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To actualise the delivery of affordable healthcare for all through Universal Health Coverage (UHC), legislative reform is vital.

The agency leading this key task is the Kenya Law Reform Commission (KLRC). Its work involves reviewing “current legal frameworks and systematic development of legislation through integration, unification of the law, elimination of anomalies, repeal of obsolete and unnecessary laws and generally simplification and modernisation of the law to achieve this agenda,” as per its online blog (http://www.klrc.go.ke/index.php/klrc-blog/637-legislative-initiatives-to-support-the-big-four).

The right to health is guaranteed in the Constitution of Kenya and is the pillar for laws supporting UHC. References include the Bill of Rights and Articles 19, 20 (5) 21(1), 26, and 43(1), 46, 56(1) and 70.

The Constitution has devolved health services to the 47 county governments. These services include primary healthcare, health facilities, pharmacies, funeral parlours, emergency services, veterinary services, waste disposal and licensing of hotels. The national government oversees the national referral health facilities.

Provisions in the Bill of Rights, especially the right to life and the right to the highest attainable standard of health, including reproductive health and emergency treatment, have raised the expectations of citizens regarding public health.

Article 43(2) provides further that a person shall not be denied emergency medical treatment.

Legislative initiatives to support UHC and the Big Four Agenda

The Health Act, 2017

Kenya’s Health Act, 2017, published in July of the same year, is the biggest legislative change yet because of its potential impact on the success of UHC.

The Act provides legal teeth to the Health Sector Inter-governmental Consultative Forum (HSICF) that allows the various government agencies in the health sector to meet and plan together, making it possible for the National and County governments to work as one, a role it has played since the onset of devolution.

This is critical for the provision of primary healthcare in county hospitals. The Act formalises consultation between the National and County governments and represents a positive step in the country’s continued devolution.

The Act safeguards access to healthcare services for vulnerable groups by making clear the State’s obligation to provide these for women, the aged, persons with disabilities, children, youth, and members of minority or marginalised communities. This is one of the pillars of UHC globally.

Under the Health Act, the National Government is required to establish a national referral hospital in each of the 47 counties to increase access to specialised care and ease the pressure on Kenyatta National Hospital in Nairobi and Moi Teaching and Referral Hospital in Eldoret.

The National Government is expected to increase access to free maternity care and childhood immunisations by allocating more funds to these services.

Employers and all formal workplaces are now required by law to provide spaces for mothers to breastfeed their infants. They are also supposed to offer emergency care to staff.

Free maternal and child healthcare services in all public hospitals are now grounded in law, thanks to the Act, as is the right to reproductive health, including information about and access to safe reproductive health services. This also includes safe motherhood for expectant women.

As per the law, everyone now has the right to emergency medical treatment, while healthcare providers have to inform patients of their health status (except in therapeutic cases), treatment options and risks. Patients can also reject treatment, but must be made aware of the implications of this choice.

Protection of healthcare providers is also covered by the Act, which also guarantees their right to a safe working environment and employment in both the public and private sectors.

To protect patients, the law gives them the right to file complaints about the quality of care offered by health facilities. National and County governments are required to facilitate this.

The Health Act 2017 created the human resources for Health Advisory Council (HAC) and the Kenya Health Professions Oversight Authority (HPOA).

The council’s mandate is to safeguard health workers’ welfare, by reviewing policies, norms, and standards for deployment of healthcare staff and advising the government on the same. In effect, the Council is the primary human resource policy development instrument for the health sector.

The authority, meanwhile, has regulatory oversight over healthcare professionals and agencies, promoting relationships, leading joint inspections by regulatory agencies and acting as the final arbiter in disputes among them.

The Constitution transferred the bulk of health functions to the county governments. These include public health facilities and pharmacies; ambulance services; primary healthcare; licensing and control of eateries; veterinary services (excluding regulation of the profession); cemeteries, funeral parlours and crematoria, among others.

