Kenya’s Decreasing Resources for HIV may Cause it to Take Retrogressive Measures

Posted by Gabriel Armas-Cardona on August 5, 2014

In the shadow of the US-Africa Summit, comes a scaling down of the US President’s Emergency Plan for Aids Relief (PEPFAR). PEPFAR funds 70% of Kenya’s HIV programs and Kenya says that it doesn’t have the resources to replace PEPFAR.

Kenya is developing a new policy and will soon release an HIV Response National Strategic Plan. Experts are calling for Kenya to focus on prevention in high risk groups to not lose the gains that have been made so far.

From a right-to-health perspective, Kenya has obligations to not deliberately take retrogressive measures and to use the maximum of its available resources. The two are intertwined as the obligation to not take retrogressive measures requires that a State show that it has taken the regressive measures only “after the most careful consideration of all alternatives … in the context of the full use of the State party’s maximum available resources.” (General Comment 14 to the ICESCR, para. 32).

It’s clear that Kenya is attempting to raise new resources as they intend to develop an HIV endowment fund and a national insurance scheme for people living with HIV, but it’s unclear whether Kenya will be able to stop its HIV budget from shrinking. If that happens, almost certainly Kenya will have to take retrogressive measures by reducing or eliminating some of its HIV programs. The scaling down of PEPFAR is outside of Kenya’s control, but Kenya will need to take great care to ensure that it continues to fulfill its obligations under the right to health even as its available resources decrease.

Gabriel Armas-Cardona is a Legal Officer at Lawyers Collective.