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Health is a key aspect of our lives and of those we care about. Health includes physical and mental health. Naturally this covers the timely and appropriate provision of medical care – but it also takes into account the underlying determinants of health, such as:
This is the understanding of the right to health under international human rights law (reflected in the 2010 Kenyan Constitution), which takes a broad and purposive approach to the health of individuals and communities.
The right to health is a human right. It is wide-ranging, and includes the following:
These rights may be enforced in Kenyan courts; regional courts such as the African Court on Human and Peoples’ Rights; international courts and tribunals such as the United Nations Commission on Human Rights, which Kenya is a member of; or through campaigns.
This guide will give you an introduction to help you enforce the right to health for you and others in your community. To do this, the guide will look at:
The right to health is recognised in various sections of the Kenyan Constitution. These include the following:
The Constitution of Kenya, 2010
Article 43(1)(a) & (2)
- Every person has the right—
- to the highest attainable standard of health, which includes the right to health care services, including reproductive health care … …
- A person shall not be denied emergency medical treatment.
This is the key provision of the Kenyan Constitution regarding the right to health. Kenyan citizens are entitled to enforce this right in the Kenyan courts if their right to health has been denied, violated or threatened.
Every child has the right … to basic nutrition, shelter and healthcare
A person with any disability is entitled…to reasonable access to all places… to use Sign language, Braille or other appropriate means of communication; and to access materials and devices to overcome constraints arising from the person’s disability.
The State shall take measures… to ensure that the youth… are protected from harmful cultural practices and exploitation.
The State shall… ensure that minorities and marginalised groups… have reasonable access to water, health services and infrastructure.
The State shall take measures to ensure that the rights of older persons… to receive reasonable care and assistance from their family and the State.
The above-mentioned sections of Articles 53-57 of the Kenyan Constitution provide more concrete application of the right to health for different people groups. These rights are enforceable in the Kenyan courts. In addition, the Constitution requires the State to implement laws and policies to achieve progressive realisation of the right to health (Article 21(2) of the Kenyan Constitution).
As with all human rights, this means that people have entitlements (i.e. things they are owed) under the right to health and the government has duties (i.e. things it must do) to secure such entitlements.
There is no right to be healthy, as this is partly due to individual lifestyle choices. Instead, there is a right to enjoy facilities, goods, services and conditions necessary for the highest attainable standard of health.
The right to health contains broad entitlements to:
(1) Access to healthcare and services; and
(2) conditions which make it possible to live a healthy life.
Access to healthcare and services
In practical terms, the right to health under the Kenyan Constitution means that you should expect:
The Kenyan government is therefore required to take positive steps towards:
Conditions which make it possible to live a healthy life
The second aspect of the right to health under the Kenyan Constitution is that you are entitled to conditions which make it possible to live a healthy life. This overlaps with other human rights and involves the following:
Here, too, the Kenyan government is required to take steps that include the following:
It is important to bear in mind that where these rights require the Kenyan government to spend money or deploy other resources, the government is entitled to balance these demands with other duties regarding the expenditure of the resources at its disposal. Therefore those rights are not absolute – they are better understood as duties upon the Kenyan government to work towards the outlined goals.
However, this does not mean that the Kenyan government doesn’t have immediate and positive duties. It must make every possible effort, within available resources, to realise the right to health in a concrete way without delay. Though the Kenyan government may have resource constraints, some of the obligations that it and Kenyan public authorities owe take effect immediately. For example:
We deal with each of these in the sections which follow.
The first stage of considering a legal claim under the right to health is considering whether you are currently not enjoying any of these entitlements.
If you are not, this might be because your government is not fulfilling its legal obligations under the right to health. We deal with this in the next section of this guide.
Litigating the right to health: the international experience
(A guide for lawyers)
- Litigation of the Right to Health and Access to Justice Issues
One of the main considerations that ought to be made in the litigation of positive duties that arise from the right to health is access to justice challenges that inhibit many vulnerable and disadvantaged persons and groups in a society from making claims on the violation of their right to health. A major concern in the litigation of this right, like other social and economic rights, is that the legal process may end up favouring relatively well-off individual claimants who are able to afford seeking a legal remedy and who consequently benefit through the receipt of adequate reparation in terms of delivery of the right sought. From the foregoing, litigation then runs the risk of reinforcing status-based inequality.
Octavio Ferraz, writing in relation to the Brazilian context, raises two important apprehensions about individual litigation in relation to the right to health. First, he states that, if individual legal remedies include entitlement of individuals to satisfaction of all their health needs including advanced treatment, irrespective of cost, this will deplete scarce resources required to meet health needs of the whole population and thus is not a desirable approach.Expounding on the harms of exorbitant reparations for individual claimants Bilchitz states that such an approach ‘could preclude spending on other important socio-economic services and lead the entire budget of a country to be absorbed by expenditure’ on just one socio-economic right. It would thus affect the realisation of other less expensive needs such as provision of food and basic housing.
Second, Ferraz argues that individual right to health litigation is likely to worsen inequalities since access to courts is mostly disposable to people whose health or other conditions ‘are already comparatively better due to their better economic conditions and hence better access to other so-called “social-determinants” of health (such as education, housing and nutrition)’. Therefore, public interest litigation, where a case is instituted to represent the rights of a class or group of persons, is a more desirable route to take. Nevertheless, there is also space for courts to make declarations that the aspect of the right to health litigated in an individual claim also applies to similarly situated persons not before the court and should be guaranteed to them as well on the basis of equality.
- A Rights-based Approach to the Litigation of the Right to Health
Many courts have approached the right to health by looking at its interconnectedness with other rights such as the right to life. This is particularly so in countries with constitutions that do not include a specific right to health such as India and Canada. For example, in the Canadian case of Chaoulli v Quebec (2005), the court made its judgment by relating the right to health with the right to life under section 7 of the Canadian Charter of Rights and Freedoms. The case related to a challenge of a legislative provision prohibiting private medical insurance for services that were already being provided under public healthcare insurance, in the face of long waiting lists under the Quebec public health system. In the case, the appellants argued that they had suffered greatly from having to wait for a long time, due to the long waiting lists under the Quebec public health system, to get a heart surgery and hip replacement. The Supreme Court held that considering the unreasonable waiting periods for public healthcare services, the legislation violated the right to life and personal security of the appellants under section 7 of the Canadian Charter of Rights and Freedoms.
