Human Rights Watch welcomes the opportunity to provide input into the drafting of the next budget (2011-2012) in Kenya. We conduct research and advocacy around the world on the linkages between human rights and health issues, including on access to health care, health of vulnerable populations, discrimination against people living with HIV, and other issues.
Obstacles to health care in Kenya
In Kenya, we have carried out research on access to health care for several years, with a focus on access to health care for women and children. Our research has documented gaps in the areas of pediatric HIV services, pediatric palliative care, and obstetric care - and these gaps have resulted in serious violations of the right to health. For example, tens of thousands of children in need of anti-retroviral treatment are still not accessing life-saving drugs.[i] Only few hospitals have morphine, an essential medicine for patients suffering from moderate to severe pain, and there are no specialized children's palliative care services.[ii] Access to emergency obstetric care is also inadequate, especially for poor women and girls in rural areas.[iii]
Beyond these specific areas, our research has also shown serious structural limitations in Kenya's health system. Access to health care is often compromised by a dysfunctional referral system between health facilities. When patients seek treatment at lower-level health facilities but cannot be diagnosed or treated there, they are frequently asked to pay for their own transport to a higher-level health facility.[iv]The health system also suffers from a lack of properly trained and compensated community workers. Community health workers play an essential role in reaching out to patients, including children, informing them about health care options, and convincing them to seek care for themselves or children in their care.[v]User fees for tests, drugs, and medical procedures are another obstacle for many patients.
International law and the Kenyan Constitution
Kenya is a state party to the Convention on the Rights of the Child (CRC), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the African Charter on Human and Peoples' Rights as well as other human rights treaties. Recognizing that states have different levels of resources, the ICESCR provides that the rights guaranteed by it, including the right to health, are subject to "progressive realization," meaning that a state should "take steps to the maximum of its available resources" to achieve full realization of this right. States are obligated to work towards conditions that would ensure access to all medical services and medical attention in the event of illness. Under the ICESCR, each state party is obliged to take steps, individually and through international assistance and cooperation, towards the full realization of the rights recognized therein, such as the right to health. It is impermissible for a government to take retrogressive measures in relation to the right to health, which might be implied by lowering the percentage of the health budget as compared to the overall government budget.
In addition, the ICESCR outlines several core obligations for governments, which define "minimum essential levels" of rights that are not subject to progressive realization but must legally be ensured immediately and all times. The government has a core obligation to ensure non-discriminatory access to health facilities, goods and services. Another core obligation is "to provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs". Morphine is one of these essential drugs.[vi] Another obligation of "comparable priority" to core obligations is the provision of reproductive, maternal, and child health care.[vii]
Under the ICESCR, all States have an obligation to work towards the full realization of the right to health worldwide, as "the existing gross inequality in the health status" between developed and developing countries is of common concern to all countries. In particular, States should ensure that the right to health is given due attention in international agreements.
Kenya's Constitution incorporates international law into national legislation in article 2(6) which allows the application of all ratified conventions and treaties. In addition, article 42 provides that "every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care".[viii]
Health care and the health budget
In 2001, Kenya and other African governments committed in the Abuja Declaration to allocate 15 percent of their total budget to health.[ix]
Despite this commitment, Kenya currently only allocates approximately 6.5 percent of current government expenditure (2010-2011) to health. This represents a decrease from the allocation in 2009-10, when Kenya allocated approximately 7 percent of its budget to health.[x]
The 2011 budget debate-the first budget reading following the promulgation of the new constitution-is a welcome opportunity to give more resources to health, in line with the Abuja Declaration. The Kenyan parliament has a crucial role to play in ensuring accountability and pushing for Kenya's core international obligations to be fulfilled.
Key recommendations to parliament and government
Based on its field research, Human Rights Watch is urging the Kenyan parliament to increase funding in this year's health budget in relation to maternal health care, child health care, and systemic weaknesses of the Kenyan health system. In particular, we are calling upon the parliament and government to:
- Increase the number, and strengthen the role of community health workers, including by providing them with basic supplies, transportation where needed, and compensation for their services.
- Strengthen the referral system, for example by providing transport between health care facilities.
