The Constitution of Kenya, 2010 is celebrated as a trend setting and progressive document that protects the right to health generously. Article 43 (1) (a) recognizes the right to the highest attainable standard of health including reproductive health. Before 2010, health, and other socio-economic rights were not recognized as justiciable rights and litigators were compelled to creatively read the right to life as including the right to health.
Article 21(2) places an obligation on the State to take legislative and policy measures to achieve the Article 43 rights progressively. Whilst failure to achieve these rights immediately is not a violation, as was emphasised by the court in Luco Njagi v Ministry of Health, 2015, this does not necessarily mean that inactivity is permitted; steps towards realisation should be made immediately. Indeed, Article 20(5) provides that if the State claims it does not have the resources to implement a right, it must prove it does not have the resources. Priority must be given to ensuring the widest possible enjoyment of the right, including taking into account the vulnerability of particular groups or individuals.
The obligation of the State in giving life to rights is spelled out as the duty to observe, respect, protect, promote and fulfil the rights. The State must not positively hinder the right. It must, by the use of law, regulation and enforcement prevent non-state bodies from violating the rights. It must also educate and in other ways encourage the respect for the right and when necessary it must take positive steps to ensure it is achieved.
National legislative and policy Framework
Since 2014 there have been efforts to consolidate the laws governing health in Kenya culminating in the enactment of the Health Act, 2017. The Act recognizes health as a right including: ‘progressive access for provision of promotive, preventive, curative and rehabilitative services.’ It guarantees reproductive health and rights, emergency treatment, health information, consent and confidentiality, and information that ought to be disseminated by government.
There are a number of positives in this Act. First is its recognition of health as a right. Second it recognizes that health is a devolved function. Third, the Act takes into account that the health care rights of children are an immediate (not progressive) obligation, and requires national and county governments to provide free, compulsory vaccination for under-fives. Finally, it recognises the reproductive health and rights of women, obliging national and county governments to provide free maternity care.
There are numerous other relevant laws including the Public Health Act, the Protection against Domestic Violence Act, Sexual Offences Act, the Pharmacies and Poisons Board Act, and the Kenya Medical Practitioners and Dentists Act that regulate different sub-themes of health. There are also various policies that govern different facets of the right to health, but here we focus on the Kenya Health Policy, 2014-2030 which provides strategic guidance on how to improve the overall status of health in Kenya.
Both the Acts and the policy try to use a ‘rights based approach’ to the progressive realization of the right to health – meaning that rights should be a framework for all efforts to provide better health and health services. But to some extent this is lip service because of lack of detail about how this will inform the realization of health.
Health in the courts
Post 2010, several court cases have challenged the scope and boundaries in health realization. PAO and others v Attorney General was the first case on the right to health. The court held that the right took precedence over intellectual property rights, and that the law that restricted access to generic (and therefore cheaper) drugs, especially for HIV, went against the Constitution.
MA and another v The Attorney General interrogated detention of women for failure to pay for maternity services, following a presidential directive that was issued in June 2013 declaring maternity services free, while W J & Another v Astarikoh Henry Amkoah found that sexual violence was a violation of the right to health because of the significant physical and psychological consequences, and awarded compensation to affected school pupils.
The case of Luco Njagi v Ministry of Health however, illustrated the Court’s unwillingness to interfere in how the State allocates its resources. The court found that the State had shown that it did not have the resources available to ensure access for kidney dialysis treatment for the petitioners, and that the measures taken were reasonable in the circumstances. The court expressed the difficulty it would face if asked, for example, to direct how resources should be allocated as between kidney and cancer patients. As evidenced in Kenya Legal and Ethical Network on HIV & AIDS (KELIN v Cabinet Secretary Ministry of Health), there are also instances where the courts have cited separation of powers and intimated difficulties in directing the state to develop policies, especially if the parties supply no evidence of what policies might be suitable. Notably though, in Daniel Ng’etich v Attorney General the court declared it was unconstitutional to imprison TB patients who defaulted in taking their medication. The court further proceeded to direct that the State, in the absence of an isolation policy must develop one. This case shows the value of court orders compelling government departments to take action and report back to court. The Attorney General did in fact prepare an isolation policy and report back to court.
Health as a Devolved Function
Under the fourth schedule of the Constitution, one of the functions devolved to counties is health. Policy making and management of national health referral facilities fall within the ambit of the national government while county governments are responsible for health facilities and pharmacies, ambulance services, promotion of primary healthcare, licensing, cemeteries, veterinary services and refuse removal.
Disappointingly, while section 15(1) (c) of the Health Act elaborates the obligations of the National Government to ensure the implementation of the Bill of Rights on the right to health, reproductive health and emergency treatment, it says nothing about this obligation for the County Governments. The Constitution imposes duties to achieve the right to health on ‘the State’ and the counties are just as much part of the state as the national government.
In reliance of Article 185 of the Constitution, counties such as Laikipia and Marsabit have enacted their own stand-alone health laws while a number of counties including Makueni, Kilifi and Kakamega have introduced Maternal, Newborn and Child Health Acts.
Universal Health Coverage (UHC) can be defined as ‘access to key promotive, preventive, curative and rehabilitative health interventions for all at an affordable cost, thereby achieving equity in access’. As the State grapples with how to achieve UHC (with pilot implementation starting in Kisumu, Machakos, Isiolo and Nyeri) Makueni County remains the leading example of a devolved unit that has achieved this. Makueni, with about 870,000 people has, since October 2014, been offering its residents free healthcare across public health facilities. The county builds on the National Health Insurance Fund and the national government’s free primary healthcare, and residents are required to pay KShs500 per household annually to access primary healthcare free at point of service.
From the 2017 strikes by medical staff, it became clear that there are mis-understandings on the role of devolution in the health sector both by the governments and the health sector. The people too, armed with minimal information, do not understand and thus do not demand their rights.
Other challenges to devolution include significant capacity gaps within county political and management structures. When resources were devolved, few counties possessed the administrative capability to absorb the available funding or plan for its use.
One of the main opportunities provided by devolution is the ability to localize and address health issues in a meaningful way. Health is the most expensive commitment counties have, and on average they have been spending about 25% of their budgets on health. This is a significant contribution to Kenya achieving 15% of its overall budget on health (as the Abuja Declaration commits it to). (We must not forget only about 20% of the entire national budget is allocated to counties.)
In recent years, the judiciary has demonstrated its willingness to give content to the right to health, and has given greater understanding to how this right can be fulfilled in Kenya. However, this has not always translated to meaningful realization of the right through policy and service delivery. However, one cannot understand what health means in a vacuum to what devolution and governance is.
According to the Global Corruption Report (2006), Kenya’s health care system lacked accountability mechanisms, allowing abuse and misappropriation of funds. Common forms of irregularity in public health facilities include unjustified absence of staff, procurement mismanagement, theft of drugs or equipment, unauthorized use of equipment, facilities or supplies and unauthorized billing of patients. How do we define and quantify progressive realization? Can the courts take into account corruption when coming to a conclusion that the State has done enough?
Kenya has made great strides in giving content to the right to health post-2010. Significant work has gone towards the development of a legislative and policy framework that may be the basis on which a rights discourse on health can be framed. However, as we continue the discourse we must appreciate that we are at a stage where formulating an understanding on how and who can be held accountable is vital for building a State that respects, promotes, protects and fulfils health related rights.