The Constitution of Kenya enshrines the right to health under the Bill of Rights. Specifically, Article 43 (1) (a) provides that every person has the right to the highest attainable standard of health, including the right to health care services and reproductive health care, and sub-Article 2 provides that a person shall not be denied emergency medical treatment.
Further, Articles 23 and 165 of the Constitution grant the High Court jurisdiction to determine applications for redress of denial, violation, infringement of, or threat to a right or fundamental freedom in the Bill of Rights. Similarly, Article 22 gives every person the right to institute Court proceedings for the enforcement of fundamental rights and freedoms. Importantly, Article 20 (3) (b) requires the Court to adopt an interpretation that most favours the enforcement of a right or fundamental freedom. To remedy a violation, a court of law may declare rights, issue an injunction to stop the violation of rights, issue an order for compensation, and declare the invalidity of any laws. Therefore, the Judiciary plays a critical role in enforcing the right to health and defining critical aspects on the right to health.
Notably, before the promulgation of the Constitution of Kenya 2010, social and economic rights were not justiciable. However, with the promulgation of the Constitution of Kenya 2010, jurisprudence on the right to health is rapidly developing, with several cases instituted based on claims of violation or infringement on the right to health. These claims have presented an opportunity for the courts to interpret and apply the Constitution, giving meaning to the right to health as guaranteed in the Bill of Rights.
This Health Bench Book examines and analyses emerging courts’ jurisprudence on the right to health. It is also a guide for judicial officers in adjudicating the right to health, as well as being useful to all players in the legal and justice sector, be it legal practitioners, academia, civil society, and members of the public. The book examines the legal and policy frameworks and authorities on health rights. Finally, it is a tool for continued engagement with the Judiciary in the dispensation of justice and development of jurisprudence on the right to health.