The objective of the Health Act, 2017 is a unified health system based on the rationale that it is difficult, if not impossible, to have a ‘clean’ separation of health sector functions between the National and County governments, as both levels are interdependent despite the occasional jurisdictional conflicts.

Many counties were initially ill-prepared to take up their expanded roles in healthcare provision. There are also many grey areas in law with regard to policy formulation, setting of standards, supervision of health facilities and resolution of labour disputes between both levels of government that will require more consultations through the HSICF to resolve.

Among them will be resolving duplications between the Health Act and the Public Health Act – which has not yet been repealed.

Work is already ongoing via KLRC to harmonise all laws touching on health and develop rules and regulations for the Health Act and any additional legislation.

The Kenya National Patients’ Rights Charter

This charter entrenches palliative care as a basic health right. Palliative care is assistance given to patients facing life-threatening illness. This is through prevention and relief of suffering by means of early identification, assessment and treatment of pain and other problems, physical, psychosocial and spiritual.

The charter is in line with the Bill of Rights in the Constitution and explains the rights of patients and how they can register complaints or compliments about any health professional or facility. It defines and explains the patients’ rights, responsibilities and dispute resolution mechanisms.

The first right as stipulated in the charter is access to healthcare; where healthcare shall include promotive, preventive, curative, reproductive, rehabilitative and palliative care.

Public and private hospitals are required by law to prominently display patients’ bill of rights at their reception sections or at any other areas they deem fit.

The aim of the charter is threefold:

1. To empower health consumers to demand high quality palliative care;
2. To promote the rights of patients; and
3. To attain the highest standard of health for all Kenyans.

Vision 2030 and UHC

Kenya is a signatory to the UN 2030 Sustainable Development Goals (SDGs), which provide time-bounded goals and targets in key sectors like health, education, agriculture, energy, infrastructure and the environment – for all nations to achieve.

At the continental level, Kenya adopted Agenda 2063, the 50-year Transformative Agenda for Africa, and its First Ten-Year Implementation Plan.

Kenya’s involvement in these global initiatives is anchored in its long-term blueprint, the Kenya Vision 2030, which aims to transform Kenya into a newly-industrialising, middle-income country providing high quality of life to all its citizens by 2030.

Achieving UHC is at the heart of Vision 2030, and the impact will be increasingly felt alongside progress in implementation. Health is at the centre of the ‘social’ pillar of the 2030 vision.

Good health is acknowledged as essential for human welfare and sustained economic and social development. When people have poor health, with lack of decent services being one of the contributing factors, they often are vulnerable to poverty.

The Government’s policies under Vision 2030 seek to achieve equitable and affordable healthcare to boost the productive capacity of citizens so that they can contribute effectively to the growth of the economy. As the saying goes, a healthy nation is a wealthy nation.

This includes families getting the proper nutrition they need and reducing deaths among children under the age of five. Flagship programmes for the health sector include:

1. Community-based information and communication systems;
2. Health products and technologies;
3. Health tourism;
4. Establishing e-Health hubs in 58 health facilities;
5. Re-engineering human resources for health;
6. Healthcare subsidies for social health protection;
7. Construction of model Level 4 hospitals;
8. Improved access to referral systems;
9. Development of equitable financing systems;
10. Strengthening of the Kenya Medical Supplies Authority (KEMSA);
11. Rehabilitation of health facilities.

Under Vision 2030, information and communication technology (ICT) is playing a key role in promoting UHC. Programmes by the Ministry of ICT, Innovation and Youth Affairs to deepen access to ICT services and internet connectivity will make the work of health professionals easier and faster and lower the costs of important health services.

As more young people acquire the relevant ICT skills, systems redesigning, improvising data generation and management and capacity building for healthcare workers are areas that will promote social development and help achieve UHC.

Implementing UHC will not only increase job opportunities as the right people acquire relevant skills, but will also boost research, development and innovation to support UHC. Kenya will be able to unlock intellectual and financial resources, and develop technological solutions to ease access to health services and health practitioners.

