The Right to Emergency Medical Treatment in Kenya

Abstract

Kenya’s Constitution has been hailed far and wide by many as one of the most transformative Constitutions in Africa and across the globe. It brought with it sweeping changes in so far as rights and fundamental freedoms in the Bill of Rights are concerned. For the first time in post-independence Kenya, economic and social rights have been introduced into Kenya’s Bill of Rights under Chapter Four of the Constitution. Amongst these rights is the right of every person to the highest attainable standard of health which includes the right to healthcare services and the right to reproductive healthcare. This right also includes the right of every person to emergency medical treatment. It is this last limb of this right that is forming the subject matter of this paper. Further, the Constitution guarantees equality and freedom from discrimination, and the full enjoyment of all rights and fundamental freedoms. The right to equality encompasses within itself the right of a poor patient to quality healthcare regardless of their ability to pay. Most importantly also, the scope of the Bill of Rights has also been widened as the Constitution now stipulates that most of the rights provided for in the Bill of Rights bind private individuals and corporations, as well as the state. Despite these constitutional guarantees though, the Kenyan media has been replete with reports of patients dying because they have been denied emergency medical treatment on account of inability to pay hospital charges. The question then becomes the extent to which this constitutionally guaranteed right is available for beneficiaries of rights under the Constitution.