- Prioritize the completion and implementation of the National Social Health Insurance Fund to improve access to maternal and child health care.
- Assess the feasibility of exempting fees for maternal health care in all health facilities beyond the current exemption for childbirth in dispensaries and health centres.
- With regards to palliative care, allocate a separate budget line for palliative care, including for new palliative care units that the government has announced, and implement a program of home-based palliative care with pediatric expertise.
- As a minimum, ensure that the percentage of the health budget does not decrease.
- With regards to obstetric care, increase the number of health facilities that offer emergency obstetric care, increase the number of midwives, and develop guidelines on the management of obstructed labor. Also subsidize routine obstetric fistula repairs in provincial and district hospitals, and provide free fistula surgeries for poor patients.
[i]Human Rights Watch, A Question of Life or Death. Treatment Access for Children Living with HIV in Kenya, December 2008, http://www.hrw.org/en/reports/2008/12/16/question-life-or-death; UNAIDS, Global Report 2010, (Geneva: UNAIDS, 2010), p. 259. http://www.unaids.org/documents/20101123_GlobalReport_Annexes2_em.pdf (accessed March 18, 2011). Human Rights Watch has noted with concern recent statements by an official at the National AIDS/STD Control Programme that "HIV is no longer a big issue"; see "Kenya: Aids to lose ‘Special Status' of New Plan", allafrica.com, March 9, 2011, http://allafrica.com/stories/201103100091.html (accessed March 25, 2011). While the integration of HIV/AIDS into a stronger Kenyan health system is an important priority, Kenya must ensure that continuing gaps are addressed, and gains made are preserved.
[ii]Human Rights Watch, Needless Pain. Government Failure to Provide Palliative Care to Children in Kenya, September 2010, http://www.hrw.org/en/reports/2010/09/09/needless-pain. In a positive move, the government of Kenya announced in July 2010 that ten new palliative care units would be created.
[iii] Human Rights Watch, "I am Not Dead But I am Not Living": Barriers to Fistula Prevention and Treatment in Kenya, July 2010, http://www.hrw.org/en/reports/2010/07/15/i-am-not-dead-i-am-not-living
[iv] Needless Pain, p. 71-72; "I am Not Dead But I am Not Living", p. 49-51.
[v] A Question of Life or Death, p. 78-80; Needless Pain, p.38-40, p.54-44; "I am Not Dead But I am Not Living", p.18-22.
[vi] WHO, "WHO Model List of Essential Medicines," March 2009, http://www.who.int/selection_medicines/committees/expert/17/sixteenth_ad... (accessed February 12, 2010), art.2.2; WHO, "WHO Model List of Essential Medicines for Children," 2nd ed., March 2009, http://www.who.int/selection_medicines/committees/expert/17/second_children_list_en.pdf (accessed March 30, 2010), art. 2.2.
[vii]UN Committee on Economic, Social and Cultural Rights, "Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights," General Comment No. 14, The Right to the Highest Attainable Standard of Health, E/C.12/2000/4 (2000), paras. 43-44. The General Comment is based on the International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976.
[viii] The Constitution of Kenya, art. 43 (1) (a), http://www.parliament.go.ke/index.php?option=com_docman&task=cat_view&gi... (accessed March 18, 2011).
[ix]Organization of African Unity (OAU), "Abuja Declaration on HIV/AIDS, Tuberculosis and Other Related Infections Diseases", April 27, 2001, OAU/SPS/ABUJA/3 http://www.un.org/ga/aids/pdf/abuja_declaration.pdf (accessed March 18, 2011).
[x] Gesellschaft für Technische Zusammenarbeit (GTZ), "Kenyan Health Sector - Budget Analysis", 2010, http://www.gtzkenyahealth.com/blog3/wp-content/uploads/2010/07/Health-Bu... (accessed March 18, 2011). Health Action International, an international NGO, has found that the proportion of the government budget allocated to the health sector decreased from 6.9 percent in 2009/10 to 6.3 percent in 2010/11: Health Action International (HAI), "East African Health Budgets 2010/2011: An analysis on financing for essential medicines", December 2010.