Linked to this is the development of health tourism as one of Vision 2030’s flagship projects that focuses on specialised medical services. As Kenya positions herself as a destination for specialised health and medical services, a lot will go into providing this opportunity, from education to research and job opportunities in specialised healthcare.

Giving Kenyans access to specialised medical services will also improve healthcare and help achieve UHC and increase the country’s economic development.

The Government’s blueprint for development programmes regards UHC as a guarantor of financial protection, by providing a shield against catastrophic and impoverishing consequences of out-of-pocket expenditure, through implementation of pooled prepaid financing systems.

Ill-health affects productivity and diverts households’ income to meeting the cost of health care. If UHC is achieved, it means that funds set aside for basic needs will be left intact, therefore alleviating poverty and contributing to sustainable development.

Under Vision 2030, Kenya has already undertaken the following key reforms via various ministries, departments and agencies (MDAs) towards achieving UHC:

1. Free maternity services in all public health facilities since 2013;
2. Free primary healthcare in all public primary health facilities – about 3,300 facilities;
3. A major programme to equip public hospitals across the country with modern diagnostic equipment (94 facilities) where contracts have already been signed with suppliers;
4. A National Referral Strategy has been developed and piloted;
5. Health insurance subsidies through NHIF targeting disadvantaged groups continue to be implemented; and,
   Provision of infrastructure and equipment to health facilities across county governments (new wards, ambulances and additional health workers); among other initiatives.

Several of these initiatives are being implemented in the counties of Kisumu, Isiolo, Nyeri and Machakos, which were chosen to pilot the UHC programme before its national rollout. The four counties were the first beneficiaries of a new health package developed by the Government.

The counties were chosen through evidence-based research on disease burdens in significant areas, as follows:

1. Kisumu leads in the number of infectious diseases like HIV/Aids and tuberculosis;
2. Machakos leads in hospital visits related to accidents and injuries;
3. Nyeri leads in cases of non-communicable diseases, particularly diabetes;
4. Isiolo was picked to assess how the package will work among the nomadic population.

Piloting the health coverage programme is key because the health sector is working on identifying an operational approach that enables rapid expansion of coverage. The objective is to deliver an essential package of quality basic health services that is both fiscally sustainable and consistent with Kenya’s governance structure.

The Government’s focus is on mobilising adequate resources, increasing investments in primary health care, and reforming key institutions such as the National Hospital Insurance Fund (NHIF) to align them to the UHC agenda. The increase in funding for the health sector, especially primary healthcare, shows the commitment by the government to roll out UHC countrywide by 2022 to guarantee access to quality and affordable healthcare.

Government healthcare financing and social health protection approaches, such as the elimination of user fees, Linda Mama project, subsidies for the poor and Health Insurance Subsidy Programmes, have been successful towards helping Kenya achieve UHC.

Financial resources will have to be increased through the Government, donors and private sector, while minimising fragmentation of financing pools – insurance and general tax revenue. NHIF is being strengthened to expand coverage and build quality assurance and accreditation systems.

Towards domestication and localisation of SDGs, in addition to the SDGs roadmap, Kenya has undertaken a number of initiatives. These include mapping the SDGs with Vision 2030, capacity building, advocacy and awareness creation. Other important initiatives are:  the mainstreaming of SDGs in policy and planning, including performance contracts and strategic plans on MDAS; as well as indicator mapping.

Vision 2030 is implemented at both the national and sub-national levels through the five-year Medium Term Plans (MTPs) and the County Integrated Development Plans (CIDPs), respectively.

The first MTP was implemented between 2008 and 2012 and the second is from 2013 to 2017. The two plans mainstreamed the Millennium Development Goals (MDGs).

The third and fourth MTPs will be implemented from 2018 to 2022 and 2023 to 2028, respectively.

The MTPs identify priority projects and programmes to be implemented in each five-year cycle, and each is expected to incorporate new and emerging issues. MTP III is well underway.

