Every Kenyan, has a right to quality healthcare
Sustainable Development Goal 3 offers a motivational framework for actualising the right to health by 2030.
April is a month of health dialogue and an opportunity to interrogate what Article 43 (1-a) of the Kenyan Constitution provides for and intends. It states, “Every person has the right to the highest attainable standard of health, which includes the right to healthcare services, including reproductive health care.”
Globally, Sustainable Development Goal 3 offers a motivational framework for actualising the right to health by 2030. Specifically, target 3.3 anticipates eradicating infectious diseases such as tuberculosis, AIDS, malaria, and neglected tropical diseases besides water-borne ones. Target 3.4 foresees a reduction of mortality from non-communicable diseases by one-third, besides promoting mental health. Target 3.5 seeks mechanisms that can prevent and treat substance abuse. Target 3.7 envisages access to sexual and reproductive care, family planning, and education. Target 3.8 envisions universal health coverage. Target 3.9 expects a world with reduced deaths from hazardous chemicals and pollution. Target 3. B commits to supporting research, development, and universal access to vaccines and medicines, while target 3. C purposes increasing health financing and supporting the health workforce in developing countries.
Why April? The prevention of blindness week is observed in the first week of April. It allows people, nations, and governments to soul search on procured interventions to prevent visual impairment. National Eye Health Strategic Plan for 2020-2025 shows 15 percent of Kenyans need quality eye care services - April 2 is the day the world remembers autism while April 7 is World Health Day, celebrated since 1950, as a reminder of when and why the World Health Organisation was established. April 10 is World Homeopathy Day, where the growth of different treatment approaches is acknowledged and promoted. World Haemophilia Day is celebrated on 17 April to raise awareness about this disease and other inherited bleeding disorders, while April 19 is when the world celebrates liver day to alert and caution global populations of illnesses related to the liver. Malaria is a deadly tropical disease that we are reminded of on April 25 yearly.
Kenya is faced with many health challenges, especially among the poor. It is worse for street communities, who are primarily unrepresented and unplanned for in most government service statistics. The law behoves the state to ensure that right to health is realised. Article 43 (3) directs the state to provide appropriate social security to persons unable to support themselves and their dependents. The Kenya Health Policy, running from 2014 to 2030, has made provisions for indigent persons in our society.
On objective 1, about eliminating contagious conditions, paragraph ii seeks to put in place interventions directly addressing the elderly and the vulnerable, marginalised, and indigent populations affected by communicable conditions. This is repeated in objective 2, which aims to halt and reverse the rising burden of non-communicable conditions and mental disorders in paragraph iii. Further, objective 3 emphasises the same ambition in an endeavour to reduce the burden of violence and injuries: and objective 4 prioritises health financing by asserting the state's commitment to progressively work towards the elimination of payment at the point of use of health services, especially by the marginalised and indigent populations, through social health insurance and government subsidies.
It is reasonable to believe that the Kenyan government has committed to reducing the burden of diseases for all. However, the right to health is not abstract but tied to the threshold which qualifies the right to inherent dignity in Article 28. It requires the state to follow several Constitutional provisions to ensure that everyone, mainly the under-resourced and hard-to-reach, is included. Article 20 (1) binds all state organs and all persons. Sub-Article 2 allows everyone to enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom. This is possible if the provisions of Sub-Article 2 are read together with provisions of Article 21 (1), (21) (2), and 21 (3), which respectively state as follows: it is a fundamental duty of the state and every state organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. At Sub-Article 2 says the state shall take legislative, policy, and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43: and Sub-Article 3 seeks from all State organs and all public officers of the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities.
Let the month of April be the turning point that resonates with Justice Lenaola’s opinion in paragraph 21 of his judgment in petition 133 of 2013, in which he said, "let this judgment, therefore, be a wakeup call to the Respondents that Article 43 of the Constitution does not sit there like a defected football player who has lost a match. It is alive and has started the run towards full realisation instead of a slow shuffle in the name of progressive realisation.”
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]