Also, in Paschim Banga v State of West Bengal (1996), the issue before the Indian Supreme Court was whether inadequate medical facilities for emergency treatment constituted a denial of the right to life under section 21 of the Indian Constitution. The Court found in the affirmative and held that the Government could not escape its responsibility, on account of financial constraints, to provide emergency treatment.
Aside from the right to life, courts have also linked the right to health with other rights such as equality in holding the State accountable. This was so in the case of Eldridge v British Columbia (1997) where the court applied section 15 of the Canadian Charter of Rights and Freedoms on the right to equality. The case involved deaf patients who were challenging the government’s failure to provide sign language interpretation in the provision of health care. The court held that the right to equality places obligations on governmental actors to allocate resources to take special measures to ensure that guaranteed rights are enjoyed by vulnerable and disadvantaged groups for them to get the full advantage of public benefits.
Indeed, equality can help bypass resource-based challenges by insisting that aspects of socio-economic rights like the right to health already being provided to some people be extended to similarly situated persons on the basis of equality. For example, if the right to healthcare is provided to all but cannot be accessed by those who are deaf due to the absence of sign language interpreters, as was the case in the above-mentioned Canadian case of Eldridge, it would require that this be corrected so that deaf persons can equally enjoy the right. Absence of which would amount to discrimination.
- A Duty-Based Approach
Litigation of the right to health can also be approached from this perspective. Having a constitutionally guaranteed right to health recognises the fact that the right to health contains both freedoms and entitlements. This is also highlighted in the UN General Comment No. 14 on the right to the highest attainable standard of health. Freedoms may include, the right to control one’s health which incorporates the right to be free from non-consensual medical treatment and experimentation. Entitlements include the right to a system of health protection that provides equality of opportunity for people to enjoy the highest attainable standard of health. This gives rise to both positive and negative duties, as earlier explained. These duties can be summarised using the tripartite terminology of obligations used in General Comment No. 14 whereby, States parties must respect (abstain from interference), protect, (prevent third parties from interfering), and fulfil the right to health by adopting appropriate measures. These obligations are also recognised in Article 21 of the Kenyan Constitution which provides that the State and every State organ is to ‘observe, respect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights’ including the right to health.
In the South African Constitutional Court decision in Soobramoney v Minister of Health (Kwazulu-Natal) (1997), the question arose as to what extent the duty to respect the individual’s right to health had been breached by the State in refusing the appellant access to medical treatment. In the case, the Court rejected the appellant’s claim to a right to have dialysis treatment while accepting the State’s argument that the right to health is subject to resource limitation, and that a public hospital thus has the right to allocate limited resources like dialysis machines. The hospital was allowed to prioritise persons who had treatable renal failure over those who suffered irreversible illness. The Constitutional Court held that, considering circumstances in the case, the hospital had applied criteria compatible with the Constitutional provisions and used rational grounds for their decision. The selection process was therefore not considered discriminatory because only health grounds were used to determine who would receive treatment.
- The Reasonableness Approach
Article 12(2) of the International Covenant on Economic, Social and Cultural Rights requires that steps be taken by State Parties in order to achieve the full realisation of the right to health subject to progressive realisation and resource availability. This is also the stand that is taken by states. For example, the South African Constitutional Court has established the standard of reasonableness, which considers the State’s available resources and the fact that socio-economic rights, like the right to health, cannot always be realised immediately but should be realised progressively.
However, retrogressive measures are not permissible. The UN Special Rapporteur on the right to the highest attainable standard of health, Paul Hunt, in his 2006 Report, notes that progressive realisation means that States are expected to do better next year than they are doing today, while also taking into consideration the resource availability which varies from low or middle-income countries.
Section 27 of the South African Constitution recognises the right of access to health-care services. Also, the State is required to take reasonable measures, within its available resources, to achieve the progressive realisation of this human right. The South African Constitutional Court has applied the reasonableness criteria in determining whether the government has taken reasonable measures within its available resource to achieve progressive realisation of the right to health.
One of the landmark cases on the right to health in South Africa is that of Minister of Health v Treatment Action Campaign (2002), which concerned State provision of Nevirapine, an antiretroviral drug used to prevent mother-to-child-transmission (MTCT) of HIV. The Constitutional Court confirmed that the Government must ‘act reasonably to provide access to the socio-economic rights identified in the Constitution on a progressive basis’ and it ordered the authorities to ‘devise and implement, within its available resources, a comprehensive and co-ordinated programme to recognise progressively the rights of pregnant women and their new-born children to have access to health services to combat MTCT of HIV’. The Treatment Action Campaign and doctors also argued that it was unreasonable to refuse to provide medicine that was safe and had no cost implications.
To some extent, the Canadian Supreme Court in the case of Chaoulli v Quebec (2005), mentioned above, also applied the standard of reasonableness. The justices held that, the absolute ban on private insurance was deemed to be too extreme a measure to fulfil the government of Quebec’s objective of preserving the public health insurance system and thus was not a reasonable limit of the rights of the applicants. The system was also said to be unreasonable because it forced the applicants to wait unfairly long for care.
- Minimum Core Approach Versus Minimum Obligations Approach
Arguably, another possible way of approaching the litigation of the right to health is either through the lenses of the minimum core obligation of States or through a list of minimum obligations a State is required to provide.
The Committee on Economic Social and Cultural Rights (CESCR) in its General Comment No. 3, confirmed that States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant, including essential primary health care. It stated that this refers to the minimum basic resources that are necessary to allow individuals to be free from threats to their survival and to achieve a minimal level of well-being. Thus, according to the CESCR, States Parties to the ICESCR should comply with obligations that are twofold. First, States Parties to the Covenant have the obligation to progressively realise the fulfilment of the Covenant’s rights. Second, States Parties also have immediate obligations under the Covenant, such as the prohibition of discrimination or the obligation to take deliberate, concrete and targeted steps towards fulfilling the right to health.
Several commentators argue that it is difficult to realise a minimum core obligation in the context of health care. For instance, David Bilchitz contends that in relation to healthcare, the imposition of such an obligation would involve not only primary health care, but also the provision of expensive drugs and treatment such as dialysis as was the issue in the South African case of Soobramoney v Minister of Health (1997). He adds that, the imposition of such an obligation could preclude spending on other important socio-economic services and lead the entire budget of a country to be absorbed by health-care expenditure. It would also affect the realisation of other less expensive needs such as provision of housing and food.
