The Political Question Doctrine in Uganda: A Reassessment in the Wake of CEHURD

Abstract

The political question doctrine obliges courts to set aside certain government actions and decisions from judicial review. The doctrine emerged in the United States in the early 19th Century. It first appeared in Ugandan jurisprudence in Ex parte Matovu (1966). After Matovu, the doctrine kept a relatively low profile in Uganda. However, the doctrine reemerged dramatically in the case of Centre of Health Human Rights & Development (CEHURD) and Three Others v. Attorney General. In CEHURD, the Constitutional Court of Uganda held that the political question doctrine prevented the court from reviewing government policy concerning the provision of maternal health care. Critics of the CEHURD judgment questioned the legitimacy of the political question doctrine and contend that the doctrine should not apply to matters involving human rights. Criticisms continue as the matter sits on appeal before the Supreme Court of Uganda.Notwithstanding the protestations, the political question doctrine has its rightful use and place in Uganda. The doctrine springs from a necessary limitation on judicial power and the need to honour purposeful allocations of power among the other branches over government. Thus the doctrine has a fundamental role to play in achieving separation of powers and allocating of government responsibilities. Despite its utility, the political question doctrine should not be used an excuse for the judiciary to abscond from core responsibilities or to avoid controversy. This is especially true in nations where courts are historically susceptible to political pressure. Thus it is important that Ugandan judges employing the doctrine be cognizant of its principled origins. Lastly, judges should appreciate that the political question doctrine is a flexible tool. If a court learns over time that it needs to be more or less engaged with the judicial oversight of an issue, the political question doctrine permits the court act on its knowledge. This aspect of the doctrine can be especially valuable in the unsettled context of judicial oversight and enforcement of social and economic rights.