Abstract:
The Health 2017 was passed with the objective of fleshing out the right to health as provided for in article 43 of the Constitution of Kenya 2010. It also seeks to clarify the obligations of the national government and the county governments so far as the provision of health in Kenya is concerned. While it clarifies the nature of rights and duties relating to the right to health, it however creates some level of ambiguity in the role of the national and county governments in the provision of health. While the Constitution delineates the power of the national government as being policy formulation, the Act has given a lot of prominence to the national government to such an extent that county authorities may feel elbowed out from performing the role given to them by the Constitution. For instance, the Act creates an executive department of health for all the counties headed by the County Health Director. However, counties have their own authority to create offices and they have indeed gone ahead to create county executive committee membership for health whose mandate is likely to be contradicted by the County Director for Health. This creates potential for conflict. Also, the Act creates an atmosphere of over-regulation of healthcare professional and providers. The institutions created in the Act have similar functions to existing regulatory authorities and yet the latter are not repealed. Moreover, some county institutions e.g. the County Director for Health, have some supervisory jurisdiction over healthcare providers and professionals, thus creating a risk of jurisdictional confusion. The obligation imposed on healthcare providers to provide emergency medical treatment is burdensome on private providers since no provision is made for compensation of costs incurred. Finally, the Act is a working document that needs to be fully actualised by passing rules, regulations, norms, standards and other legislation. In the end, the Act is a good start but the ambiguities must be ironed out if the right to health is to be a reality.
