governments are then obliged
to take all necessary steps to ensure that the minimum standards set by the Convention in these
areas are being met. They must help families protect children’s rights and create an environment
where they can grow and reach their potential. In some instances, this may involve changing
existing laws or creating new ones. Such legislative changes are not imposed, but come about
through the same process by which any law is created .1

Article 6 focuses on Survival and development and provides that Children have the right to live and
that Governments should ensure that children survive and develop healthily.2

Article 6(2) of the Convention is to the effect that that the child by reason of his physical and
mentalimmaturity needs special safeguards and care including appropriate legal protection before as
well as after birth.3

Article 24 of the Convention on the Rights of the Child provides that Children have the right to
good quality health care the best health care possible-to safe drinking water, nutritious food, clean
and safe environment and information to help them stay healthy.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

1 https://www.unicef.org/crc/files/Survival-Development.pdf
2 ibid
3 Preamble,CRC,1989,General Assembly Resolution44/25annex,44UN GAOR Supp.(no.49) at 167, UN
DOC.A/44/49(1989)
Article 24(1) of International Covenant on Civil and Political Rights, 1948 provides every child
shall have without any discrimination as to race colour, sex , language, religion,nation and social
origin such measures of protection as required by his status as a minor on the part of his family,
society and the state. 4

AFRICAN CHARTER ON HUMAN AND PEOPLE'S RIGHTS

Article 4 of the African Charter on Human and People's Rights provides that the right to life is
inviolable and must be respected at all times.5

AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD

Article 5 of the African Charter on the Rights and Welfare of the Child provides that every
child has an inherent right to life and that it shall be protected by law.6

Article 21 of the African Charter on the Rights and Welfare of the Child ,1990 protects the
children against harmful social and cultural practices affecting the welfare , dignity,normal growth
and development of the child.7 Article 22(2) is to the effect that state parties to the charter shall
ensure to the maximum extent possible the survival,protection and development of the child.
Article 1(3) of the World Health Organisation defines right to health as a state of complete
physical, mental,social wellbeing and not merely the absence of disease or infirmity.8

DOMESTIC LAWS

THE CONSTITUTION OF THE REPUBLIC OF UGANDA 1995 AS AMENDED

In our constitution Article 20(1) of the Constitution of the Republic of Uganda 1995 as
amended9 provides that fundamental rights and freedom of the individual are inherent and not
granted by the state. The above provision was fortified in the case of Reverend Christopher
Mtikila v Attorney General of Tanzania 10where court stated that rights are inherent and not gifts
from the state. The rights exist before the state. The Right to life therefore is inalienable and can not
be taken away by anyone including the state.

Article 22(1) of the Constitution of the Republic of Uganda 1995 as amended provides for Right
to life. It provides as thus;

“No person including the unborn shall be deprived of life intentionally except in execution of a
sentence passed in a fair trial by a court of competent. Article 22(2) of the Constitution of the
Republic of Uganda 1995 as amended is to the effect that no person has the right to terminate the
life of an unborn child except as may be authorised by law.

Article 34(3) of the Constitution of the Republic of Uganda 1995 as amended provides that no
child shall be deprived by any person of medical treatment. Article 257(1) of the Constitution has
defined a child as one under the age of 18 years.

4 Ian Brownlie and Guy S. Goodwin-Gill(2006), Basic Documents on Human Rights,Oxford University press,
NewYork
5 ibid
6 ibid
7 ibid
8 ibid
9 The Constitution of the Republic of Uganda 1995 as amended
10 1995 TLR 31 (HC)
In the case of Mckay v. Essex Area Health Authority 11, It was held that the unborn child has a
duty not to be injured by any one. It has also the rightnot to be born deformed through medical
negligence. Terminating an unborn child's life is contrary to public policy and sanctity of life.

It is noteworthy that there are circumstances where termination may be allowed . In R v Bourne12
Mac Naughten held that the surgeon had not got to wait until the patient was in peril of immediate
death, but it was his duty to perform the operation if on reasonable grounds and with adequate
knowledge he was of the opinion that the probable consequences of the continuance of the
pregnancy would be to make the patient a physical or mental wreck.

Objective xiv (b) of the National objectives and Directives Principles of state policy provides
that the state shall endeavour to fulfil the fundamental rights of all Ugandans to social justice and
economic development and shall in particular ensure that-a all Ugandans enjoy rights and
opportunities and access to health services , education, clean and safe water,food security among
others.

Objective XIX provides that the state has a duty to protect family which is the natural and basic
unit of society. Children are the bedrock of society and failure to protect them would tantamount to
destruction of the nation.

Objective XX provides that the state shall take all practical measures to ensure provision of basic
medical services to the population.

THE CHILDREN'S ACT CAP 59

Section 6(1) of the Children's Act Cap 59 13 provides that every parent shall have parental
responsibility for his or her child. Section 6(2) is to the effect that where natural parents are
deceased, parental responsibility may be passed on to relatives of either parent , or by way of care
order , to the warden of an approve home , or to a foster parent.

THE CHILDREN (AMENDMENT) ACT 2016

Section 3 of the Children Amendment Act 201614 provides for the welfare principle, It provides
that the welfare of the child shall be of paramount consideration whenever the state , a court, a
tribunal, a local authority or any person determines any question in respect to the upbringing of a
child, the administration of a child's property , or the application of any income arising from that
administration.

THE PENAL CODE ACT CAP 120

Section 141 of the Penal Code Act15 provides that any person who with intent to procure the
miscarriage of a woman whether she is or is not with child ,unlawfully administers to her or causes
he to take any poison or other noxious thing, or uses any force of any kind , or uses any other means
commits a felony and is liable to imprisonment for fourteen years.

11 [1982] 2 ALLER 771

12 [1938] 3 ALL ER 615
13 The Children Act Cap 59
14 The Children(Amendment Act) 2016

15 The Penal Code Act Cap 120