By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya)*
The UN Committee on Economic, Social and Cultural Rights CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health affirms that the realization of the right to health may be pursued through numerous, complementary approaches, such as the formulation of health policies, or the implementation of health programmes developed by the World Health Organization (WHO), or the adoption of specific legal instruments. This is an outlines of some recommendations that can help Kenya get closer to ensuring that all its citizens enjoy healthy lives and general well-being.
Addressing the Socioeconomic Factors that Affect Right to Health in Kenya
Given that the health status of any population is not independent of the socioeconomic status of the group of people in question. Studies, although some contentious, have established a relation between health and other factors such as poverty, income and education, among others. It is however acknowledged that these factors do not work in isolation even in their influence on health-genetics also may play a role in an individual’s vulnerability or resilience to socioeconomic adversity. There is a need for the Government to continually address abject poverty that afflicts huge parts of the Kenyan population as children growing up in socioeconomically disadvantaged neighborhoods face greater direct physical challenges to health status and health-promoting behaviours; they also often experience emotional and psychological stressors, such as family conflict and instability arising from chronically inadequate resources. The realization of these socio-economic factors is also closely related to the realization of the right to dignity as guaranteed under Article 28 of the Constitution which provides that; “Every person has an inherent dignity and the right to have that dignity respected and protected.
Multisectoral Approach and Collaboration among Different Stakeholders
While continued investment on improving the health sector in the country is a commendable move, ‘in order to achieve equity in health and access to care, such efforts must be paralleled by multisectoral approaches to address all key drivers of inequity: persistent poverty, disparities in living standards and educational achievement, as well as regional differences in availability and accessibility of care’. Under the current Constitution of Kenya, primary health care provision is a shared responsibility between the national and county governments. The county governors ought to prioritize delivery of a better healthcare system to citizens through a deliberate cohesive approach to Universal Healthcare (UHC) between the central government and the counties in order to achieve desired outputs within a short time. The collaboration should however go beyond provision of healthcare services to tackling the challenges that hinder enjoyment of the right to heath care by all, such as persistent poverty, disparities in living standards and educational achievement, as well as regional differences in availability and accessibility of care’. There must be better coordination between the government, private and faith or NGO institutions especially in relation to specialist care and other empowerment programmes.
Strict Regulation of Private Health Care Providers
Due to socio-economic inequalities, the private sector primarily serves wealthier individuals, whereas those from poorer households more commonly rely on public care providers or use lower standard, often unlicensed, private care facilities. Reports show there are many health facilities that are not registered or licensed and were therefore operating illegally. It also follows that a huge number of the poor sections of the general population has either suffered loss or obtained substandard medical attention. There is a need for the relevant Regulatory boards such as the Kenya Medical Practitioners and Dentists Board, the Nursing Council, the Clinical Officers Council, Laboratory Board, Radiation Board and the Pharmacy and Poisons Board to crack the whip and weed out all these illegal facilities in a bid to protect the health and well-being of the Kenyan populace.
Affordable and Sustainable Health Insurance Cover in Kenya
COVID-19 disease pandemic has exposed the challenges of health care financing in the country, especially with the National Health Insurance Fund (NHIF) declining to fund treatment for its members who contract the disease, with the exception of civil servants, police and prisons service. Notably, even the private insurers declined to cover the cost of treating COVID-19 cases thus complicating the problem further. While the NHIF has been expanding in coverage areas and the target population, the failure or inability to cover COVID-19 cases has demonstrated all the more the urgent need for the Universal Health Coverage (UHC) for all. Recent studies have concluded that ‘Through its focus on increasing affordability of care for all Kenyans, the newly launched universal health coverage scheme represents a crucial step towards reducing disparities in health care utilization.’
There is a need for financial investment and political goodwill towards ensuring that the UHC is realised for all Kenyans to benefit, both rich and poor. UHC might be more stable than the employment based health financing as a source of health revenue, because employment based health financing is unstable, fragmented, and inequitable, particularly during economic crises as evidenced during the covid-19 pandemic where many people lost access to employment linked healthcare because of a job loss in the family. Medical care should however also be made generally affordable. In Pharmaceutical Society of South Africa v. Tshabalala-Msimang, South African High Court held that ‘access to health care services required services to be both physically accessible and affordable, and acknowledged that prohibitive pricing of medicines may amount to a denial of access.