In the case of Soobramoney, Justice Sachs quoted with approval a United Nations Educational, Scientific and Cultural Organisation (UNESCO) publication stating that the provision of equal access to high technology care, even in industrialised nations, ‘would inevitably raise the level of spending to a point which would preclude investment in preventive care for the young, and maintenance care for working adults’ (Para. 53 of the judgment).
Instead, it may be appropriate to give the parameters of the right or to list core obligations which States are to fulfil as an approach to litigation of the right to health. In General Comment No. 14, the CESCR developed ‘core obligations’ which are those obligations in relation to the right to health without which the ICESCR’s rights would be devoid of any meaning and relevance and are therefore non-derogable. These include, among others, obligations on the State to ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalised groups; to ensure access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone; and to provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs.
 Octavio Luiz Motta Ferraz, ‘The right to health in the courts of Brazil: Worsening health inequities?’ Health and human rights 33, 34.
 David Bilchitz, ‘The right to health care services and the minimum core. Disentangling the principled and pragmatic strands: feature’ 7 ESR Review: Economic and Social Rights in South Africa 2, 3.
 Ferraz, 34.
 CESCR, General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), 14 December 1990, E/1991/23 (CESCR 1990).
 David Bilchitz, ‘The right to health care services and the minimum core. Disentangling the principled and pragmatic strands: feature’ (2006) 7 ESR Review: Economic and Social Rights in South Africa 2, 3 & 4.
As explained in the previous section, the Kenyan government has duties to secure your right to health under the 2010 Constitution. This is supported by an international treaty which recognises the right to health: the International Covenant on Economic, Social and Cultural Rights.
As with all economic, social and cultural rights (e.g. the rights to food, water, housing and work), the government’s duties under the right to health can be split into three categories:
These duties are laid out in Article 21(1) of the Kenyan Constitution which states that the State and every State organ has a fundamental duty “to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights”.
The Obligation to Respect
The government must not take action that negatively impacts people’s health. This is often called a negative obligation, as it prohibits the government or public bodies from taking certain actions. Specifically, the Kenyan government is under negative obligations that restrain the State from interfering or doing something that infringes on people’s enjoyment of their right to health.
For example, this means the Kenyan government must not:
The obligation to respect is often one of the easiest obligations to enforce.
For further detail:
(A lawyer’s guide)
Negative duties restrain the State from interfering or doing something that infringes on people’s enjoyment of their right to health. In other words, negative duties ‘protect individuals against intrusion by the State’ and are said to be ‘determinate, immediately realizable, and resource free’. Negative obligations to respect the right to health include:
- the obligation of the government and third-parties to respect equal access to healthcare and for the government to make laws to ensure healthcare providers do not discriminate in provision of the right to health or violate it;
- the obligation of the government to ensure that privatisation of hospitals and medical clinics does not limit people’s access to healthcare, medicines and health services;
- the obligation of the government to ensure that social, religious and cultural practices do not negatively impact people’s right to health;
- for both public and private entities to make and enforce regulations upholding workplace safety;
- the obligation of the government and third-parties to refrain from activities that are harmful to people’s right to health such as environmental pollution and to make and enforce regulations on this.
Notably, the above negative duties are relatively easier to enforce. An Example of case on negative obligations is P.A.O. & 2 others v Attorney General  eKLR:
P.A.O. & 2 others v Attorney General  eKLR
This case illustrates the application of the Kenyan government’s negative obligations in the context of access to affordable essential drugs and medicines, including generic drugs and medicines. The case raised important issues relating to the constitutional right of persons living with HIV/AIDS to the highest attainable standard of health. It challenged the constitutionality of sections 2, 32 and 34 of the Anti-Counterfeit Act, 2008. These provisions were said to have the likelihood to adversely affect access to affordable essential drugs and medicines, especially generic anti-retroviral medication (ARV) for persons living with HIV/AIDS. The claimants argued that in severely limiting access to affordable essential drugs and medicines, the above-mentioned sections of the Anti-Counterfeit Act violated their right to life, human dignity and health contrary to Articles 26(1), 28 and 43(1)(a) of the Kenyan Constitution respectively.
The main argument raised by the claimants was that, in adopting a broad definition of counterfeit goods which included generic medication, the Act was likely to substantially increase the costs of HIV/AIDS medication, making them unaffordable to poor, vulnerable and marginalised individuals who rely on cheap generic medication. In addition, the claimants argued that the restriction of access to generic medication would excessively limit their rights contrary to Article 24(2)(c) of the Constitution, which states that limitations of rights should not derogate from the core or essential content of the rights.
In her judgment, Justice Mumbi Ngugi considered the economic and social context of the HIV/AIDS pandemic in Kenya, especially the reality that it constitutes a serious threat to life and health of many Kenyans and is a major challenge to socio-economic development. The judge also noted that many of those living with HIV/AIDS in Kenya are poor and financially incapable of accessing branded ARV medication, and so relied on generic medication which was cheaper and more accessible to them. The social and economic situation of those living with HIV/AIDS or affected by the pandemic, therefore, had to be considered in evaluating the constitutionality of the disputed provisions of the Anti-Counterfeit Act. It was acknowledged that should the implementation of the provisions have the effect of limiting access to generic ARV medication, this would threaten the health and lives of the claimants and other similarly placed disadvantaged individuals in violation of their constitutional rights.
Importantly too, the judge held that access to medication was subsumed in the underlying determinants of health. Therefore, the State’s failure to put in place measures to ensure access to medication was said to be a violation of the right to health of its citizens. Justice Mumbi Ngugi, referring to both the negative and positive state obligations that flow from the constitutional right to health, stated that:
The State’s obligation with regard to the right to health therefore encompasses not only the positive duty to ensure that its citizens have access to health care services and medication but must also encompass the negative duty not to do anything that would in any way affect access to such health care services and essential medicines. Any legislation that would render the cost of essential drugs unaffordable to citizens would thus be in violation of the State’s obligations under the Constitution. (Paragraph 66)
The judge, therefore, held that the definition of counterfeit as contained in section 2 of the Anti-Counterfeit Act was likely to be read to include generic medication, and was hence likely to adversely affect the manufacture, sale and distribution of generic equivalents of patented drugs. This would affect the availability of generic drugs in Kenya, with adverse consequences to the right to health, dignity and life of the petitioners and similarly placed individuals. The Court thus directed that it was obligatory on the State to make the necessary amendments to the Anti-Counterfeit Act considering its constitutional obligation to ensure access to the highest attainable standard of physical and mental health for its citizens.
