Judicial enforcement of the right to health under the new constitution of Kenya
Abstract
The right to health is a fundamental human right recognized under international human rights
law. The recognition of the right to health aims at protecting the most vulnerable in the society.
Proper health care is needed for the survival of the human being. Its recognition is an essential
component of development, vital to a nation's economic growth and internal stability.
The 2010 Constitution of Kenya (CoK) has for the first time recognized socio-economic rights
under Article 43. The right to health has also been recognized together with other socioeconomic
rights. The High Court of Kenya has been granted the authority to uphold and enforce
the bill of rights.
Despite its recognition in the CoK judicial enforcement of the right to health has faced numerous
challenges. Some of the key challenges include the normative interpretation of the right to health
and the choice between the minimum content core approach developed by Committee on
Economic, Social and Cultural Rights (CESCR) and the reasonableness test approach developed
by the South African Constitutional Court; the balancing between making decision that touch on
allocation of resources and respecting the doctrine of separation of powers; and finally drafting
an appropriate remedy when the right to health has been infringed and how to monitor the
implementation. Kenyan Court has had to grapple with these challenges in adjudicating the right
to health.
This research analyses the constitutional protection of the right to health in Kenya. It interrogates
the key decisions that have been made in regard to the judicial enforcement of the right to health
and other key socio-economic rights under article 43 of CoK. It discusses the key practical
challenges that the courts face in enforcing the right to health. Finally it discusses
recommendations upon which if integrated will promote the judicial enforcement of the right to
health.
This study aims at providing scholarly literature on the judicial enforcement of the right to health
in Kenya. This literature through the recommendations addressed will provide the Kenyan courts
with a guide to follow when addressing the practical challenges facing the adjudication of the
right to health. It also proposes adoption of the minimum core content approach to ensure
citizens access the basic essential of health services in Kenya.
Citation
Master of Laws (LLM)Publisher
University of Nairobi