The National Government, through consultations with the Council of Governors (CoG), prepares and disseminates the guidelines for preparation of the CIDPs to ensure policy and developmental coherence.  Therefore, they generally mirror the priorities of the MTPs.

UN Sustainable Development Goals

In 2015, the UN adopted 17 Sustainable Development Goals (SDGs) as the organising principle for development policy and cooperation up to 2030, replacing the Millennium Development Goals (MDGs).

Unlike the MDGs that targeted poverty and health, the SDGs take a holistic approach to economic development with specific targets to end poverty, protect the planet, and ensure prosperity for all.

Kenya’s Vision 2030 is aligned to the SDG framework. The Government developed a roadmap for SDGs covering seven broad areas. These are:

1. Mapping of stakeholders;
2. Establishing partnerships;
3. Advocacy and sensitisation domestication/localisation;
4. Mainstreaming and accelerating implementation;
5. Resource mobilisation;
6. Tracking and reporting; and,
7. Capacity building.

It was developed through a consultative process with inputs from National and County governments, civil society and development organisations.

Ensuring healthy lives and wellbeing for all at all ages is one of the aims of the SDGs.

Although significant progress has been made, indicators such as maternal mortality rate, under-five mortality rate and neonatal mortality rate, and HIV incidence are key challenges.

A wide range of initiatives are strengthening service delivery and improving health outcomes, such as enhanced investments in human resource for health, equipment leasing strategy, HIV-related stigma reduction initiative and expanded treatment coverage.

One of the key programmes is expanding health insurance cover to allow access to comprehensive healthcare for all, including vulnerable people, orphans and the elderly.

The government has been expanding the benefit package of the National Health Insurance Scheme to include in-patient and out-patient cover, major and minor surgeries, cardiac conditions and chronic illness. The scheme is also being expanded to include comprehensive cover for civil servants and disciplined forces and new packages related to addressing non-communicable conditions, and instituting strategies to enroll more members.

This has resulted in improved access to high quality comprehensive healthcare at subsidised costs and enhanced access to healthcare by Kenyans, particularly the vulnerable segments of the society.

To address maternal and child health, a number of innovative interventions are being implemented.

An example is the Beyond Zero campaign championed by the First Lady, Mrs Margaret Kenyatta, which aims to end preventable deaths among women and children, and give new impetus to the fight against HIV through policy prioritisation, resource allocation and improved service delivery.

The campaign seeks to strengthen existing health and community systems and mobilise contributions from private and public sectors and development partners.

References

World Health Organisation

Kenya Law Reform Commission

Vision 2030 Secretariat

Kenya Institute for Public Policy Research and Analysis (KIPPRA)

Ministry of Health

Xu, K., D. B. Evans, K. Kawabata, R. Zeramdini, J. Klavus and C. J. L. Murray (2003). Household catastrophic health expenditure: a multicountry analysis. Lancet, 362 (9378): 111–117.

African Charter on Human and People’s Rights

International Convention on Economic, Social and Cultural Rights

Kenya National Patients’ Rights Charter (2013)

Constitution of Kenya 2010

United Nations

Code of Conduct & Ethics for National Nurses Association of Kenya (NNAK)

Global Health Observatory (GHO)

Health Policy, Kisumu County

Health Professionals in Kenya: Estimation of minimum county requirements, KIPPRA Discussion Paper no 163/2014

Health Sector Human Resource Strategy 2014-2018

ICESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12)

Kisumu County Budget 2014/15; 2015/16

Kisumu County Integrated Development Plan 2013-2017

Maternal and Child Health Status in Kenya, Health Policy Paper 2012

National and County Health Budget Analysis Report 2014/15

The Kenya Demographic Health Survey 2014

Ministry of Health

Realising Sexual and Reproductive Health Rights in Kenya: A Myth or Reality? Kenya National Commission on Human Rights (2012)

Steven Jamar, International Human Rights to Health (1994-1995)

SSRN Electronic Journal – February 2018: A Critical Overview of the Health Act 2017