To prove a violation in your case, you must:
first, show there is a violation – in other words, you have to show that the government’s failure to honour its duties has negatively impacted your health (see the list above for examples).
second, show that there is no justification for the government’s conduct. Not every government interference with your right to health is a violation of the government’s obligations. An interference will only amount to a violation when it cannot be justified.
Example – SERAC v Nigeria
In Nigeria, State owned oil companies and the military that supported them polluted rivers and lands in the Niger Delta through massive oil spills. This destroyed the local people’s livelihoods, limiting their access to clean water and fish. This negatively impacted the physical health of local communities.
After failing to get justice in national courts, local people, represented by international and Nigerian civil society organisations brought the case to the African Commission on Human and People’s Rights. After reviewing the evidence, the Commission considered that the government violated the obligation to respect the right to health (recognised in the African Charter on Human and Peoples’ Rights) by unjustifiably interfering with their health and well-being.
Although the oil companies’ operations were authorised by national law and pursued the aim of economic development, the Commission considered that the interference (i.e. the negative impact on peoples’ health) caused by the oil companies’ activities was disproportionate to the objective pursued because of the huge impacts they had on local peoples’ health.
This led to later judgements in national courts awarding compensation to other victims of oil spills in similar situations.
SERAC was a landmark case involving violations of thousands of peoples’ right to health. Successful cases have also been brought for smaller issues in other countries. Whether the government’s actions affect 1000 people or 1 person, they cannot unjustifiably interfere with your right to health.
The Obligation to Protect
The Kenyan government must take action to ensure that the State, State organs, and “private actors” (e.g. businesses and other individuals) do not negatively impact the health of Kenya people. This is called a positive obligation, as it demands that the Kenyan government and Kenyan public authorities take certain protective actions.
For further detail:
(A guide for lawyers)
Positive duties require ‘protection by the State from want or need’ and are regarded as being ‘indeterminate, programmatic, and resource intensive’. They require the State to act, which usually involves the commitment of financial resources and are, therefore, core elements of national policy. Positive obligations to protect the right to health include:
- the need to ensure that all persons have equal access to health services provided by the government or third-parties; and
- to protect people from infringements of their right to health by state institutions and third-parties.
Since positive duties relating to the right to health mostly require action, which may mean spending money, rather than inaction, they are said to be indeterminate, meaning that it is difficult to determine the content of the right (e.g., does the right to health mean that every person is entitled to free medication no matter the cost? If so, would this deplete the resources required for provision of other rights?) and ensuing obligations of it?
This means that the Kenyan government must, for example:
make and enforce regulations protecting the environment from pollution by businesses which could harm your health.
Example – VMK v Catholic University of Eastern Africa (CUEA)  eKLR
In this case, the claimant had experienced various forms of discrimination at the work place for a period of 7 years for reasons of her gender, pregnancy and HIV/AIDS status. The medical examination for her employment suitability conducted at her employer’s infirmary had included a HIV test that was done without her consent. Yet, this was not one of the tests that were to be conducted as laid out in the Medical Examination form she was given by the Personnel department. She was also not counselled prior to the disclosure of the results to her and her employer went ahead to share the results with her colleagues and superiors in the Human Resource Department. In addition, she was offered a one year contract without any allowance or medical cover, which was given to her colleagues, and was subsequently given progressively shorter contracts with unequal terms due to her HIV positive status. She was even denied paid maternity leave and her employment was finally terminated upon return from unpaid maternity leave.
The Court held that the employer’s actions towards the claimant were discriminatory as they were solely based on the claimant’s HIV status. The claimant was awarded both general and exemplary damages totally Kshs. 6,971,346.
This case is a good example of the enforcement of the obligation to respect, protect and fulfil a person’s fundamental rights to health, among others, without discrimination.
These are examples of where governments, through the courts, carrying out their obligation to protect, stopped companies/institutions from interfering with people’s right to health.
This means that if you believe that the State or a public or private entity, through certain acts or omissions, has affected your right to have your health respected, you may be able to bring a claim for the government, through the courts, to enforce its obligation to protect you.
To prove a violation you have to show the following:
First, that a company (or other private actor) has interfered with your right to health – in other words, you have to show that its actions have negatively impacted your health.
Second, that the Kenyan government did not take reasonable measures to prevent, investigate, punish or remedy the interference.
Example – SERAC v Nigeria
In the SERAC case, the impacts on the people in the Niger Delta’s health were also caused by private oil companies, such as Royal Dutch Shell. As well as finding a violation of the obligation to respect, the Commission found a violation of the obligation to protect the right to health.
Instead of regulating private oil companies and making sure their operations were safe, the Nigerian government helped them cover up oil spills and used violence to stop local communities from protesting. This was a clear violation of their obligation to protect the right to health of local communities.
Remember that it is really important to identify the wrongdoers precisely, and to produce evidence of their acts and of how these caused the harm in question.
The Obligation to Fulfil
The government must take action to ensure people have access to healthcare and enjoy conditions which make it possible to live a healthy life. This is also a positive obligation, demanding that the government take action.
For example, this means the government must:
To prove a violation you have to show:
First, you do not have adequate access to healthcare or enjoy conditions needed for a healthy life.
Second, the government has not taken reasonable steps (see the list above) to help you get access to healthcare or enjoy conditions needed for a healthy life.
Example – Minister of Health v Treatment Action Campaign
In South Africa, millions of people suffering from HIV were denied access to antiretroviral drugs (essential to combat HIV) by the government. Affected communities and civil society organisations rose up and demanded the government provide them with access, taking their case to the South African Constitutional Court.
The Constitutional Court decided that by not taking action to make the drugs available, the government was violating its obligation to fulfil the right to health, recognised in the South African Constitution.
The Court demanded that the government provide the drugs to hospitals across South Africa and ensure people suffering from HIV have access.
This guide will now give examples of ways in which your right to health may be violated.
As we have explained earlier, the 2010 Kenyan Constitution guarantees every person a right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care, and emergency medical treatment.
