The Constitution of Kenya, 2010 has been heralded as one of the most transformative constitutional frameworks in the world. A key indicator for this global acclaim is the express provision and codification of human rights, with an entire chapter on the same. Specifically, the Constitution appreciates the role of government in realising economic, social and cultural rights.  Of concern is the right to health as expressly provided for under Article 43 (1). Article 43 (1) (a) of the Constitution states:

Every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care. 

This, therefore, is the normative standard upon which the right to health is premised. To entrench the aspirations of the drafters of the Constitution, Parliament passed the Health Act, 2017 whose cross-cutting aim is to flesh the right to health as guaranteed by the Constitution and clarify the role of both levels of government in the realisation of the same.  

The understanding of Article 43 (1) (a) outlines a standard upon which the right to health is predicated. The minimum standard envisioned by the Constitution to that effect is that every citizen is guaranteed the right to health to “the highest attainable standards”. A concise conceptualisation of the right to health was proffered by the Committee on the Economic, Social and Cultural Rights (CESCR). The Committee vide paragraph 4 of CESCR General Comment 14 stated that: 

The right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.

Further to it, the CESCR, again in General Comment 14, gives an interpretation of what the “highest attainable standard” entails. While the General Comment is not binding in nature, it does form an authoritative text that can be relied on for interpretation. Paragraph 12 of the General Comment 14 outlines a standard that has since been coined as the ‘AAAQ framework.’ This framework presupposes that ‘the right to health in all its forms and at all levels contains four interrelated and essential elements: availability, accessibility, acceptability and quality.’

Kenya’s healthcare sector has posted mixed results. On one hand, both levels of government have taken numerous measures to improve the sector, but it remains clear that more needs to be done, more so if the current status is varied against the AAAQ framework as discussed herein. 

• Availability

The availability ambit requires that the healthcare system, more so public health systems, are functional, with proper facilities and services and effective healthcare programmes that are adequate to serve the populace of a country. 

The indicators for this ambit are the availability of hospitals, clinics and healthcare-related centres, trained and professional healthcare personnel, sound and competitive remuneration for the personnel and the availability of essential medicine and medical supplies. 

This criterion relies heavily on the development status of a country. There is room for appreciation that the nature of facilities and services among others is premised on several factors including a country’s development status or level. 

For Kenya, positive steps have been taken, more so with the advent of devolution. Surgeries and other theatrical procedures have been performed in areas that were originally behind the curve, and dispensaries and healthcare facilities have become available at the foundational unit of governance — the wards. 

Nonetheless, the country continues to experience challenges around this element. Drug shortages, perennial healthcare strikes as well as high costs of healthcare have made availability a pipe dream for many Kenyans. Considering that healthcare is a devolved function with some components still shared between national and county governments, it is important that an extensive audit of the sector is done to determine the impediments to making healthcare available to all. With that in the clear, it will then inform the conversation going forward rather than piecemeal efforts. 

• Accessibility

This component presupposes that people should be able to enjoy healthcare services without limitations, more so without being discriminated against. The CESCR outlines four pillars that underpin this component: 

• Non-discrimination: This pillar epitomizes the ability of all persons regardless of their standing in society. This ensures that all persons, including the vulnerable and marginal subsets in society, have access to healthcare services without being discriminated against.

• Physical accessibility: health facilities, goods and services need to be within the reach of all persons. This again should take care of all subsets of the society, especially vulnerable or marginalized groups, such as ethnic minorities and indigenous populations, women, children, adolescents, older persons, persons with disabilities and persons with HIV/AIDS. Underlying determinants of health like safe water, sanitation and hygiene should be accessible to all. 

• Economic accessibility (affordability): health facilities, goods and services need to be within the economic reach of all persons. The principle of equity should guide this pillar and ensure that healthcare services are available for all, including socially disadvantaged groups. Additionally, equity ensures that poor households are not overburdened with high costs of healthcare, in comparison to richer households.

• Information accessibility: This pillar presupposes that people can seek, receive, gather and possibly impart information on health matters. The caveat is that information obtained from patients should not impair patients’ right to confidentiality.

The Kenyan context is still far from realising these pillars. While access may be restricted to physical access, healthcare costs remain highly unaffordable. Questions as to the security of patient data have risen with no clear safeguards to protect confidential patient information. The recourse is that Kenya has enacted a Data Protection law that may help seal some of these loopholes, but more needs to be done to demystify the fact that accessibility has different pillars and is not restricted entirely to physical access. 

• Acceptability

This ambit suggests that health services need to appreciate and remain respectful of medical ethics and be culturally appropriate. This is because healthcare should appreciate the culture of individuals, minorities, peoples and communities they are set up in. Moreover, the settings need to appreciate and remain sensitive to gender and life-cycle requirements, as well as be designed to respect confidentiality and improve the health status of those concerned. 

While the Health Act, 2017 appreciates the place of traditional and indigenous medication, there still is a disconnect between how traditional and indigenous medication can thrive alongside modern methods of medication. 

• Quality

General Comment 14 prescribes that healthcare services and facilities need to be scientifically and medically appropriate and of good quality. This translates into among other things the requirement of skilled personnel, scientifically tested, approved and unexpired drugs, efficient healthcare equipment and sound sanitation and hygiene structures. 

While quality may not be quantified or measured, it remains on the other pillars like access and costs. The idea is that every citizen should be able to access healthcare that is of standard and responds to the unique demands of a patient. Considering that the question of quality is debatable, for Kenya to ensure quality healthcare, there is more that needs to be done with the other pillars as indicated above. There is a distinction between ‘being healthy’ and ‘the right to health’ and all need to be assured to the Kenyan citizen. 

In conclusion, the AAAQ is a minimum framework that outlines the basis upon which a functional healthcare system is to be premised. Kenya is a developing country, and resources may be a bit squeezed, but that notwithstanding, with proper planning, sound accountability measures and attaching evaluation and monitoring schemes, the government will be able to resuscitate the ailing healthcare sector. This needs to be done against the backdrop of an audit of the current outlay to ensure the solutions in place respond to the deficits and is based on informed premises.