Article 43(1) of the 2010 Constitution of Kenya recognises the right to the highest attainable standard of health. Kenya has the largest number of HIV cases in the world alongside Tanzania, Mozambique and Uganda.[i] Until recently, the Kenyan government provided free ARVs to 1.5 million Kenyans with donor assistance.[ii] As of 2020, the access to ARVs increased to 80 per 100 people living with HIV from 64 per 100 people in 2008.[iii]
The United States Agency of International Development (USAID) has been distributing ARVs to Kenya for the past 10 years without fail. [iv] For the past 5 years since September 2015, USAID and Kenya Medical Supplies Authority (Kemsa) had a 5 year procurement contract that ended on September 25, 2020.[v] Upon termination of the contract, the Government was outraged that USAID contracted another firm called Chemonics as opposed to renewing the contract with Kemsa.[vi] The Government attempted to impose an $ 847,902 tax on the donation which USAID vehemently opposed.[vii]
Eventually, the treasury approved a tax exemption on the USAID donation.[viii] The situation has quickly escalated and the nation is already experiencing the adverse effects. Counties such as Kisumu, Siaya, Migori and Busia have experienced severe ARV shortage due to this crisis.[ix] Homa Bay has reported total unavailability of these drugs in their hospitals.[x] Residents of Kisumu County have taken to the streets to protest as this is a clear legal and moral violation of their rights.[xi] Further, sex workers in Mombasa County protested the lack of ARVs for the past 2 months.[xii]
Although the tax imposed on the USAID shipment was waived, the Agency is still required to contract KEMSA so the stalemate is ongoing.[xiii] KEMSA then released its own batch of ARVs to six counties.[xiv] The consignment is expected to last for the next 3 months as they order more drugs over time.[xv] Unfortunately, there has been claims that the consignment has been unable to reach all the counties which KEMSA has refuted.[xvi] Moreover, there are more claims that the ARVs distributed by the Government are indeed toxic.[xvii] These allegations are coming from County Executive Commissioners.[xviii] They allege that the distributed drugs are not fit for human consumption.[xix]The authority in conjunction with the National Aids and STIs Control Programme have categorically denied these claims and maintain that they are containing the situation.
Legal analysis of the situation.
Failure by the Government to provide ARVs is not only a direct violation of the right to health[xx], but also that of the General Comment No.14 which provides a normative context of this right. It states that the right to health must be understood as right to enjoyment of health care services.[xxi] Provision of ARVs is one of these services. The Health Act obligates the government to mobilize financial resources to ensure uninterrupted access to quality health services.[xxii] The County governments are also responsible for the co-ordination of health services within the counties.[xxiii]
The ARV shortage also violates the HIV/AIDS Prevention Control which obligates the Government to ensure their access at affordable prices.[xxiv] Failure by KEMSA to distribute ARVs is a direct violation of the Health Act which obligates it to procure health products at the county referral level. [xxv] If the ARVs distributed were toxic, the Government violated the Guidelines for Good Distribution Practices for Pharmaceuticals as stipulated by the Pharmacy and Poisons Board. The National Government has also undermine its responsibility to co-ordinate the development of standards of quality health service delivery.[xxvi]
ARVs are part of Kenya’s Essential Medicines List of 2019[xxvii]as well as the Essential Medicines List of the World Health Organization.[xxviii] Essential Medicines are those that satisfy priority healthcare needs and are chosen due to their public health relevance.[xxix] Consequently, states have the responsibility to ensure their uninterrupted access. The shortage of ARVs is a threat to public health and should not be tolerated any longer.
Author: Gladys Kihara
 Ibid, note 1.
 Muthoni Waweru, “Report shows 1.5 million people living with HIV/AIDS in Kenya,” <https://www.capitalfm.co.ke/news/2020/12/report-shows-1-5-million-kenyans-living-with-hiv/> accessed on 30th April, 2021.
 Economy, “USAID cited for deals with blacklisted firm,”< https://www.businessdailyafrica.com/bd/economy/usaid-cited-deals-with-blacklisted-firm-3355042> accessed on 30th April, 2021.
 Angela Oketch, “Corruption cases cost Kemsa contract with USAID,” < https://www.msn.com/en-xl/africa/other/corruption-cases-cost-kemsa-contract-with-usaid/ar-BB1gbib5> accessed on 30th April, 2021.
 Tom Odula, “HIV drugs run short in Kenya as people lives at risk,” < https://apnews.com/article/health-africa-kenya-coronavirus-993dd73a6aa659d8886bc4b7c92bd2d5 > accessed on 30th April, 2021.
 Caroline Wambui, “Treasury approves tax exemption on ARVs,”< https://www.standardmedia.co.ke/health/health-science/article/2001408714/treasury-approves-tax-exemption-on-arvs > accessed on 30th April, 2021.
 Jacinta Mutura, “Broke counties hit by HIV drugs shortage,” < https://www.standardmedia.co.ke/health/health-science/article/2001408873/broke-counties-hit-by-hiv-drugs-shortage > accessed on 30th April, 2021.
 Tom Odula, “HIV drugs run short in Kenya as people say lives at risk,” < https://apnews.com/article/health-africa-kenya-coronavirus-993dd73a6aa659d8886bc4b7c92bd2d5 > accessed on 30th April, 2021.
 Sophie Njoka, “Mombasa sex workers up in arms over shortage of ARVs,” < https://www.pd.co.ke/news/mombasa-sex-workers-up-in-arms-over-shortage-of-arvs-72966/ > accessed on 30th April, 2021.
 John Muchangi, “First batch of ARVs dispersed to end shortage,” < https://www.the-star.co.ke/news/2021-04-18-first-batch-of-arvs-dispatched-to-end-shortage/ > accessed on 30th April, 2021.
 The counties include Kiambu, Embu, Nairobi, Kajiado, Kirinyaga and Nyeri.
 Ibid, note 21.
 Samuel Musita, “KEMSA dismissed claims of ARVs shortages in counties,” < https://www.kbc.co.ke/kemsa-dismisses-claims-of-arvs-shortage-in-counties/ > accessed on 30th April, 2021.
 Allan Kisia, “No toxic ARVs given out in Kenya- Aids experts,” < https://www.the-star.co.ke/news/2021-05-02-no-toxic-arvs-given-out-in-kenya-aids-experts/ > accessed on 30th April, 2021.
 Article 43(1)
 General Comment No.14, Para. 9.
 Health Act, Section 15(p)
 Ibid, Section 20(c)
 HIV/AIDS Control and Prevention Act, Section 19(2).
 Health Act, Section 67(3).
 Ibid, Section 15(k).
 Ministry of Health, Kenya Essential Medicines List of 2019.
 21st WHO Model List of Essential Medicines List of 2019.
 Muhammed Atif, Dalia Dawoud et al, “World Health Organization essential medicines list and its impact on improving the use of medicines, (April 2019), Elsevier < https://www.researchgate.net/publication/332522940_World_Health_Organization_essential_medicines_list_and_its_impact_on_improving_the_use_of_medicines > Accessed 5/14/2021