This is the basis of your right to health. This right may have been breached in a number of different ways. In this section of the guide we outline the more common ways in which this may have occurred. In particular, we address two particular aspects of the right to health:
(Note that this guide focuses on the provision of healthcare by the Kenyan government and by public authorities and companies on behalf of the government. However, your right to health may also have been affected by shortcomings in a range of other factors that can help us lead a healthy life. These include:
For example, you may have a claim based on your right to health if your health has been impacted by an unsafe water source, or if your workplace has high levels of airborne pollution. Problems like this can seriously degrade your health, and they may give rise to claims against the Kenyan government or other entities. These issues are not yet covered in this guide.)
In order to live a healthy life, people need access to necessary healthcare facilities (e.g. hospitals and clinics) and to healthcare services (e.g. treatments provided by trained medical staff).
What does this mean in practice?
Common examples of issues affecting access to healthcare include:
Lack of Public Funds to Provide Healthcare in Your Area
In parts of Kenya with lower than average levels of economic development, there may be inadequate access to healthcare because the public authorities do not have the resources to provide access to quality healthcare for the local population. This means people have to rely on expensive private healthcare, charities or community healthcare services, or go without access to healthcare entirely.
If these problems affect the provision of healthcare in your area, you should seek to understand the background to this, and gather evidence of the following issues:
Ultimately the availability of resources for the provision of heathcare is key. Legally, if a country tries its best to provide access to healthcare but genuinely does not have enough resources to do so, it will most likely not be violating the right to health.
Kenya spends less than 5% of its gross domestic product (GDP) on healthcare. This proportion is consistent with other similar countries. However, a concern with Kenya’s expenditure on healthcare is that it has steadily been declining in recent years. This may comprise a basis for asserting that the Kenyan government is not taking all the steps at its disposal to ensure the highest attainable standard of healthcare for its citizens.
Even where Kenyan authorities have the resources to provide access to healthcare, resources which could go to healthcare are sometimes wasted through corruption.
Where healthcare systems exist, they can also be vulnerable to corruption. There is a risk of bribes, informal payments, and staff not turning up to work despite being paid. Even where regulation exists, regulators can ask for bribes in order to not report misconduct, deregulation allows for even more corruption. All these processes can cause healthcare to become less accessible to poorer communities.
If this can be proven, you could bring a claim that the Kenyan government is violating your right to health.
You are entitled to the provision of health services, goods and facilities without any discrimination. Non-discrimination is a key principle in human rights and is crucial to the enjoyment of the right to the highest attainable standard of health.
Discrimination means any distinction, restriction or exclusion that is made on the basis of your gender, religion, ethnicity or other “protected characteristics” that adversely affects your recognition, enjoyment or exercise of human rights and fundamental freedoms. For example, you may find that you and others in your ethnic group have access to fewer health services, or receive less health information, than the general population in Kenya.
The Kenyan government has an obligation to prevent and eliminate discrimination on all of these grounds, and to ensure equality to all Kenyan citizens in relation to access to healthcare.
Poor quality healthcare
Where public healthcare systems exist, the standard of healthcare provided can be of poor quality. Healthcare systems are often lacking in infrastructure, staff and effective administration.
It is not enough for the Kenyan government to argue that it ensures that there some healthcare services are available. A failure by the Kenyan government to provide healthcare of an adequate quality can also be the basis of a legal claim.
2. Access to medicines and vaccinations
Lack of access to vaccinations
If you think you need a vaccination to protect against disease that affects your locality in Kenya, but the Kenyan government and public authorities are not providing access to vaccinations or there are religious/cultural/family obstacles to accessing vaccinations, consider taking legal action address this problem.
Cost of medicines
Essential medicines are those that satisfy the priority healthcare needs of the population, which are intended to be available at all times, in adequate amounts, at a price the individual can afford. A list of essential medicines is published in the WHO’s model list of essential medicines, which is an inventory that is updated every two years and tailored to national or regional health needs. The right to health provisions in the Kenyan Constitution implicitly obliges the Kenyan government to do everything that it can, within their available resources, to make essential medicines accessible and affordable.
However, requiring the government to provide access to other medicines that you need can be more difficult. The courts recognise that medicines (especially when newly released) can be protected by longer-term patents and can be expensive. This is not just profit-making by the pharmaceutical companies; considerable funds are required for the manufacturing, the cost of research and development of a drug, the clinical trials, and distribution. For these reasons, billions of people still face tremendous hardships in accessing the medicines they need.
Making essential medicines available where they are needed
As we have explained previously, the Kenyan government is obliged to use its resources in a fair and diligent manner to provide the highest attainable standard of right to health for the people of Kenya. Provision of healthcare and the supply of medicines must be undertaken on a transparent and non-discriminatory basis.
If the government disregards these obligations and seeks to make medicines available in some areas of the country (or to some people groups) but not others, it will be vulnerable to a legal claim in the Kenyan courts unless it has a proper justification for such an action. In a 2001 decision the Pretoria High Court decided that the government of South Africa had improperly discharged its duties relating to the supply of medicines when it decided without good reason against a national distribution of a key retroviral drug. The ruling was upheld by the Constitutional Court. If you can show that Kenyan public authorities may have taken illogical or unfair decisions regarding the availability of medicines, you may be able to challenge the decision in the Kenyan courts.
This guide will now explain how you can enforce your right to health and hold the government accountable for failing to meet its obligations.
Using the Kenyan courts
In the earlier sections of this guide we have outlined the laws that protect your right to health, and we have explained some of the ways in which your rights may have been violated. How should you seek to enforce your right to health, if it has been breached?
The good news is that the courts in Kenya and in other parts of the world are becoming more familiar with human rights regarding health. As a result, litigation involving health claims is becoming more common around the world as people step up, enforce their rights and seek accountability from governments and private persons.
Court litigation is not the only solution, but it can play an important role in advancing the right to health. Right to health claims can achieve:
To enforce your rights through litigation, you must find a legal right which can be enforced by a court. It will be most straightforward for you to assess your rights under Kenyan law, and to prepare to litigate in the Kenyan courts. However, as we explain below, there are alternatives.
This means you must:
These steps are connected. The law that recognises your right to health will often influence where you can go to enforce that right, who you can enforce it against and who can bring a claim.
This guide will now take you through the different types of law that confer health-reated rights on you. It then explains where you can enforce them and who you can enforce them against.
Claims under the Kenyan Constitution
As we have explained earlier, the Kenyan government has duties to secure your right to health under the 2010 Kenyan Constitution. This is supported by an international treaty which recognises the right to health: the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Your rights under the Constitution will often be the most direct way for you to secure justice for a health-related issue. Kenyan citizens are entitled to institute proceedings in the Kenyan courts claiming that their constitutional health-related rights have been denied, violated or threatened.
