GOVERNANCE STRUCTURES FOR IMPLEMENTING THE RIGHT TO HEALTH

IN KENYALYLA LATIF

WORKSHOP FOR CSOS ON MONITORING THE IMPLEMENTATION OF THE RIGHT TO HEALTH UNDER THE CONSTITUTION OF KENYA

23 NOVEMBER 2016, MAANZONI LODGE

GOVERNANCE STRUCTURES

OBJECTIVES OF THIS SESSION 1. To understand our devolved governance system;

2. To understand the role of different state organs and agencies when it comes to the delivery of health care services;

3. Since health is a devolved function, it is imperative that the role of the different actors at the 2 levels of government be well understood, and

3. As a result, to effectively advocate on enhancing the enjoyment of the right to health.

INTRODUCTIONNATIONAL LEVEL

Senate

National Assembly

National Executive

Judiciary

COUNTY LEVEL

County Assembly

County Executives

• Bound by devolution (Training Manual at P.23)

• Are distinct and interdependent

• Conduct mutual relations through consultation and cooperation

FUNCTIONS WITH RESPECT TO THE RIGHT TO HEALTH

National Government

In charge of developing the national policies and standards for

the health sector

County Government

In charge of planning and managing the service delivery in county health facilities

CHECKS AND BALANCES BETWEEN THE 2 LEVELS OF

GOVERNMENTNational Government

• Senate• National Assembly• National Executive• Judiciary

Intergovernmental Structures

• Summit• Council of Governors• Intergovernmental Technical

Committee• COG Secretariat• Health Sector Consultative

Forum• Intergovernmental Agencies• Inter-county Consultative

Forums

County Government

• County Assembly• County Executives

Facilitates consultation and cooperation between the 2 levels of government

NATIONAL GOVERNMENT STRUCTURES IN IMPLEMENTATING THE RIGHT TO HEALTH

1. PARLIAMENT (National Assembly and the Senate)

2. NATIONAL EXECUTIVE

3. JUDICIARY

ROLE OF PARLIAMENT ON THE RIGHT TO HEALTH

1. Formulating laws for the progressive realisation of the right to health

2. Reviewing laws that relate to the health sector to ensure the laws incorporate health as a human right

3. Overseeing that the National Government Executive develops policies and implements programmes for facilitating access to the right to health

4. Allocating adequate resources to counties from nationally collected revenue for the implementation of the functions assigned to the counties

5. Ensuring adequate allocation of funds to the delivery of health as a right in the national government’s budget to the health sector – Abuja Declaration.

See table on page 19 of the Training Manual.

ROLE OF THE NATIONAL EXECUTIVE IN DELIVERING THE

RIGHT TO HEALTHCOMPOSITION AND FUNCTIONS

COMPOSITION:

• President, Deputy President, Cabinet

FUNCTIONS:

• Formulate policy, develop sectoral and national strategies

ROLE

i. Review and develop health sector policies and bills for tabling in Parliament

ii. Set standards for guiding service delivery

iii. Develop service delivery protocols for national referral facilities

ROLE OF THE JUDICIARY IN ENFORCING THE RIGHT TO

HEALTH Articles 23 and 165 empowers the High Court to determine applications for the redress of a denial, violation or infringement of or a threat to a right or fundamental freedom in the Bill of Rights

High Court can issue:

a. Declaration of rights;

b. Injunctive relief (to stop violations of rights);

c. Declare a law, policy, guideline that facilitates violations of rights as invalid, and

d. Compensatory relief.

CONSTITUTIONAL COMMISSIONS AND INDEPENDENT OFFICES IN MONITORING

THE RIGHT TO HEALTH1. KENYA NATIONAL COMMISSION ON HUMAN RIGHTS

2. NATIONAL GENDER AND EQUALITY COMMISSION

3. COMMISSION ON ADMINISTRATIVE JUSTICE

All play different roles in monitoring the implementation of human rights and administrative justice in the country.

COUNTY GOVERNMENT STRUCTURES IN IMPLEMENTING

THE RIGHT TO HEALTHCOUNTY ASSEMBLY

Legislative arm of the county

See page 21 of the Training Manual

COUNTY EXECUTIVE

Comprises of the Governor, Deputy Governor, County Executive Committee members and the County Public Service

See page 21 of the Training Manual

INTERGOVERNMENTAL STRUCTURES FOR THE

DELIVERY OF HEALTH SERVICES Intergovernmental Relations Act, 2012 provides for the establishment of the structures to facilitate the intergovernmental relations envisaged under Article 189 of the constitution

CONCLUSION:GOVERNANCE STRUCTURES FOR

IMPLEMENTING THE RIGHT TO HEALTH

NATIONAL/COUNTY EXECUTIVE

PARLIAMENT/COUNTY ASSEMBLY AS THE

LEGISLATUREJUDICIARY

CENTRE FOR HEALTH HUMAN RIGHTS AND DEVELOPMENT & 3 OTHERS V. ATTORNEY GENERAL (Constitutional Court of Uganda,

Constitutional Petition No. 16 of 2011) The Constitutional Court of Uganda failed to discuss health financing or hold the government accountable for failing to progressively realise the right to maternal health care.

It left the discussion on implementation and enforcement of health policies solely to the executive arm of the government.

The Court emphasized the political and legal responsibility of the executive arm of the government to determine, formulate and implement policies of government.

In finding the petition against the petitioners, the court has implied that class actions are not permitted in addressing state responsibility towards financing the right to health. Also the right to health was considered from the right to life perspective. A denial of the right to health is a violation of the right to life. This gives the right to health a stronger rating in the Bill of Rights.

MATTHEW OKWANDA AND THE MINISTER OF HEALTH AND MEDICAL SERVICES AND 3 OTHERS (High Court of

Kenya, Constitutional and Human Rights Division, Petition No. 94 of 2012)

In Kenya, the court recognised the problem of limited financial resources on the part of government towards achieving the right to health. The court spoke of steps to be taken and steps to be seen to be taken by the state towards the realisation of economic and social rights.

Whether these steps include fiscal measures in achieving these rights, the court did not elaborate. According to the court, the state is under the obligation to show how it is addressing or intends to address economic and social rights through its policies and plans.

Despite making this finding the court gave neither guidance nor indication on whether this obligation involves addressing finance and financial obligations in the state’s policies and plans. The Court goes no further in interpreting what concrete steps mean and whether these steps can be understood to mean the allocation of financial resources to the attainment of economic and social rights since rights require resources.

DISCUSSION POINTS 1. You want to advocate for a health policy, to whom do you address your demands for policy formulation?

2. Whom do you hold accountable for failure to deliver health services in county health facilities?

3. Where do you seek redress when the right to health is violated and/or threatened?