A CRITICAL OVERVIEW OF THE HEALTH ACT 2017

2020

Promoting global health ensures progress in basic humanitarian values in saving and improving lives. In recent years, improving global health has proven its advanced value in promoting security

African Journal of International and Comparative Law, 2019

Kenya's recently promulgated 2010 Constitution has been met with much enthusiasm and expectation after a difficult and protracted history of constitutional development and reform. This article considers and evaluates the key constitutional provisions with regard to the recognition of health rights in Kenya together with other health-related provisions, and with specific reference to the realisation and enforceability thereof. This evaluation will be conducted from a comparative perspective with references made to other African constitutions and case law. It is the objective of this article to offer a critical evaluation of the health rights included in the Kenyan Bill of Rights in relation to its African counterparts and to consider the possibilities and potential obstacles for the realisation and enforcement thereof. It is evident from this comparative evaluation that the Kenyan Bill of Rights contains pioneering provisions with regard to the right to health that can bring about meaningful changes for Kenyan citizens through effective socio-economic rights jurisprudence.

The promulgation of the constitution of Kenya on 27th August, 2010 was a major milestone towards the improvement of health standards. Citizen’s high expectations are grounded on the fact that the new Constitution states that every citizen has right to life, right to the highest attainable standard of health including reproductive health and emergency treatment, right to be free from hunger and to have food of acceptable quality, right to clean, safe and adequate water and reasonable standards of sanitation and the right to a clean healthy environment. The Health Sector, therefore, needs to consolidate gains made in respect to provision of service delivery; leverage existing decentralized structures in health; and re-position itself to fulfil these expectations. The two levels of government are under obligation to ensure that the right measures are put in place for successful implementation of Constitution. This paper therefore looks at the emerging issues and their implications in the Kenya's health sector that continues to experience different challenges

JKUAT Law Journal, 2015

In 2001 the African heads of state met in Abuja and agreed to allocate a minimum of 15 per cent of their budgets to health care in order to meet the needs of their citizens and towards the achievement of better health. However, this does not take into account the specific health sector spending decisions and health equity within a state’s population. This paper attempts to make a first analysis of the terms progressive realization and state responsibility in the context of health equity. The difficulties in conceptualizing and achieving human rights and health will be canvassed. The paper will finally focus on the Kenyan state’s duty and responsibility in progressively achieving health in the context of article 43 of the Kenyan Constitution of 2010, which includes health care and services under state responsibility and article 172 which maintains a strong state control on finances. The result of which is while there is a strong health equity based constitutional provision, the 2013/2014 national budget did allocated only 5.9% of the state budget to health underscoring the need to make a stronger link between state responsibility as evidenced through the fiscal regime and progressive realization. Article on pages 127-142.

Legal and institutional foundations for universal health coverage, Kenya, 2020

Kenya’s Constitution of 2010 triggered a cascade of reforms across all sectors to align with new constitutional standards, including devolution and a comprehensive bill of rights. The constitution acts as a platform to advance health rights and to restructure policy, legal, institutional and regulatory frameworks towards reversing chronic gaps and improving health outcomes. These constitutionally mandated health reforms are complex. All parts of the health system are transforming concurrently, with several new laws enacted and public health bodies established. Implementing such complex change was hampered by inadequate tools and approaches. To gain a picture of the extent of the health reforms over the first 10 years of the constitution, we developed an adapted health-system framework, guided by World Health Organization concepts and definitions. We applied the framework to document the health laws and public bodies already enacted and currently in progress, and compared the extent of transformation before and after the 2010 Constitution. Our analysis revealed multiple structures (laws and implementing public bodies) formed across the health system, with many new stewardship structures aligned to devolution, but with fragmentation within the regulation sub-function. By deconstructing normative health-system functions, the framework enabled an all-inclusive mapping of various health-system attributes (functions, laws and implementing bodies). We believe our framework is a useful tool for countries who wish to develop and implement a conducive legal foundation for universal health coverage. Constitutional reform is a mobilizing force for large leaps in health institutional change, boosting two aspects of feasibility for change: stakeholder acceptance and authority to proceed.

2004

Since independence in 1963, Kenya has continued to design and implement policies aimed at promoting coverage of and access to modern healthcare in an attempt to attain the long-term objectives of health for all. On attaining independence, the Government committed itself to providing "free" health services as part of its development strategy to alleviate poverty and improve the welfare and productivity of the nation. The development and expansion of health services and facilities in terms of spatial coverage, training of personnel, and in tertiary healthcare delivery services since independence has been commendable. Though the physical infrastructure for health provision in Kenya has expanded rapidly, distribution and coverage remains uneven especially in rural areas. Maintenance of public sector health facilities has been a big problem and a major burden for the Ministry of Health. Healthcare policy reforms have therefore been adopted as a strategy of supplementing government budgets to revitalize healthcare delivery systems. The most notable health reforms the Government has adopted include decentralization and cost sharing. The health achievements between 1960 and 1992 have been encouraging. During this period, there were improvements in infant, child and maternal mortality and morbidity rates, crude death rate, and life expectancy, among others. However, since the early 1990s, there has been a declining trend in the health status of the population. Mortality rates started increasing in 1993. Infant and under five mortality rates increased from 51 and 74 in 1992 to 74 and 112 in 1998, respectively. Chronic malnutrition or stunting prevalence remained at 33 percent in the period 1993 and 1998. The greatest challenge to independent Kenya has been the emergence of the HIV/AIDS pandemic. It is estimated that 2.2 million Kenyans are now living with HIV infection, representing about 14 percent of the sexually active population. Over 1.5 million Kenyans have died of AIDS since the epidemic started. The HIV/AIDS pandemic is becoming much more than a health problem as it encompasses economic, social, and cultural dimensions. The epidemic continues to exert pressure on the healthcare delivery system. Although there has been a massive expansion of health infrastructure since independence, increasing population and demand for healthcare outstrips the ability of the government to provide effective health services. Provision of effective health services requires that the government addresses issues of inadequate health personnel, financing, drugs, health infrastructure, inefficiency in health delivery, and inequality in delivery of healthcare.

Judicial enforcement of social and economic rights is not a new topic. It has taken various forms, from whether it should be constitutionalized, remain as aspirational ideals, spreading to access to medicine cases and even redistribution of state resources to the most effective mode of judicial enforcement. You see today, a number of governments have already enshrined these rights into their constitutions and so whether or not it should be constitutionalized is now a dead argument. Most commentators have an obsession with South African jurisprudence on this subject but even there, it has been enforced with little success as regards health rights. Other concerns have included that by enforcing this right the courts are intruding into a mandate that is not theirs. Additionally, that these rights require a lot of resources to enforce when compared to other rights. I argue in this dissertation, while using other commentators’ arguments to make mine, that judicial enforcement does not water down the separation of power principle, in fact, it is the courts alone that have the right to intrusion. I also argue that civil political rights involve policy too and an equally large amount of resources. Finally, I suggest the most effective way enforcing social and economic rights.

A healthy nation comes with it a healthy, vibrant and productive people. The health sector in Kenya therefore plays a vital role economically, socially and politically in making the country to realize her dreams of vision 2030. Kenya Vision 2030 is the country's new development blueprint covering the period 2008 to 2030. It aims at transforming the country into a newly industrializing middle-income country providing a high quality life to all its citizens by the year 2030. Under the health sector, the Vision 2030 is to provide an efficient and high quality health system with the best standards through devolving health management, focusing more on preventive other than curative care. It is necessary for the central government to take cognizance of the fact that effective health care system is essential for the development of a country.