The right to adequate food in Uganda

Unveiling the barriers to realization of the right to adequate food in Uganda.

Nakalema Stella Maris*

Abstract

The right to adequate food is a fundamental human right that lies at the core of the human existence. It is an interdependent and interconnected right upon which other rights are premised to be realized. However, there are thousands of people who continue to die due to starvation, poor diets, toxic food substances. There is a high prevalence of food insecurity in many countries especially low developed states which status quo continues to frustrate people’s ability to realize their right to adequate food.

1. Introduction

Uganda suffers from food insecurity which is the attributed cause of death of many people. In 2022, approximately 41% of the population in Karamoja was facing high levels of food insecurity.[1] Food security is defined by the Food and Agriculture Organization as “a situation that exists when people lack secure access to sufficient amounts of safe and nutritious food for normal growth and development and an active and healthy life.”[2]

a) International legal framework

The right to adequate food is recognized in numerous international instruments like; Article 11 of the International Covenant on Economic, Social and Cultural Rights, ICESCR, Article 12 of the Convention on the Elimination of all forms of Discrimination Against Women, CEDAW, Article 24(2)(c) and 27 of the Convention on the Rights of the Child, CRC, Article 25 of the Universal Declaration of Human Rights, UDHR. Goal 2 of the Sustainable Development Goals also advocates for ending hunger, achieving food security, improved nutrition and promoting sustainable agriculture.

b) National legal framework

The right to food which encompasses the right to food security, freedom from starvation is provided for Objective XIV(ii)(access to clean and safe water and food security), Objective XXII(food security and nutrition) and Objective XXI(clean and safe water), Food and National Policy. Although of essence, the right to food is not expressly provided for in Chapter 4 of the Constitution, its justiciable and can be enforced in the courts of law pursuant Article 8A and the case of CEHURD & Others v Attorney General[3].

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2. The normative content of the right to adequate food

The right to adequate food can only be effectively realized when every human being; man, woman and child alone or in community with others has the economic and physical access at all times to the adequate food.[4] In ICESCR General Comment No 12 on the right to adequate food, the Committee states that the right to adequate food obliges state parties to ensure; adequacy and sustainability of food,[5] and that dietary needs of people are met(states should ensure that the foods consumed contain the nutrients required for physical and mental growth, development and maintenance).[6] There is also an obligation to ensure that adequate food is available,[7] culturally/consumer acceptable,[8] accessible(food should be physically and economically accessible to all vulnerable people)[9] and free from all forms of adverse substances(food must be free from contamination/ adulteration and toxins).[10]

3. State obligations in relation to the right to adequate food

The states have an obligation to progressively realize the right to adequate food under Article 2 of the ICESCR(and ICESCR General Comment No. 3).[11] These obligations are threefold i.e., to protect, respect and fulfill. Obligation to respect mandates state parties not to take any measures that frustrate people’s access to adequate food. Obligation to protect requires states to take steps to ensure that enterprises or individuals do not deprive individuals of their access to adequate food. Obligation to fulfil(facilitate) mandates states to proactively engage in activities intended to strengthen people’s access to food security and the obligation to fulfil(provide) obliges states to provide adequate food directly to individuals or groups of people who by reasons beyond their control are unable to enjoy the right to adequate food by means at their disposal.[12] 

The states are obliged under international law to ensure that the right to adequate food is not violated in any ways.[13] In Stanev v Bulgaria,[14] the European Court of Human Rights found that the detention of Stanev in a psychiatric institution with unsanitary conditions and insufficient and poor-quality food violated his right to food and freedom from inhuman treatment.

4. Barriers to the realization of the right to adequate food in Uganda

a)  Monopoly of Genetically Modified Organisms, GMO corporations in the food industry.

The World Health Organization defines GMO as “organisms (i.e. plants, animals or microorganisms) in which the genetic material(DNA) has been altered in a way that does not occur naturally by mating and or natural recombination.”[15] There are numerous international corporations producing and supplying GMO seeds to people all over the world for example; Monsanto(owned by Bayer), Corteva(formerly Dupont), Dow Chemical Company and Syngenta, etc. which have manufactured GMO crops like soybeans, maize, cotton and canola, etc. Critics state that GMO manufacturing corporations are not interested in ensuring food security all over the world but creating a monopoly over the food production and supply.[16] In essence, GMO is a profit-making enterprise which has  that not only creates adverse effects to people’s health by causing mortality, tumor or cancer, significant low fertility, decreased learning and reaction abilities, and some organ abnormalities.[17]

In the case of Kenya Small Scale Farmers Forum v Cabinet Secretary Ministry of Education, Science and Technology & 5 others,[18] the petitioners challenged government’s intention to deregulate and remove the ban on GMOs. However, the court dismissed the suit as the petitioners where merely apprehensive, relying on media statements of the then Deputy President William Ruto on his intention to life the ban on GMO and their application was premature.

b)  Use of aflatoxin in cultivation of food crops.