Claims based on Kenya’s anti-discrimination laws
Claims based on Kenyan laws on other specific issues affecting health
Your right to health is recognised in international and regional human rights law, as we explain in later sections of this guide. However, because it is also recognised in the Kenyan Constitution, the best starting point is to consider whether you are able to rely on these constitutional rights and use them to secure justice in the Kenyan courts.
A. What are the sources of my rights?
The Constitutional Right to Health
Your right to health is expressly recognised in Kenya’s national constitution.
Article 43 of the Kenyan Constitution:
- Every person has the right .. to the highest attainable standard of health, which includes the right to health care services, including reproductive health care
This is based on Article 12 of the International Covenant of Economic, Social and Cultural Rights.)
For further detail:
(A guide for lawyers)
This standard of progressive realisation is relatively new to Kenyan jurisprudence. Hence, attempts to give it meaning and develop it further have mostly referred to the understandings of it given by the Committee on Economic, Social and Cultural Rights (CESCR) in relation to the similarly worded but non-identical provisions in Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This requires each State Party to the Covenant to take steps ‘to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant’.
The CESCR has noted that the standard of progressive realisation does not leave a socio-economic right devoid of any meaningful content. As such, the whole obligation is not postponed. First, the state has the immediate obligation to take deliberate, concrete and targeted steps towards the realisation of socio-economic and not to take any retrogressive measures. This duty requires the development of policies, strategies and programmes to implement socio-economic rights and hence has no great resource implications. Second, there is an immediate obligation of non-discrimination meaning that the provision of socio-economic rights should not be done in a discriminatory manner.
Article 43 of the Constitution also provides that no person should be denied emergency medical treatment.
Articles 53-57 of the Constitution set out specific health-related rights to be provided to children, women, persons with disabilities, the youth, members of minority or marginalised communities and the elderly.
The International Covenant on Economic, Social and Cultural Rights (ICESCR), along with various other international and regional human rights instruments ratified by Kenya, complement these provisions of the Constitution.
For further detail:
(A guide for lawyers)
The ICESCR, along with various other international and regional human rights instruments ratified by Kenya, complement provisions entrenched in the Constitution. Accordingly, Articles 2(5) and (6) of the Constitution include customary international law as well as international treaties, and conventions ratified by Kenya within the sources of Kenyan Law. Article 2(5) provides explicitly that ‘general rules of international law shall form part of the law of Kenya’ and Article 2(6) further states: ‘Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution’. Therefore, because socio-economic rights like the right to health are new in Kenyan legal discourse, international human rights instruments ratified by Kenya have been and continue to be instrumental in fleshing out the content of these rights.
The Kenyan Supreme Court has affirmed reference to international human rights instruments ratified by Kenya in the interpretation of the 2010 Constitution which it notes, generously adopts the language of these instruments.
Because the right to health is recognised in the Kenyan constitution, you can go to the Kenyan courts to enforce your right to health and hold the government accountable.
Kenya’s courts can overrule the government’s policies and regulations if any of them violate the constitutional right to health – in other words, if they violate the government’s obligations to respect, protect and fulfil your right to health. If the court finds that there has been a violation, it can order the government to take remedial action.
Example – Viceconte, Mariela c. Estado Nacional (Ministerio de Salud y Ministerio de Economía de la Nación) s/ Acción de Amparo
In Argentina, people suffering from Argentine Hemorrhagic Fever who were unable to get vaccines and treatment used national courts to enforce the constitutional right to health.
The court forced the government to increase spending on healthcare, provide vaccinations and created a schedule for the government to distribute the vaccinations across the country.
Similar decisions have been reached by courts in other countries.
For further detail:
(A guide for lawyers)
Setting out guidelines on how to manage resource implications of implementing socio-economic rights like the right to health, Article 20(5) of the Constitution requires that:
In applying any right under Article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles––
- it is the responsibility of the State to show that the resources are not available;
- in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and
- the court, tribunal or other authority may not interfere with a decision by a State organ concerning the allocation of available resources, solely on the basis that it would have reached a different conclusion.
However, socio-economic rights, including the right to health, are not absolute and are subject to the limitations clause under Article 24 of the Constitution, which provides that:
..A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including––
- the nature of the right or fundamental freedom;
- the importance of the purpose of the limitation;
- the nature and extent of the limitation;
- the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
- the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
Other Human Rights recognised under Kenyan law
Even though the right to health is recognised in in Kenya’s Constitution, there are also other human rights that can be used to enforce your right to health.
For example, the right to life and the right to freedom from torture and inhuman and degrading treatment prohibits your government from acting or failing to act in a way that causes risk to your life or severe physical and mental suffering.
Example – Mehmet Senturk and Behir Senturk v Turkey
Despite the European Convention on Human Rights not recognising the right to health, the right to life was used to hold the Turkish government accountable for public hospitals complete failure to provide a pregnant woman with life-saving treatment because she did not have enough money.
Although this case concerned regional human rights law, it shows how the other rights can be used to protect your health in severe cases.
Another example is the right to non-discrimination that protects you from being discriminated against all matters relating to healthcare (see the section on Discrimination later in this guide).
It is also important to note that national human rights protections are influenced by international and regional human rights laws.
B. Where do I bring a claim?
The Kenyan Courts
Claims under the Kenyan Constitution are generally brought in the Kenyan High Court or in a Magistrate’s Court. Which court you choose depends on whether you are seeking financial compensation, and (if so) how much money you are claiming.
If your claim is not for financial compensation, but instead seeks to determine the interpretation of a provision of the Kenyan Constitution, you should file a constitutional petition in the High Court.
If you are claiming financial compensation, the choice of court will depend on how much you are claiming.
Bear in mind that there are different levels of Magistrate’s Court, depending on the amount of any compensation sought.
For further detail:
(A guide for lawyers)
Article 165(3)(b) of the Kenyan Constitution gives the High Court, among other powers, ‘jurisdiction to determine whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened’ and ‘to hear any question respecting the interpretation of the Constitution’.
