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The Enforceability of Health Rights in Kenya: An African Constitutional Evaluation

Document Cited authorities 3 Cited in Related
Vincent
Pages126-149
Published date01 February 2019
Author
DOI10.3366/ajicl.2019.0262
Date01 February 2019
INTRODUCTION

The history of constitution-making in Kenya has been long and difficult. The series of constitutions first introduced in the decade 1950 to 1960 were the result of long and complicated negotiations and reflected the varied interests and concerns of the British government as the colonial power, as well as the racially stratified and ethnically divided society of Kenya.1 The primary purpose of the Lyttleton Constitution (1954)2 and the Lennox-Boyd Constitution (1957)3 was to improve governance and provide for a smooth transition to self-government and independence.4

The 1963 Independence Constitution was the result of a series of three meetings (1960, 1962 and 1963) held in London and which later became known as the Lancaster House Conference. Given Kenya's colonialist background, the agreed upon Constitution primarily focused on and set out in great detail matters concerning citizenship (Chapter One, sections 1 to 13), the composition of a bicameral legislature (Chapter Four, sections 34 to 71) and the political control of the executive (Chapter Five, sections 72 to 90). Provision was also made for the protection of fundamental rights and freedoms in Chapter Two (comprising sections 14 to 30). Yet, in the years that followed, the Constitution was mainly used by the presidents of the ruling party, the Kenya African National Union (KANU), to consolidate and expand their powers.5

By 1983 the Constitution was amended to formalise one-party rule and it was only in 1991 that President Daniel Arap Moi (KANU) officially ended the existence of the de facto one-party state. Efforts to reform the Constitution began shortly thereafter and particularly in the year 2000, with the establishment of the Constitution of Kenya Review Commission (CKRC).6 A series of constitutional drafts were produced during this time; the Zero Draft was followed by the Bomas Draft, which was dismissed by allies of the National Alliance of Kenya (NAK) led by former vice-president and presidential aspirant Kibaki.7 And the subsequent Wako Draft was rejected in a 2005 national referendum by 58 per cent of those voting.8 In early 2008, after the violence that followed the contested presidential elections of 20079 and in terms of a power-sharing agreement between Odinga, the leader of the Liberal Democratic Party (LDP), and Kibaki, a committee of Experts (CoE) was appointed with the task to ‘write a harmonized constitution pulling together elements of the CKRC, Bosmas and Wako drafts’.10 While all the previous constitutions have been marked by sharp disagreement between the various political factions and ethnic groups, Kenyans voted in an overwhelming majority for this new Constitution in the national referendum held on 5 August 2010.11 The Constitution was signed into law on 27 August 2010.12

While the 2010 Kenya Constitution is hailed as being one of the most transformative and progressive constitutions in a modern democracy, Kramon and Posner rightly suggest that the success of this Constitution will largely depend on its ability to effectively deal with the issues that had caused the violence following the 2007 presidential election. This includes the question of the centralisation of national power in the office of the president, the ubiquity of corruption and the impunity that power holders enjoy, the country's deepening cross-regional and cross-generational socio-economic inequality and the politicisation of ethnicity.13 This article focuses on the issue of socio-economic inequality and specifically the provision that is made for health rights in Chapter Two of the Constitution.

First, a brief overview will be provided of the healthcare landscape in Kenya with specific reference to the main achievements and setbacks in the healthcare sector since the country's independence in 1963. The framework provided in the Bill of Rights (Chapter Four) with regard to the right to health, health-related rights and particularly the realisation and enforcement thereof will then be considered. Against this background, a critical and comparative evaluation will follow with the realisation and enforcement of the right to health as articulated in the 2010 Kenya Constitution as the main focal point. The comparative evaluation will ultimately show that the Kenyan Bill of Rights contains pioneering provisions with regard to the realisation of health for Kenyan citizens.

