By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya)*
The Corona Virus Disease Pandemic (COVID-19) has exposed and brought to the attention of the whole world just how important health and well-being of the population is. Indeed, the fact that COVID-19 has affected all sectors of the global economy is evidence enough that human health and well-being form the backbone of the global economy. It has become clear that no matter how much governments invest in other areas of the economy, if the health sector is ailing, then all the other efforts come to naught. While Kenya has been investing and making efforts towards guaranteeing the realization of the right to health care and well-being for all, there are still a lot of challenges facing the health sector in guaranteeing the right to health as provided for in the Constitution, the health Act, 2017 and other relevant laws and policies.
Article 2 (5) and (6) of the Constitution of Kenya makes any treaty or convention ratified by Kenya part of the laws applicable to Kenya. Thus, in addition to the domestic legal instruments on right to health to health, the international legal framework on right to health is also applicable in Kenya in so far as the same have been ratified accordingly. On its part, the Constitution of Kenya 2010 has numerous provisions that capture not only the various elements of the right to health/health care services but also guarantees this right for all groups of persons. The Constitution guarantees that ‘every person has the right— to the highest attainable standard of health, which includes the right to health care services, including reproductive health care. Article 43(2) thereof also provides that a person shall not be denied emergency medical treatment.
The state of health is closely related to the state of the environment and as such, Article 42 of the Constitution guarantees that ‘every person has the right to a clean and healthy environment, which includes the right-to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and to have obligations relating to the environment fulfilled under Article 70. This between the right to health and right to clean environment has been affirmed in various courts, locally and internationally. In the case of Peter K. Waweru vs R, the High Court of Kenya affirmed that indeed, the right to life and right to clean and healthy environment are connected, in the following words:
“it is quite evident from perusing the most important international instruments on the environment that the word life and the environment are inseparable and the word “life” means much more than keeping body and soul together.” The UN Conference on the Human Environment 1972, that is the Seminal Stockholm Declaration noted that the environment was “essential to … the enjoyment of basic human rights – even the right to life itself.” Principle 1 asserts that: “Man has the fundamental right to freedom, equality and adequate conditions of life; in an environment of a quality that permits a life of dignity and well-being.”
In Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR46, the High Court of Kenya stated as follows:
In addition to the above, one of the issues implicated in this Petition is what is now generally recognized minimum requirements for existence of environmental democracy, namely, “the tripartite of the so-called access rights in environmental matters, namely, (a) access to information, (b) participation in decision-making, and (c) access to justice.” These three access rights have the common denominator that they empower individuals to have a meaningful voice in decisions that affect them and their development. The Constitution of Kenya and Environmental Law recognizes these three access rights… [which] are also intertwined in that achievement and application of each impact on realization of the others. For instance, access to information ensures that all persons who choose to participate in environmental decision-making are equipped with the necessary, or at least, basic facts about quality of their environment and their legitimate expectation on the same. Thus, violation of rights to a clean and healthy environment can easily lead to the violation of other rights in the Bill of Rights such as the right to life. …… .
The Health Act, 2017 was enacted to establish a unified health system, to coordinate the interrelationship between the national government and county government health systems, to provide for regulation of health care service and health care service providers, health products and health technologies and for connected purposes. The Act establishes a national health system which encompasses public and private institutions and providers of health services at the national and county levels and facilitate in a progressive and equitable manner, the highest attainable standard of health services; protect, respect, promote and fulfill the health rights of all persons in Kenya to the progressive realization of their right to the highest attainable standard of health, including reproductive health care and the right to emergency medical treatment. The Act lays the framework to protect, respect, promote and fulfill the rights of children to basic nutrition and health care services contemplated in Articles 43(1) (c) and 53(1) (c) of the Constitution and the rights of vulnerable groups as defined in Article 21 of the Constitution.
The Health Act, 2017 imposes duty on the State to develop policies, laws and other measures necessary to protect, promote, improve and maintain the health and well-being of every person; ensuring the prioritization and adequate investment in research for health to promote technology and innovation in health care delivery; ensuring the realization of the health related rights and interests of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalized communities and members of particular ethnic, religious or cultural communities; ensuring the provision of a health service package at all levels of the health care system, which shall include services addressing promotion, prevention, curative, palliative and rehabilitation, as well as physical and financial access to health care; and ensuring adequate investment in research for health to promote technology and innovation in health care delivery.
The Health Act also guarantees that every person has the right to the highest attainable standard of health which shall include progressive access for provision of promotive, preventive, curative, palliative and rehabilitative services. In addition, every person shall have the right to be treated with dignity, respect and have their privacy respected in accordance with the Constitution and this Act. The other relevant national legal instruments include: Public Health Act Cap 242; Public Health Officers (Training Registration and Licensing) Act of 2013; Kenya Health Sector Referral Implementation Guidelines 2014; Kenya Health Sector Referral Strategy 2014-2018; Kenya Health Policy 2012-2030; and Kenya National Patients’ Right Charter 2013.
While Kenya’s healthcare system is made up of several systems: public, private and faith-based or NGO, it is estimated that about 48% are public and operate under the Ministry of Health, 41% are in the private sector, 8% are faith-based health services, and 3% are run by NGOs. In a bid to implement Sustainable Development Goal 3 on Good Health and Well-being, the institutional stakeholders working together in Kenya include but are not limited to: Ministry of Health (MOH); Ministry of labour; Government of Kenya (GOK); Council of Governors (COG); Ministry of Education; Elizabeth Glaser Pediatric AIDS Foundation (EGPAF); and National Social Security Fund (NSSF).
*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.
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).
Health Act, No. 21 of 2017, Laws of Kenya.
Kenya Health Policy 2012–2030.
Kiluwa Limited & another v Commissioner of Lands & 3 others [2015] eKLR.
Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR.
Muigua, K., “Reconceptualising the Right to Clean and Healthy Environment in Kenya.” (2015).
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.
Preamble, Constitution of the World Health Organization, Basic Documents, Forty-fifth edition, Supplement, October 2006, pp.1-18.
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.
WHO, ‘Sustainable Development Goal 3: Health,’ Available at: https://www.who.int/health-topics/sustainable-development-goals#tab=tab_1 (accessed 23/11/2021).