The preamble to the Constitution of the World Health Organization (WHO) and Section 2 of the Health Act (No 21 of 2017) define Health as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. Additionally, WHO provides that the enjoyment of the right to health should be protected regardless of race, religion, political belief, economic or social condition.
An excellent example of said protection is under the Constitution of Kenya, which guarantees every person in Kenya the right to the highest attainable standard of health Under Article 43 (1) (a). The aforestated position is also emphasized under Section 7, Health Act (No 21 of 2017). The question remains what it means to have the right to the highest attainable standard of health and its attainability.
The definition submitted by the WHO emphasizes the importance of protecting the right to health. One of the factors it lists that ought not to limit the protection of said right is an economic condition. It is safe to assume from the preceding statement that the economic status of an individual ought not to be a factor limiting the protection of their right to health. If this is the case, then the steadily rising cost of health in Kenya could easily be considered unconstitutional and a breach of the United Nations Sustainable Development Goal three, which guarantees good health and well-being for every person.
The high cost of health in Kenya has left poor populations unable to access the highest attainable standard of health. It is, of course, noteworthy that the government did take steps towards easing the strain placed on the poor populations concerning the cost of health through the introduction of the Universal Health Coverage (UHC). Some of the notable mentions introduced by the UHC include; the abolition of all fees at local and secondary level [county referral], the provision of free maternity services in all public health facilities from 2013, and introducing a health insurance subsidy programme for the poor (HISP) to reduce out of pocket payments by the poor populations.
The advancements were and remain a grand gesture. However, according to an analysis by Sammy Khagayi and Edwine Barasa in their article “We are called the et cetera”: experiences of the poor with health financing reforms that target them in Kenya, Empirical evidence from Low and Middle-Income Countries (LMICs) reveals that public spending on health tend to benefit the rich population more than it does the poor for whom such developments were intended. Additionally, substituting health care payment with payment mechanisms does not solve access to health for the poor because the direct cost of care accounts for a tiny part of the total cost.
An example of a situation that revealed the lacuna in the health systems and infrastructure was the COVID 19 pandemic. The financial stability of an individual played a pivotal role in ensuring their right to health was protected. Most of the community and primary care centers in Kenya lack adequate medication necessary for handling COVID 19 cases; the country in more areas than one lacked vital equipment used to treat respiratory conditions such as ventilators. The only solution to getting proper treatment and care was in private institutions, a majority of which had the proper equipment.
The only problem with private institutions was the cost. Quite a good number of Kenyans were unable to afford such institutions; this means that quite a good number of Kenyans were not in a position to “afford” the highest attainable standard of health. For example, take the cost of testing, standing firm at ten thousand shillings in places like Nairobi Hospital. Approximately fifty-three percent of the population for which the tests are mean are multi-dimensionally poor and cannot afford to pay that much for medical attention. It is noteworthy that this is just the cost of testing.
The Daily Nation, on 28 July 2021, published an article by Oscar Ochieng and Darmi Jattani on how expensive out-of-pocket health is for the people of Kenya. The article primarily addresses the struggles faced by the poor population in Kenya regarding affording health care. During economic uncertainty, citizens look up to the government for essential services like health and food. Unfortunately, National Hospital Insurance Fund (NHIF) offers limited financial protection with the poor and elderly and patients with chronic illnesses having the lowest access.
Ochieng Jattani opined that the government must protect its people, more so during times of economic uncertainty. The government in times like these ensures that essential services like health and food are adequately provided to all citizens. However, this has not been the case in Kenya during the COVID 19 pandemic. The National Hospital Insurance Fund (NHIF) has not offered adequate cover for the poor, elderly, and patients with chronic illnesses. The article shows that it is the rich that have adequately benefited from the NHIF cover. Hence the question how much does the highest attainable standard of health cost in Kenya?