A civil case claiming that there is a wrongful act or omission that infringes on a person’s right to health and seeking compensation may also be filed in the High Court or Magistrate’s Court. Cases where the amount of compensation claimed is above Ksh. 20 Million are to be filed at the High Court and those where the amount is below Ksh. 20 Million are to be filed in the Magistrate’s Court having the necessary monetary jurisdiction. Monetary or pecuniary jurisdiction means that the power of a court to hear and determine disputes is limited to cases where the amount of money in dispute or compensation claimed does not exceed a certain legally stipulated sum of money. In Kenya, Magistrates’ Courts are divided into 5 courts, each of which has its own monetary jurisdiction as provided for under section 7 of the Magistrates’ Courts Act, 2015.
- the Chief Magistrate’s Court which is the highest Magistrates’ Court hierarchically and has a monetary jurisdiction that does not exceed Ksh. 20 Million;
- the Senior Principal Magistrate’s Court which is second in the hierarchy and has a monetary jurisdiction that does not exceed Ksh. 15 Million;
- the Principal Magistrate’s Court which is third in the hierarchy and has a monetary jurisdiction that does not exceed Ksh. 10 Million;
- the Senior Resident Magistrate’s Court which is fourth in the hierarchy and has a monetary jurisdiction that does not exceed Ksh. 7 Million; and
- the Resident Magistrate’s Court which is fifth in the hierarchy and has a monetary jurisdiction that does not exceed Ksh. 5 Million.
If you are planning to lodge a petition or claim at the High Court, you should be aware that there is a specific division of the High Court that handles these claims: the Constitutional and Human Rights Division. This plays a leading role in addressing issues involving constitutional interpretation and enforcement.
For further detail:
(A guide for lawyers)
As a brief background to the setting up of the Constitutional and Human Rights Division, the former Chief Justice, Willy Mutunga, reorganised and reconstituted the divisions of the High Court in 2011 so that they could work effectively and efficiently in honouring and respecting the spirit of the Constitution. He thus established the Constitutional and Human Rights division of the High Court, which he stated, would be ‘the court of first instance in constitutional cases’.
It is important to file a High Court claim in the correct geographical registry. For example, if an alleged violation of the right to health takes place in Mombasa, a suit should be filed in Mombasa (where the cause of action or violation has taken place) and not elsewhere in the country.
For further detail:
(A guide for lawyers)
Rule 8 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) mandates that ‘Every case shall be instituted in the High Court within whose jurisdiction the alleged violation took place’.
Sometimes you can bring your complaint to a national human rights institution that can launch inquiries or investigations to monitor whether the government is fulfilling its duties under the right to health.
For some detailed general information on where you can bring a claim, see “Where Can I Take Legal Action?”
C. Who can take legal action?
In order to bring a claim in the Kenyan courts for violation of your right to health, you have to prove you have “standing”. This usually means you have been directly affected (or are representing someone who has been directly affected) by the actions or omissions that you are complaining about.
The following people can usually bring a claim:
The person whose health has been negatively impacted (via a lawyer or self-represented)
A person can bring a claim in their own name if they can prove their health has been negatively impacted and there is a law that covers that situation.
You can do this yourself or you can get a lawyer to bring the claim on your behalf.
A group of persons whose health has been negatively affected in a similar way
This is called a class action. A class action is where an individual brings a claim as a representative acting on behalf of a group of people with the same problem.
The decision that the court makes on your situation will usually also apply to all of the other people represented.
Bring a claim as a group can increase public awareness, help solve a problem that impacts many people and reduce the cost of litigation.
Organisations representing persons or groups whose health has been negatively impacted
Sometimes Non-Governmental Organisations (NGOs), civil society organisations or public interest law firms can bring a claim as a representative of persons whose health has been negatively impacted.
This can reduce costs and ensure you have people with expertise bring a claim on an issue that affects you.
For further information on who can bring a claim in public interest litigation, see “Who Can Take Legal Action?”
For further detail:
(A guide for lawyers)
Articles 22 and 258 of the Kenyan Constitution broaden the list of people who may institute court proceedings when a right or fundamental freedom in the Bill of Rights is denied, infringed or threatened. This includes persons acting on their own behalf or on behalf of those who cannot act in their own name, a person acting on behalf of a group or class of persons he/she is a member of, a person acting in the public interest, and an association acting in the interest of its members. This is what is referred to in law as legal standing to institute a case or locus standi.
In addition, a person should have the legal capacity to file a case/petition. For one to have capacity:
- they should have attained the age of majority, that is, be over 18 years old; and
- they must not be declared to be of unsound mind.
Article 260 of the Kenyan Constitution widens the description of a ‘person’ to also include a company, association or other body of persons whether incorporated or unincorporated. Hence these bodies can also file cases/petitions or be sued in their official capacity.
D. Who can I take action against?
The decision about who to bring your claim against (“the defendant”) is very important indeed. You will have to prove that the defendant’s actions were in breach of a duty owed to you, and that this caused the loss. You will also have to show that you would not have suffered the same loss or harm if they hadn’t breached the duty/ies owed to you. You will also need to ensure that the defendant doesn’t have a valid justification for their conduct, and that you will be able to enforce a judgment against them.
If your right to health has been violated, the following questions may help you identify the right persons/entities to take action against:
Claims based on your right to health will often be brought against the Kenyan government or a public authority responsible for provision of healthcare in Kenya on the government’s behalf.
Sometimes the entity which appears to be responsible for the loss that you have suffered may be a company, for example if the Kenyan government has contracted with a company for the distribution of medicines in your area. In such a case, you should take care to check that the company or other entity does owe you a duty relating to your right to health. Simply because the company is performing a government duty does not mean that the company has assumed the obligations of the government towards you; it may well be the case that your claim should be made against the government even though the relevant service provision has been contracted to a company.
For some detailed general information on identifying the persons or entities to take action against, see “Who Can I Sue?”
E. Are there any time limits?
You have to bring your claim within a certain time after the actions or omissions, or the impact on your health, has occurred – this is often called a statute of limitations.
If your claim is to the Constitutional Division of the High Court and you are seeking a remedy based on the interpretation of the Kenyan Constitution, the applicable time limits are as follows. [to follow]
If you are filing a civil claim, based on a private law cause of action (for example, the “tort” of medical negligence), the limitation of time under the Limitation of Actions Act for filing such a case is 3 years from the date on which the right of action arose to the person complaining or someone through whom a claim may be made.
