Okwanda v. Minister of Health and Medical Services, et al.

Petitioner, an elderly retired person, was diagnosed with diabetes and Benign Hypertrophy (a life-threatening terminal disease). Petitioner claimed that that the cost of the medication was prohibitive and that he was in need of urgent medical attention. Petitioner sought assistance of the court to enforce his fundamental rights to the highest attainable standard of health under Article 43 of the Kenyan Constitution (the “Constitution”) and Article 11 of the International Covenant on Economic Social and Cultural Rights (the “Convention”) and to receive reasonable care and assistance as an older member of society under Article 57 of the Constitution.

Article 43 of the Constitution, read in conjunction with Article 20(5) of the Constitution provided for progressive realization of social and economic rights wherein the availability of resources was a key factor. Under Article 21 of the Constitution, the state was obliged to take measures to achieve the progressive realization of the rights guaranteed under Article 43 of the Constitution.

The Court agreed with petitioner that “the success of our Constitution largely depends on the State delivering tangible benefits to the people particularly those who live at the margins of society.” Thus, the Court noted that the question at hand was whether the state had fulfilled its obligations under Article 43 as read in conjunction with Article 21 and confirmed that, where rights are to be progressively realized, the state has an obligation to show that it has taken some concrete steps to actualize the rights in question.

However, the Court also noted that the petitioner had a responsibility to plead a case that exposes a violation of fundamental rights with particularity, not with “mathematical precision, but in a manner that will enable the respondent [to have] notice of the allegations and defend himself or herself and to enable the court to adjudicate the violation.” Here, the Court claimed, the petitioner had placed no evidence before the court to show that Kenya had violated its obligation to ensure that each person had the right to the highest attainable standard of health. The Court noted that the government hospitals provide healthcare to the petitioner at a cost and “whether the form of healthcare provided in these circumstances meets the minimum core obligation or the highest standard is not one that was subject of evidence and argument before me.” Therefore, though it was not “unreasonable” for the petitioner to demand that a concrete policy be implemented to address various health afflictions, such matters of policy were not appropriate for the Court to address. “With great sympathy” the Court thus held that there had not been sufficient material presented to show there had been a violation of the Constitution and dismissed the petition.

“13. I entirely agree with the eloquent and forceful submissions made by Dr Khaminwa on behalf of the petitioner that the success of our Constitution largely depends on the State delivering tangible benefits to the people particularly those who live at the margins of society. The incorporation of economic and social rights set out in Article 43 sums up the desire of Kenyans to deal with issues of poverty, unemployment, ignorance and disease. Failure to deal with these existing conditions will undermine the whole foundation of the Constitution.”

“16. Therefore, even where rights are to be progressively achieved, the State has an obligation to show that at least it has taken some concrete measures or is taking conscious steps to actualize and protect the rights in question.”

“18. The fact that the case is one that involved economic and social rights does not relieve the petitioner of the responsibility to please a case that discloses a violation of fundamental rights and freedoms with due particularity.”

“19. What the petitioner seeks in declaration A, B and C of the petition are really the State obligations and declarations to that effect will neither add nor subtract from the petitioners situation. As a matter of fact, no evidence was placed before the court to show that the State has breached its constitutional obligations in regard to the provision of health services in a manner that violates the State obligation to ensure 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.’”

“24. It is not unreasonable for the petitioner and other concerned Kenyans to demand that a concrete policy framework be rolled out and implemented to address the containment and treatment of various health afflictions. These, however, are matters of policy which the State is expected to address in light of its clear constitutional obligations. In the absence of a focused dispute for resolution by the court, I am reluctant to express myself on the broad matters raised in the submissions unless there is sufficient material that there has been a violation of the Constitution and the court is required to act to provide the requisite relief.”