Aflatoxins are defined as “harmful substances made by certain types of molds that is often found on poorly stored grains and nuts.”[19] Uganda’s food markets are suffering from aflatoxin contamination of agricultural produce especially cereal and legume-based food crops like maize, groundnuts, etc.  These aflatoxins are highly detrimental to human health upon consumption as they cause; nausea, vomiting, abdominal pains, convulsions, acute liver injury, cirrhosis and cancers.[20] The presence of aflatoxins in food consumed by the people of Uganda violates their rights to nutritious food, right to health and right to life. This status quo is evidenced by the fact that in May 2023, the South Sudan Bureau of Standards impounded over 90 Uganda trucks loaded with maize tests after a lab test found that they were contaminated with dangerous aflatoxin chemicals.[21] Similarly in March 2021, the Kenyan government banned Uganda’s maize exports on grounds that they are contaminated with aflatoxins which cause cancer.[22] 

c) Challenge of Intellectual property rights

The genetic modification of different indigenous seeds has resulted into the creation of intellectual property rights in the plant seeds which causes food insecurity. The reliance on GMO crops in place of indigenous crops has increased with numerous crops being manufactured like soybeans, cotton, corn.  In Bowman vs Monsanto,[23] the court stated that GMO seeds are intellectual property and therefore, the replanting of harvested GMO seeds amounts to copying and a violation of the intellectual property rights of the manufacturer. However, criticism is underway for this ruling’s negative implication on the human right to food as it upholds the intellectual property rights of GMO corporations to the detriment of the food security in the world yet in Patricia Asero Ochieng &others v The Republic of Kenya,[24] the court stated that intellectual property rights should not compromise the human rights in the following words; “The right to life, dignity, and health of the petitioners must take precedence over the intellectual property rights of patent holders.”[25]

d) State laxity and lack of cooperation

It is important to emphasize the fact that Uganda does not have an express provision in the Chapter 4 of the Constitution providing for the right to adequate food. To make matters worse, the draft Food and Nutrition Bill has remained a bill without the force of law since 2009 and is limited state proactivity in carrying out of its obligations of respect, protect and fulfil.

© FAO

5. Comparative analysis of other states’ jurisprudence on the right to adequate food

a) The Republic of Kenya

The 2010 Amendment of the Kenya Constitution explicitly provides for the right to adequate food in Article 43(1)(c) which states that “Every person has the right to be free from hunger, and to have adequate food of acceptable quality.” The Kenyan state is actively involved in the realization of the right to adequate food. The courts have also played a crucial role in the progressive realization of this rights as in case of Consumer Confederation of Kenya (COFEK) v Attorney General & others,[26] where the High Court stated that Kenyan courts have the jurisdiction to adjudicate over matters involving the realization of social and economic rights including the right to food and freedom from hunger which was threatened by the government’s failure to regulate the prices of oil and gas which caused the cost of goods and services including food to increase.  Furthermore, the African Commission in Centre for Minority Rights Development & Minority Rights Group International v Kenya,[27] held that by evicting the Endorois people from their ancestral homes in the Mau Forest, Kenya has violated their rights to life and food among other rights.

b) Other countries

South African courts endeavor to uphold the right to adequate food as seen in the case of Wary Holdings(Pty) Ltd v Stalwo(Pty) Ltd & Another,[28] where the Constitutional court held that excessive fragmentation of agricultural land may adversely affect the availability of food which threatens food security. On the other hand, in India, in the case of People’s Union for Civil Liberties v Union of India & Others,[29] the court held that the right to life provided for in Article 21 of the Indian Constitution encompasses the right to food and therefore the government violated people’s human rights when it failed to provide them with nutritious food which caused many people to die of starvation.[30]

6. Exploring the way forward

Uganda should enact the Food and Nutrition Bill, 2009 which provides a clear legal framework on the right to adequate food.[31]

The state and courts of judicature should adopt a human rights-based approach to ensure the realization of the right to adequate food. This will allow for more progressive decisions as compared to those issued out in the case of Center for Food and Adequate Living Rights (CEFROHT) v Attorney General & Another,[32] where the applicant alleged that the respondents’ failure to restrict marketing of unhealthy foods violated the human rights  to adequate food and health under the Constitution and the court dismissed the application on grounds that the applicant should have first taken the matter for adjudication before the Tribunal established under the Communications Act.

7. Conclusion

In conclusion, Uganda has an obligation to progressively realize the right to adequate food which not only entails the duty to provide, protect and respect. In particular, the state is mandated to play a fundamental role in ensuring that its people consume nutritious food as executed by other states which prohibit the importation and consumption of GMOs and contaminated foodstuffs. Uganda must therefore ensure that it takes positive steps to curtail the emerging food insecurity in order to protect the fundamental human rights of individuals which are interconnected with the right to food like right to life, health among others.