F. What information should I include in my claim?
Contents of your petition to the court
In your claim document (“petition”, or for a civil claim, “plaint”) you will need to explain a number of things:
For further detail:
(A guide for lawyers)
in reflecting on whether to file a case or a constitutional petition stating that the right to health has been denied, violated, infringed or threatened, the following questions are helpful:
- The applicability of a constitutional right to the issue in question
- Does the Bill of Rights or statute apply to the dispute?
- Is it a case of direct or indirect application of the right?
- Who are the beneficiaries?
- Who are the duty bearers?
- Is a right violated or threatened with a violation? This means that you should show an interference. In other words, you should show that the government’s or a third-party’s actions have negatively impacted your health. You therefore have to gather evidence of such negative impact such as photographs of pollution, treatment notes or letter from your doctor.
- Limitation: here you consider whether there is a reasonable justification for the interference which will justify a violation. If there is no reasonable justification the violation will be unconstitutional/in breach of the law.
- If a right is violated, is the violation reasonable and justifiable?
- If so, constitutional/not in breach of the law;
- If not, unconstitutional/unlawful;
- If unconstitutional or unlawful, what are the right remedies?
It is really important to provide clear explanations and sufficient detail in the petition to prove the truth of what you are saying. If you fail to do so, your claim may be delayed, and it is possible that the whole claim could simply be rejected by the court.
For further detail:
(A guide for lawyers)
Persons instituting a case relating to the positive duties flowing from the right to health should, nevertheless, sufficiently particularise their claims and back this up with adequate evidence.
This is illustrated in a number of Kenyan cases summarised below which show that, in various cases, persons claiming violation of positive duties of their right to health have failed to sufficiently particularise their claims and adduce adequate evidence.
Nonetheless, some of the recent Kenyan cases as well as cases from other countries discussed below show that courts/judicial bodies have been able to apply the right to health both in terms of progressive realisation and duties of immediate effect.
Rule 10(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) requires that a petition should disclose the following:
- the petitioner’s name and address;
- the facts relied upon;
- the constitutional provision(s) violated;
- the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;
- details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;
- the petition shall be signed by the petitioner or the advocate of the petitioner; and
- the relief(s) sought by the petitioner.
The Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others also considered with approval the holding in Anarita Karima Njeru made before the adoption of Kenya’s 2010 Constitution when it held:
…the principle in Anarita Karimi Njeru(supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle.
Based on this legal position, it is important that a constitutional petition sets out the precise constitutional provisions said to be violated and how they have been violated to avoid a situation whereby the other party manages to have the petition struck out for not properly disclosing a cause of action (a fact or set of facts that enable a person to take a case to court against another).
Providing evidence in support of your claim
You will also need to prove that what you say in your petition is correct. This is called “evidence”, and the court regards it as very important. In the Kenyan courts the document in which you set out your evidence is called the “supporting affidavit”.
This is a formal statement by the petitioner or witness describing the facts giving rise to the claim set out in the petition. These may be facts that you have seen, or that you know to be true. You should explain how you know the facts to be true. You may also use the affidavit to refer to documents, photographs, drawings or other evidence about your claims. These should be attached to the affidavit, and they will often be helpful in supporting the accuracy of what you say in the affidavit.
The affidavit will generally need to be “sworn”. This refers to a process whereby you take the affidavit and any attachments to an independent lawyer – not one who is helping you with the claim – or a commissioner for oaths, and you declare formally before the lawyer that the affidavit is true, using a specified form of words that the lawyer will give you. This is an important step, and you must be sure about the accuracy of all of the contents of the affidavit, because if anything in the affidavit is later shown to be untrue, you may be in trouble. This is why the process of “swearing” the affidavit gives the court comfort that the contents of the affidavit are true.
For further detail:
(A guide for lawyers)
Rule 11 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) provides for the filing of a supporting affidavit to accompany the constitutional petition and inclusion of annexures (documents to be annexed to affidavit or petition). It specifically states that:
- The petition filed under these rules may be supported by an affidavit.
- If a party wishes to rely on any document, the documents shall be annexed to the supporting affidavit or the petition where there is no supporting affidavit.
The documents annexed in the affidavit are each marked with the initials of the name of the person swearing the supporting affidavit and numbered.
Importantly, every document that is referred to in the supporting affidavit should be copied and attached to the back of the supporting affidavit. The first page of each annexure must be stamped with a statement identifying the document annexed as an exhibit and signed by a Commissioner of Oaths.
There are two types of documentary evidence; primary and secondary evidence. Primary evidence refers to the original document itself (e.g. an original medical card or photos of pollution) which is presented before the court for inspection and to be relied upon in the determination of a dispute. Secondary evidence means certified copies, photocopies made from an original, counterparts of a document not executed by parties and oral accounts of the contents of a document given by a person who has seen it.
The document to be presented in court is the original/primary evidence, unless otherwise allowed in relation to exceptions where the presentation of secondary evidence is allowed. As per section 68 of the Evidence Act, these exceptions include:
- where the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, a person out of reach of, or not subject to the process of the court or any person legally bound to produce it;
- when the existence, condition or contents of the original are proved to be admitted in writing by the person against whom it is proved, or by his or her representative in interest;
- when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason, not arising from his own default or neglect, produce it in a reasonable time;
- when the original is a public document (documents forming the acts or records of the acts of the sovereign authority or official bodies and tribunals or of public officers, legislative, judicial or executive, whether of Kenta or of any other country (section 79 of the Evidence Act));
- when the original is a document of which a certified copy is permitted in the Evidence Act or any written law to be given in evidence;
- when the original consists of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection.
Upon commencement of the hearing of a civil case or constitutional petition, a witness or witnesses are usually called to the stand to prove documentary evidence if they are competent, alive, capable of giving evidence and subject to the authority of the court. The most competent witness to present a document is the maker of the document. This is the general rule but there are exceptions in section 68 of the Evidence Act as listed above.
Examples of documentary evidence
Aside from original documents/primary evidence, sections 65 and 66 of the Evidence Act give examples of secondary documentary evidence. These include:
- A micro-film of a document or pictures or images contained in such a micro-film;
- A facsimile copy of a document or an image or a document derived or captured from the original document;
- A statement contained in a document including a printed material produced by a computer;
- Certified copies of an original document;
- Copies made from the original document by mechanical processes which in themselves ensure the accuracy of the copy;
- Copies made from or compared with the original;
- Counterparts of documents; and
- Oral accounts of the contents of the document by some person who has himself seen it.
For some detailed general information on proving your case in court, see “How can I prove my case?”
G. What remedies can be sought?
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