100 Kabumba/Application of African Union (human rights) law in Uganda decision.54 In considering the right to a fair hearing, the Court of Appeal referred not only to articles 28, 44(c) and 45 of the Ugandan Constitution, but also to the ‘African Commission’: ‘The African Commission on Human and Peoples’ Rights provides for principles and guidelines on the right to a fair hearing which include inter alia an entitlement to an appeal to a higher judicial body’.55 Although the Court referenced the Commission, it would appear, on balance, that the reference was in fact intended to be to the African Charter. 3.3 The Protocol to the African Charter on the Rights of Women in Africa There has also been some reference, in Ugandan jurisprudence, to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Women’s Rights Protocol).56 An early instance of this was in the 2003 Constitutional Court decision in Uganda Association of Women Lawyers and Others v Attorney General.57 In that case, Justice Mpagi-Bahigeine was of the view that the 1995 Constitution was ‘the most liberal document in the area of women’s rights than any other Constitution South of the Sahara’ and that it was ‘fully in consonance’ with international and regional treaties relating to women’s rights, including the Women’s Rights Protocol.58 According to her, the remaining challenge was its implementation, which ‘ha[d] not matched its spirit’.59 In the Mulago case,60 the High Court, in addition to findings based on Ugandan law, also found that the actions and omissions of the respondents constituted a violation of articles 2(a) and (b) of the Women’s Rights Protocol, which, according to the Court, ‘require[d] state parties to take appropriate measures to provide adequate, affordable and accessible health services, including information, education and communication programs to women especially those in rural areas; establish and strengthen existing pre-natal and post-natal health and nutritional services for women during pregnancy and while they are breast-feeding’.61 This holding is particularly significant, in so far as the Judge seems to have enforced the Protocol in its own right, 54 55 56 57 58 59 60 61 Court of Appeal Civil Application No.16 of 2016, arising from Civil Appeal No.130 of 2015. At 12. It is noteworthy that the Maputo Protocol constitutes a very rare instance in which Uganda has entered a reservation to an international treaty. Uganda entered reservations to article 14(1)(a) and 2(c), regarding the right to abortion in certain circumstances – see DA Kabagambe ‘The impact of the African Charter and the Maputo Protocol in Uganda’ in VO Ayeni (ed) (2016) The impact of the African Charter and the Maputo Protocol in selected African states 265. Constitutional Petition 2 of 2003. At 45. As above. n 50. At 56.