Improved Working Conditions for Health workers in Kenya
Job satisfaction and working atmosphere are considered to be important for optimal health care delivery. In the face of frequent strikes by health workers in Kenya, there is a need for the national government and the county governments to work closely with all the stakeholders and health workers’ unions’ leaders to address the challenges of limited career opportunities, insufficient workforce, and low remuneration in order to curb the risk of the health care staff migrating to other countries as well as also within countries such as from public hospitals to private ones. This should be done as part of ensuring that Kenyans are guaranteed access to health care services and wellbeing. Even as the national and county governments continually invest in health infrastructure and facilities under the UHC programmes, there is a need for the investment in infrastructure to be done simultaneously with that in human capital, competent and well-trained personnel to handle the equipment and patients in these facilities. Even as the Government of the Republic of Kenya continue to hire foreign doctors and in particular doctors from Cuba to work in Kenyan public medical facilities, there is need for capacity building within the local medical health workers.
Investment in Advanced medical technologies: The Viability of Medical Tourism
A working health system is not only capable of ensuring that the citizens enjoy healthy lives and well-being, but is also capable of earning some extra income for the government through what is now commonly known as ‘medical tourism’, defined as the travel of people to a place other than where they normally reside for the purpose of obtaining medical treatment in that country. India has emerged as one of the countries that have heavily invested in medical tourism. Medical tourism is a multi-billion dollar industry that has been heavily promoted by governments and the medical and tourism industries for the potential mutual benefits. Medical tourism, however, should not be pursued at the expense of the poor in the country: The Government should ensure that the general populace in the country can access health care services before it seeks to extend the same to the foreigners. Kenya should consider going the Cuban way where, Cuba, which has been a pioneer in medical tourism for almost four decades, has hospitals for Cuban residents and others for foreigners and diplomats. Both kinds are run by the government and Cubans receive free healthcare for life while tourists have to pay for it.
Conclusion
The right to health is not an isolated right, it is not only forms the basis for the realization and enjoyment of other rights but it also requires the implementation and protection of other human rights for its full enjoyment. While Kenya has made commendable steps towards ensuring that its citizens enjoy healthy lives and general well-being, there is still a lot that requires to be done. This calls for multisectoral approach and cooperation between stakeholders to ensure that the same is realized. Any nation that seeks to develop must first invest in the health of its people. A healthy population is a wealthy population. Ensuring Healthy Lives and Well-being for all Kenyans is a vital Sustainable Development goal that should be attained at the earliest.
*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Muigua, K., “Ensuring Healthy Lives and Well-being for All Kenyans,” Available at: http://kmco.co.ke/wp-content/uploads/2020/12/Ensuring-Healthy-Lives-and-Wellbeing-for-All-Kenyans-Kariuki-Muigua-December-2020.pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021 and nominated as ADR Practitioner of the Year (Nairobi Legal Awards) 2021.
References
Adler, N.E. and Newman, K., ‘Socioeconomic Disparities in Health: Pathways and Policies’ (2002) 21 Health Affairs 60.
Braveman, P. and Laura Gottlieb, ‘The Social Determinants of Health: It’s Time to Consider the Causes of the Causes’ (2014) 129 Public Health Reports 19.
Craig J and Patterson V, ‘Introduction to the Practice of Telemedicine’ (2005) 11 Journal of Telemedicine and Telecare 3.
Dominguez, E., The Right to Health,’ Icelandic Human Rights Centre, Available at: https://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/substantive-human-rights/the-right-to-health (accessed 23/11/2021).
Dutta, A., T. Maina, M. Ginivan, and S. Koseki. 2018. Kenya Health Financing System Assessment, 2018: Time to Pickthe Best Path.Washington, DC: Palladium, Health Policy Plus, 60.
Goetz K and others, ‘Working Atmosphere and Job Satisfaction of Health Care Staff in Kenya: An Exploratory Study’ (BioMed Research International, 4 October 2015) https://www.hindawi.com/journals/bmri/2015/256205/ (accessed 15 December 2020).
Health Act, No. 21 of 2017, Laws of Kenya.
Hernández Nariño A, ‘Cuban Medical Tourism: Strategies to Make It More Competitive’ (2008). 123 ‘The Health and Wealth of Nations’ (ResearchGate) https://www.researchgate.net/publication/238827665 _The_Health_and_Wealth_of_Nations (accessed 16 December 2020).
