JOO v. Attorney General & six others

[2018] eKLR
Download Judgment: English

The Petitioner, Josephine Majani, was a woman from a poor economic background, who was in need of maternal care. As she could not afford private medical care, she went to Bungoma County Referral Hospital, a public health care facility that ought to provide free maternal health care following a Presidential directive that was issued on 1st June 2013. The medical treatment which she received at the hospital was substandard. Moreover, she was physically and verbally abused by staff. She did not even receive an acceptable minimum standard of treatment and care as her condition while after the administration of the inducement drug was not physically checked and monitored. She was unable to access assistance and was forced to walk to the delivery room where the facility was unavailable for her. Due to the absence of any alternative, she was forced to walk back to the labor ward unaided. While on her way back she fell unconsciously and delivered her baby on a concrete floor only. After the delivery, she was mistreated, shouted at and was forced to walk to the delivery room for expending of the placenta. The Petitioner alleged the violation of her Right to Health at the hand of National and County Government and the hospital under Article 22(1) of the Constitution of Kenya 2010 (“Constitution”).

The Petitioner sought for the following remedies including but not limited to order for general damages for physical and emotional trauma. An order compelling the Hospital and governments to monitor the implementation of maternal care standards, an order requiring the Hospital through the Nursing Council of Kenya to take disciplinary action against the nurses who violated the Petitioner’s rights, declarations of violation of the Petitioner’s right to healthcare, dignity and information, and a formal apology by the Hospital and national and county governments. The Petitioner also alleged that the Hospital had failed to publicly display its internal complaint mechanism and had thereby violated her right to information.

The High Court of Kenya held that the Petitioner’s right to healthcare had been violated owing to the lack of “proper treatment at the hospital, availability of necessary equipment, facilities, and medication”. She was made to share a bed with another patient because lack of beds, directed to walk to the delivery room (which was fully occupied) without any assistance and insulted by two nurses after giving birth on a concrete floor. The Hospital had failed to comply with Article 43(1)(a) under the Constitution and relevant provisions under international laws, including Article 12(1) of the ICESCR and Article 16 of the Banjul Charter. Moreover, the Hospital had failed to follow the Presidential directive on offering free care for all women giving birth in a public health facility issued on June 1, 2013.

The Court held that the Petitioner’s fundamental right to dignity was violated which is inherent in human beings by virtue of Article 28 and 29 of the Constitution, Article 5 of the Banjul Charter and Article 3(1) of the Maputo Protocol. The Petitioner was forced to give birth in an open place where third parties could watch and her image was captured on video. Moreover, the video captured the image of two nurses shouting at her. The Hospital and nurses did not respect and protect the Petitioner’s inherent right, i.e., right to dignity but humiliated her. They infringed “her dignity as a woman and as a member of the human race”.

The Court held that the Petitioner’s right to information was not applicable in this case because both the facts on record and the Petitioner’s testimony did not indicate that any necessary information was not disclosed to her. The Court also held that the national and county governments failed to establish policy guidelines to effectively implement laws and the presidential directive on free maternal care based on recent reports on healthcare services in Kenya, therefore violated “our own very Constitution and International instrument that we have acceded to as a country”.

The Court directed and ordered that a formal apology be made to the Petitioner by the Hospital and the three nurses. It awarded damages of Kshs. 2,500,000 (approximately 24,789 USD) to the Petitioner to be paid by the national and county governments.

“The respondents failed to avail the basics; drugs and cotton wool are basic provisions in any healthcare and to require the Petitioner and other poor women to purchase basic necessities in a public facility where health care is anchored on the Constitution and where a Presidential directive was specific on the provision of free maternal care is nothing short of violation of a basic rights.” Para 58

“The petitioner certainly did not deserve cruelty and abuses meted on her. The nurses as healthcare providers owe a duty of care to their patients at all times, theirs is a calling to serve humanity in vulnerable circumstances. What the petitioner required was understanding and compassion at the times.” Para 62

- Article 22(1) of the Constitution: “Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.” - Article 25 of the Constitution: “Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited: (a) freedom from torture and cruel, inhuman or degrading treatment or punishment; (b) freedom from slavery or servitude; (c) the right to a fair trial; and (d) the right to an order of habeas corpus.” - Article 27(4)& (5) of the Constitution: “(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth. (5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).” - Article 28 of the Constitution: “Every person has inherent dignity and the right to have that dignity respected and protected.” - Article 29 of the Constitution: “Every person has the right to freedom and security of the person, which includes the right not to be: (a) deprived of freedom arbitrarily or without just cause; (f) treated or punished in a cruel, inhuman or degrading manner.” - Article 35(1)(b) of the Constitution: “Every citizen has the right of access to (b) information held by another person and required for exercise or protection of any right or fundamental freedom.” - Article 43(1)(a)of the Constitution: “Every person has the right: (a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.” - Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR): “The state parties to the present Covenant recognize the right for everyone to the enjoyment of the highest attenable standard of physical and mental health.” - Article 5 of the African Charter on Human and People’s Rights (Banjul Charter): “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment, and treatment shall be prohibited.” - Article 16 of the African Charter on Human and People’s Rights (Banjul Charter): “(1) Every individual shall have the right to enjoy the best attainable state of physical and mental health. (2) States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.” - Article 3(1) of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo Protocol): “Every woman shall have the right to dignity inherent in a human being and to the recognition and protection of her human and legal rights.”