By Dr. Fred Sekindi
Ana Relinque López
Does the on-going strike by doctors raise any human rights/constitutional issues?
Uganda’s doctors under their umbrella body, Uganda Medical Association (UMA) have laid down their tools after government failed to respond to their grievances. On 1 November 2017, it was claimed by the Daily Monitor that President Yoweri Museveni reportedly threatened to declare a state of emergency and arrest doctors, if they put down their tools. This on-going strike raises issues of human rights issues and the presidential exercise of constitutional powers.
Article 20(2) of the 1995 Constitution demands that all organs and agencies of Government and all persons must respect, uphold and promote rights provided under therein. This responsibility to promote rights infers an obligation for all persons to intervene to prevent a violation of human rights. Thus, arguably, doctors could be held liable for the deprivation of life as protected under Article 22 of the 1995 Constitution because, they have a duty to intervene to prevent death from occurring. Thus their industrial action must not cause them to neglect their obligation to intervene to prevent the death. This distinguishable individual liability for human rights violation is a Ugandan innovation. International Human rights jurisprudence suggests that human rights are rights that we enjoy against the state and, therefore, only the state may be liable for a human rights violation. In this context, doctors must put arrangements in place to care for their patients.
However, there is a competing right to demonstrate protected under Article 29 (1)(d) of the 1995 Constitution which protects protest marches, press conferences, public and private meetings, counter-demonstrations, ‘sit-ins’, motionless protests etc. Thus, the on-going strike is a human right that is protected by the Constitution.
In assessing the hierarch of these two competing rights, were guided by Articles 43 and 44 of the 1995 Constitution that determines the circumstances under which constitutional rights may be limited. Article 43 indicates that the enjoyment of rights contained in the Constitution shall not prejudice the rights of other or the public interest. Therefore, doctors may not enjoy the right to demonstrate if such enjoyment is not in the public interest or where it infringes the rights of others. This restriction on the enjoyment of rights is unusual in international human right jurisprudence as commonly, a human right is an individual right that may not be competed with other group or personal rights. However, this conceptualisation of human rights is often rejected by relativists as individualistic and western.
Article 44 of the 1995 Constitution declares 4 human rights non-derogable, that is to mean that under no circumstances may these rights be limited. These are the protection against torture inhuman and degrading treatment, freedom from slavery and servitude, the rights to a fair hearing, and the right to an order of habeas corpus.
We may therefore conclude that if the right to demonstrate, such as the on-going doctors’ strike, prejudices the rights of other Ugandans, such as the right to life, and/or is against the public interest, then the state may restrict this right. It is important to note that the public interest here is not restricted to whether the public agrees with the strike but it also includes whether the doctors should adequately be remunerated.
In the circumstances what could the state do?
If claims by the Daily Mirror that the President has threatened to declare a state of emergency are to be believed, Article 110(1) of 1995 Constitution provides that a president may in consultation with the cabinet, issue a proclamation declaring a state of emergency. Article 46 and 48 empowers Parliament and the Uganda Human Rights Commission to closely monitor the state of emergency. It is important to note here that where a state of emergency is declared, the protection of human rights is suspended. This means that the doctors can be detained. The 1995 Constitution under Article 47 provides safeguards for persons detained under the state of emergency that include to be provided within 24 hours of the grounds on which they have been detained, to inform the next of kin or other person nominated by the detainee of the detention and to allow such person to access the detainee within 72 hours of the detention and for a notification of the arrest to be published in the gazette not longer than 30 days of the detention.
In conclusion, while the 1995 Constitution safeguards the doctors’ right to demonstrate, the same document imposes an obligation for doctors not to arbitrary deprive persons of life. The right of the doctors to demonstrate may be restricted if it prejudices rights of others and where its enjoyment is not in the public interest. The president may declare a state of emergency. This means that the protection of human rights will be suspended and doctors may be arrested.