Ilinca S and others, ‘Socio-Economic Inequality and Inequity in Use of Health Care Services in Kenya: Evidence from the Fourth Kenya Household Health Expenditure and Utilization Survey’ (2019) 18 International Journal for Equity in Health 196.
Inter Press Service, ‘COVID-19: Lessons from the Losses’ (7 September 2020), Available at: http://www.ipsnews.net/2020/09/covid-19-lessons-losses/ (accessed 15 December 2020).
Kenya Health Policy 2012–2030.
Kiluwa Limited & another v Commissioner of Lands & 3 others [2015] eKLR.
KMPDC, “Report of Technical Working Group to Develop Guidelines and Checklists for Report on the Regulation of Electronic Health Practice in the Country,” Available at:https://kmpdc.go. ke/resources/4.%20Draft%200%20-%20Electronic%20Health%20Regulation.pdf (accessed 23/11/2021).
Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR.
Mohiddin, A. and Temmerman, M., ‘COVID-19 Exposes Weaknesses in Kenya’s Healthcare System. And What Can Be Done’ (The Conversation) http://theconversation.com/covid-19-exposes-weaknesses-in-kenyas-healthcare-system-and-what-can-be-done-143356 (accessed 15 December 2020).
Muigua, K., “Reconceptualising the Right to Clean and Healthy Environment in Kenya.” (2015).
Okungu V, Chuma J and McIntyre D, ‘The Cost of Free Health Care for All Kenyans: Assessing the Financial Sustainability of Contributory and Non-Contributory Financing Mechanisms’ (2017) 16 International Journal for Equity in Health 39.
Omulo C, ‘Kenya: 7,900 Clinics Operating Illegally in Nairobi, Committee Reports’ (allAfrica.com, 11 April 2019) https://allafrica.com/stories/201904110184.html (accessed 15 December 2020).
Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).
Peter K. Waweru v Republic [2006] eKLR.
Pharmaceutical Society of South Africa v. Tshabalala-Msimang 2005 (3) SA 23 8 (SCA) paras 42, 53 , 77.
Preamble, Constitution of the World Health Organization, Basic Documents, Forty-fifth edition, Supplement, October 2006, pp.1-18.
Rangasamy M and others, ‘Role of Telemedicine in Health Care System: A Review’ “Role of telemedicine in health care system: a review,” Int J Recent Adv Pharma Res 2 (2011): 1-10
Samuel Nduati & 3 others v Cabinet Secretary Ministry of Health & 9 others [2018] eKLR, Petition 42 & 46 of 2018 (Consolidated).
Seewon R., ‘Telemedicine: Opportunities and Developments in Member States: Report on the Second Global Survey on EHealth 2009 (Global Observatory for EHealth Series, Volume 2)’ (2012) 18 Healthcare Informatics Research 153.
Shehla Zia v. WAPDA, PLD 1994 SC 693 Justice SALEEM AKHTAR (Supreme Court of Pakistan).
Tomaziu-Todosia M, ‘The Importance of Public Health Policies in the Social-Economic Development of Romania’ (2019) 10 Postmodern Openings 162.
Treaty making and Ratification Act, No. 45 of 2012, Laws of Kenya.
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4.
UN Commission on Human Rights, Convention on the Rights of the Child, 7 March 1990, E/CN.4/RES/1990/74.
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).
UN General Assembly, International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights and Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, A/RES/2200.
UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, A/RES/34/180.
Vijayasingham L and others, ‘Employment Based Health Financing Does Not Support Gender Equity in Universal Health Coverage’ (2020) 371 BMJ m3384
Waithaka D and others, ‘Prolonged Health Worker Strikes in Kenya- Perspectives and Experiences of Frontline Health Managers and Local Communities in Kilifi County’ (2020) 19 International Journal for Equity in Health 23.
WHO, ‘Sustainable Development Goal 3: Health,’ Available at: https://www.who.int/health-topics/sustainable-development-goals#tab=tab_1 (accessed 23/11/2021).
Zalo, M., “The Emerging Practice of Telemedicine and the Law: Kenya’s Stance,” Available at: https://cipit.strathmore.edu/the-emerging-practice-of-telemedicine-and-the-law-kenyas-stance/ 1 (accessed 23/11/2021).
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