Assessing Kenya’s Compliance With the International Regulatory Framework for the Protection of Refugees: a Right to Health Perspective

Abstract

The intrinsic prerogative to “the highest attainable standard of health” is anchored in international legal texts and serves [or rather is presumed to serve] as the cornerstone of any country’s practical consideration of ‘healthcare’ and protection of fundamental human rights. The setting of this ultimate human entitlement is construed to function in a progressive, yet practical, efficient and sustainable manner. Furthermore, at the heart of this inalienable entitlement lies an effective and inclusive health system – one that promotes equitable and indiscriminate access to health care facilities and encompasses an adequate supply and availability of medical resources, including a fulfilled or advancing commitment to its underlying determinants. Yet in Kenya, the refugee health system is collapsing with little to no initiatives targeted at its improvement, giving rise to a humanitarian health issue. By encompassing the Bill of Rights, and in particular Article 43 in its Constitution, 2010, Kenya confirms its commitment to the international human rights duty to indiscriminately respect, protect, promote and fulfill the fundamental right to health of its entire population. With its initial articulation being the World Health Organization’s Constitution, seconded by international legal instruments it has acceded to and ratified, Kenya, guided by its commitment to achieving Universal Health Coverage grounded on the Limburg principles undertakes the responsibility of progressively securing equitable public health access, for all. This study is inspired by the apprehension that despite Kenya’s accession and adoption of the 1951 Refugee Convention, International Humanitarian laws and Human Rights instruments pledging upon the indispensable right to health, including embracing one of the most advanced and spirited Constitutions of its time, scrutiny of its realistic implementation reveals the state’s failure to adequately and efficiently respond to refugee health concerns. This paper, therefore, the extent of divergence and convergence that exists in Kenya’s obedience to the facilitation of health care access envisaged in legal texts, resonating with its international law-grounded refugee ‘protection’ mandate. Driven by this notion, this research thesis consequently advances three focal arguments. The first contention is that regardless of the numerous provisions that exist concerning safeguarding refugees’ entitlement to the highest attainable standard of health, the Government of Kenya fails to actively and adequately react to the populations’ medical demands; secondly, this creates a public health dilemma between the international community’s pressure on the execution of state responsibility and the global agenda for the achievement of Universal Health Coverage; and thirdly, that progressive accomplishments undertaken through comprehensive initiatives is a potential structure to bridge the long-standing gap between the law in the books and the law as lived, for a pragmatic realization, hence securing compliance. Establishing that refugees are entitled to equal protection of their fundamental rights as host states’ nationals, this study relies on the human rights theory, with the consent-based theory asserting that indeed Kenya is bound in obedience to the extent of that which it freely consents to. This paper is purely doctrinal. It seeks to compare and contrast health care access as an entitlement depicted in refugee and human rights legal provisions and the law “on the ground”. This study demonstrates that whereas Kenya has proved quite welcoming to persecution survivors, its protection capacity does not fully extend to appreciating their central rights – especially health. Whereas the notion of “protection” is expressly construed as obliging member states’ grant of safe asylum to refuge-seekers, the same is implied in the context of their universal rights. In this study, I postulate that the law in the text can be in accord with the “living reality” if collaborative and dedicated health equity approaches can be framed, practically implemented, and maintained as per the United Nations General Assembly Resolutions on Health, Ottawa Charter provisions and the New York Declaration Refugees and Migrants. This research paper considers that while the law technically determines and regulates member states’ responsibility, several other factors reflect and justify the host country’s inability to comply. I however contend that Kenya’s financial incapacity to fully conform should not end at that; the Government ought to create a means to secure progress fulfillment: an imperative for the achievement of refugee health equity and a culturally-primed reform to its morally oppressive health system.