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8. References

* Nakalema Stella Maris is a fourth-year student offering a Bachelor of Laws Degree at Makerere University, School of law. Contact at nakalemastellamarris@gmail.com 

[1] Peter Sserugo, ‘Hunger Killed 2,000 people in Karamoja last year-report’ (Tuesday May 23, 2023) <https://www.monitor.co.ug/uganda/news/national/hunger-killed-2-000-people-in-karamoja-last-year-report-4243758 >

[2] Dilley M. and Boudreau T.E. Coming to terms with vulnerability: a critique of the food security definition. Food Policy, Volume 26, Number 3, June 2001 , pp. 229-247(19)

[3] CEHURD & 3 Others v Attorney General as in Supreme Court Appeal No.1, 2013 out of Constitutional Petition No.16 of 2011 [2012]; UGCC 4, 2012) (Uganda Supreme Court, 2012)

[4] General Comment No. 12, Paragraph 6

[5] General Comment No. 12, Paragraph 7

[6] General Comment No. 12, Paragraph 9

[7] General Comment No. 12, Paragraph 12

[8] General Comment No. 12, Paragraph 11

[9] General Comment No. 12, Paragraph 13

[10] General Comment No. 12, Paragraph 10

[11] ICESCR General Comment No. 12: Paragraph 14

[12] General Comment No. 12, Paragraph 15

[13] General Comment No. 12, Paragraph 17-20

[14] [GC], No 36760/06, [2012] 1 ECHR 3

[15] World Health Organization, ‘Food, genetically modified’ (1 May 2014) <https://www.who.int/news-room/questions-and-answers/item/food-genetically-modified>

[16]Food & Water Watch, ‘GMOs Plant Seeds for Corporate Control’ (March 2 2021) <https://www.foodandwaaterwatch.org/2021/03/02/gmos-plant-seeds-corporate-control/ >

[17] Shen, C., Yin, XC., Jiao, BY. et al. Evaluation of adverse effects/events of genetically modified food consumption: a systematic review of animal and human studies. Environ Sci Eur 34, 8 (2022). https://doi.org/10.1186/s12302-021-00578-9 

[18] Kenya Small Scale Farmers Forum v Cabinet Secretary Ministry of Education, Science and Technology & 5 others [2015] eKLR.

[19] National Cancer Institute  Dictionaries <https://www.cancer.gov/publications/dictionaries/cancer-terms/def/aflatoxin>

[20] Dhakal A, Hashmi MF, Sbar E. Aflatoxin Toxicity. [updated 2023 Feb 19]. In: StatPearls[Internet]. Treasure Island (FL): StatPearls Publishing; 2024 Jan-. Available from: https://www.ncbi.nlm.nih.gov/books/NBK557781/# 

[21] Christopher Kiiza, Business Times Uganda, (July, 20, 2023) ‘Uganda-South Sudan Trade War: Ugandan Maize Exports Contaminated’ <https://businesstimesug.com/uganda-south-sudan-trade-war-ugandan-maize-exports-contaminated/amp/>

[22] https://observer.ug/news/headlines/79850-east-african-court-validates-kenya-s-defense-in-ugandan-poultry-ban-case 

[23] Bowman v. Monsanto Co., 569 U.S. 278

[24] Patricia Asero Ochieng &others v The Republic of Kenya, Petition 409/2009.

[25] Para 85.

[26] Consumer Confederation of Kenya (COFEK) v Attorney General & others, High Court Petition No. 88 of 2011.

[27] Centre for Minority Rights Development & Minority Rights Group International v Kenya, Communication No. 276/2003.

[28] Wary Holdings(Pty) Ltd v Stalwo(Pty) Ltd & Another 2008(11) BCLR 1123 (CC), para 85.

[29] People’s Union for Civil Liberties v Union of India & Others, (2001) SC 

[30] Lauren Birchfield & Jessica Corsi, Between Starvation and Globalization: Realizing the right to food in India, 31 MICH. J. INT’L L. 691 (2010). Available at: https://repository.law.umich.edu/mjil/vol31/iss4/1

[31]  UHRC Calls for Enactment of the Food and Nutrition Bill. Uganda Radionetwork. https://ugandaradionetwork.net/story/uhrc-calls-for-enactment-of-the-food-and-nutrition-bill?districtId=502. Accessed 19 March 2024.

[32] Center for Food and Adequate Living Rights (CEFROHT) v Attorney General & Another (MISCELLANEOUS CAUSE NO. 436 of 2019 

[33] Dona A, Arvanitoyannis IS. Health risks of genetically modified foods. Crit Rev Food Sci Nutr. 2009 Feb;49(2):164-75. doi: 10.1080/10408390701855993. PMID: 18989835.

[34] Lauren Birchfield & Jessica Corsi, Between Starvation and Globalization: Realizing the right to food in India, 31 MICH. J. INT’L L. 691 (2010). Available at: https://repository.law.umich.edu/mjil/vol31/iss4/1 

[35] Dilley M. and Boudreau T.E. Coming to terms with vulnerability: a critique of the food security definition. Food Policy, Volume 26, Number 3, June 2001 , pp. 229-247(19)

[36] General Comment No. 12: The Right to Adequate Food (Article 11)