 THE HEALTHCARE LANDSCAPE IN KENYA

While Chapter Two of the 1963 Constitution made extensive provision for property rights,14 absolutely no provision was made for matters connected to health and human well-being. Despite this, however, concerted efforts were made in the period from 1963 to 1993 to reform the Kenyan healthcare sector and to ‘eliminate the inefficiencies and inequities that characterised the system’.15 Identified symptoms of inefficiency included the following: poor management, inappropriate pricing of services, pilferage and wastage of drugs, low staff morale, misuse of transport facilities and over-utilisation of referral facilities. Signs of inequities included: limited access to medical care by the poor, a concentration of medical personnel and facilities in urban areas and the absence of medical insurance coverage for the rural population and for persons in the urban informal sector.16 Six measures were consequently suggested and employed to address these problems:

[the] [i] harmonisation and [ii] decentralisation of the medical care delivery system;

the expansion of preventive health services including family planning services;

the introduction of medical insurance scheme for certain categories of employees;

the selective integration of traditional medicine with modern medicine; and

the introduction of user-charges in government health facilities.17

 Particularly interesting about this reform process was the 1979–83 Development Plan V, in terms of which the Kenyan government encouraged medical pluralism and the integration of traditional African medicine into biomedical structures. Traditional birth attendants were, for example, encouraged to also serve in rural government health institutions and a research unit was established in Nairobi to explore certain aspects of traditional medicine.18 With regard to health financing, the government of Kenya – shortly after its independence in 1963 – provided free healthcare for all children and reduced its fees for adults, who only paid a small sum per hospital admission and received free outpatient treatment.19 In 1966, the National Hospital Insurance Fund (NHIF) was furthermore established as a ‘compulsory non-racial hospital insurance scheme for persons earning over 600 Kenya Pounds’, and later this scheme was also made available to persons with wage employment and to reimburse both private and public government hospitals.20 However, the fund did not increase insurance coverage as expected and by December 1989 – buckling under serious economic difficulties as a consequence of which the IMF and World Bank sponsored structural adjustment programmes – user fees were reintroduced in government hospitals and health centres.21

The Health Policy Framework of 1994 reaffirmed the government's commitment to healthcare reform and had as its main goal to ‘promote and improve the health status of all Kenyans through the deliberate restructuring of the healthcare sector to make all health services more effective’.22 Decentralisation was the guiding strategy in terms of this policy framework. The policy was implemented in terms of two five-year plans and made provision for the district level of the healthcare sector to have more management and decision-making capabilities. On 20 November 2001 President Moi furthermore ordered that a national health insurance scheme be established to ensure universal health coverage and improved quality of care.23 Yet the introduction of a recruitment drive in Parliament on 6 April 2004 for such a proposed national social health insurance scheme was met with strong criticism and opposition (especially from the Health Maintenance Organisations (HMOs) and the Kenya Private Hospitals Association) suggesting that the project was hurried and not properly legislated.24

While these different development plans and policies achieved varying levels of success, the integration of traditional medicine with modern medicine is yet to be achieved and the deep-seated health inequalities that existed between the poor and those that are better off – and that are also prevalent in most other postcolonial African democracies – remain severe. Today, Kenya has the eleventh-highest adult HIV prevalence in the world and maternal and child mortality rates continue to increase.25 Evidence furthermore suggests that public spending on healthcare tends to benefit those that are better off rather than the poor.26 And there are also numerous reports on the dire state of the functioning of Kenya's health system and its infrastructure.

On 26 October 2010, for example, the Minister of Medical Services admitted that appropriate radiotherapy for cancer treatment is only available at one public hospital, the Kenyatta National Hospital, and that the equipment at this hospital had not worked for many months.27 And in April 2013 The Lancet reported about the understaffing at clinics in Kenya, the prohibitive effect of the cost of obtaining treatment (which can be as little as one British pound), as well as limited access to healthcare due to the fact that many clinics do not open over weekends.28 Reports have also been rife in the media about patients being held in public hospitals because of unpaid hospital bills.29 In reply to this, and referring to the Health Policy Framework for 2012–30,30 President Uhuru Kenyetta ‘promised to make good on the 2010 constitution's broad guarantee of every citizen's right to the “highest attainable standard of health”, including basic and reproductive health care services’.31

 HEALTH RIGHTS...

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