The right to the highest possible standard of health

Even as candidates litigate over the presidential election results, citizens should start to think about what we expect government to do. News items remind us of the vital issue of health — and our right to health.


What our Constitution recognises is our right to the “highest attainable standard of health”. Think about this phrase for a moment. What limits you in attaining health? If you are of my generation: Probably your age. For some people it is money. For others of us, our lifestyles — even if we know something creates risks, we can’t bring ourselves to change, whether it is smoking, drinking, too much sugar, too little exercise, or too much bending over a computer. For some people it is ignorance: They do not understand the risk they create for themselves or their children by some sorts of behaviour. For many Kenyans, the biggest issue is lack of clean water. For others it is inadequate healthcare — no drugs, no dialysis, no cancer care and/or no clinic.

More resources into healthcare will produce better health outcomes. But one recent study put the US (with public and private health expenditure highest in the world on many reckonings) at place 34 in the world in term of health. Italy, which does not figure among the highest spenders, came out on top in terms of health.

The constitutional language about the “highest attainable standard of health” is also intended to recognise that government resources will restrict achievements in the field of health — but it is not intended to give government excuses for not trying. Not only should government begin straight away, but continue to make progress: The Constitution says there must be a “progressive realisation” of the right.


The “right to health” (for short), is not just about being healthy, and not just about government spending on health care. It is certainly about government putting in its best efforts to enable us to keep ourselves healthy — and about government and others not preventing us from doing so.

It is also about how issues of health are approached. All government policies and actions must be respectful of people’s dignity, their privacy, their equality, their beliefs and cultures, their right to express their wishes and opinions, and their rights not to be compelled to accept treatment against their wishes. Of course, there are sometimes situations where people need to be persuaded to change their practices and against beliefs, for their own health, that of their children and of the community generally. But persuasion not compulsion must be the main approach. For example, our courts have held that it is not right to send people with multi-drug resistant tuberculosis to prison if they have not been taking their drugs.

Treatment should be not only available (whether offered by the government or private providers) but also accessible — financially, geographically, physically (especially for persons with disability) and in other ways. It should be acceptable to those who use it: There is a good deal to be learned from traditional medicine in all countries, for example. Treatment of women giving birth can be supportive, respectful and caring or it can be technical, brusque and alienating.

And healthcare must be appropriate. Certain diseases and conditions are more prevalent in some parts of the country than others. There are various “neglected tropical diseases”, as WHO calls them, that are common in Kenya. It is important that priorities are not set based on the experience and needs of vocal and visible minorities.


A short while ago, there were reports that a man had committed suicide by jumping from a national referral hospital because — it was said — he was detained (thought he had been medically discharged) because he could not pay the bill. Assuming this is true (always take media reports with a pinch of salt larger than your doctor would recommend!), there seem to be several issues here. The first is about detaining patients for non-payment of bills. Several courts have held that to detain patients because they have not paid their bills is a violation of their rights — of dignity, of liberty, of movement, of equality (because it affects the poor most) and of the right to health itself ­— including because people will be discouraged from seeking treatment. But it seems that our hospitals are unaware of all this.

How easy is it for patients to jump to their deaths — are there bars on windows to prevent it, for example? If a patient is detained against his or her will, for whatever reason, presumably suicide is a foreseeable risk. Do hospitals have special watch on such patients or other precautions to prevent suicide? All these are right to health (and life) issues.


In fact, some of the most dramatic benefits in terms of Kenyans attaining the highest possible standard of health would not involve doctors.

To begin with cholera: The World Health Organisation says that “as of July 17, 2017, a total of 1,216 suspected cases, including 14 deaths (case fatality rate: 1.2 per cent) have been reported since January 1, 2017.” Almost certainly far more cases have not been reported. We have reason to be grateful that we are not in Yemen, where cholera cases have reached half a million this year and 2,000 people have died. We know why the problem exists in Yemen, but in Kenya? Simply put, it is water. Lack of clean water to drink (whether it is unavailable or is too expensive), lack of water (and soap) to wash one’s hands. Cholera is not transmitted through the air. In the mid-19th Century, London had several cholera outbreaks. There was one in 1866 as the city was developing its water and sewage infrastructure. There has been none since then.

We have 17 million people without access to safe water, and 30 per cent of our urban population without access to proper sanitation. Improvements would save many — especially children — who die from diarrhoea.

Water is related to malaria, too, and other mosquito borne diseases. You may have heard about the children who died in an Indian hospital, when oxygen ran out. They were suffering from Japanese encephalitis, which is spread by mosquitoes. We don’t have it in Kenya (yet). We do have dengue fever. We need to take mosquitoes seriously.

The right to health, like other rights, must figure prominently in the plans of all public agencies.


The recent Health Act makes a beginning in the direction of recognising health as a right. It emphasizes healthcare as a right, including reproductive health, and the need for healthcare to be concerned with prevention of disease and injury, with promotion of health, with access to healthcare, both physical and financial. It stresses the importance of protecting the interests of vulnerable groups, and everyone’s dignity and privacy. And it requires information to be given to the public and users of services, and the informed consent of patients to any procedures. And it requires procedures for patients to complain about failure in service. It also envisages the development of a policy on traditional medicine (something already on the Ministry’s agenda).

All these are welcome. But what happens next? The Act sets up several new bodies — another trend in Kenyan law making. This not only adds to our national financial commitments, it postpones the taking of decisions by pushing the responsibility on to the new body.

Like several recent Kenyan Acts, it reads more like a Constitution or an international treaty than a law. Six times this law, made by Parliament, says Parliament must make law on some subject. Many of its provisions are very general — with no answer to a question like, “What happens if this is not done?”

By Jill Cottrell Ghai


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