Judiciary embraces handbook to guide decisions on health, uniformity

In any democracy, the judiciary plays a crucial role in law enforcement. One of the many areas it covers is the right to health.

The Judiciary also goes a long way in defining and clarifying aspects and contents of the right to health in addition to serving as a guardian of constitutional health-related rights, ensuring that justice prevails in matters of public health and individual wellbeing.

Through their decisions, judges play a crucial role in shaping healthcare policies and practices that align with the principles of justice, fairness, and human dignity.

It is against this backdrop that a ‘Right to Health Benchbook’ has been developed to audit emerging jurisprudence, laws and policies as well as international and regional standards on the right to health in Kenya.

Supreme Court Judge Smokin Wanjala, says the contents of the bench book are derived from courts of law decisions and are expected to contribute to certainty and uniformity in decision-making.

“When a judge or any judicial officer is confronted with an issue that has already been decided and dealt with in this bench book, it becomes very easy for the judicial officer to make a reference and come up with a uniform decision,” he says.

The book was recently launched in Nairobi.

He says the contribution of the benchbook will be to avoid and eliminate contradicting decisions coming from the courts of law, in addition to expediting health cases.

“Justice delayed is justice denied, and more so in questions surrounding the health of a human being and therefore when a decision is to be made by a court of law, it should be expeditiously made. The bench book will contribute to that expedition because it will now not take a very long time for judges and magistrates to go into research which has already been dealt with and covered in the bench book,” he explains.

He says the book is a testament to the growing sophistication and breadth of the country’s health jurisprudence; and captures the most recent case law, relevant legal frameworks and international and regional standards.

According to him, the right to health is a cornerstone of social justice, and it goes hand in hand with the dignity and equality that every person is entitled to under the law.

“Our jurisprudence must continue to evolve in ways that reflect our society’s pressing health needs, particularly as we grapple with complex issues such as access to reproductive healthcare, mental health, environmental health, and the social determinants of health,” he states.

The publication comes against the backdrop of healthcare challenges, from pandemics to resource distribution to demanding robust legal responses grounded in justice, fairness, and equity.

He says judgments and legal decisions have the power to shape the future of healthcare in Kenya, ensuring that no one is left behind, particularly the vulnerable, marginalised, and disadvantaged; and courts must remain beacons of hope for those seeking redress for violations of such health rights.

The publication, titled “Right to Health Bench Book: Select Decisions, Issues and Themes,” was developed by International Commission of Jurists - Kenya (ICJ) in collaboration with the Kenya Judiciary Academy and the Center for Reproductive Rights.

 ICJ Acting Executive Director, Demas Kiprono, affirms that the benchbook will serve a critical role in advancing human rights and improving judicial adherence to both national and international legal standards.

“The bench book has set out the scope and principles of the right to health in Kenya and in the region. As we move to courts to interpret how this new health regime is being rolled out, how Kenyans are suffering as we transition from NHIF to Social Health Insurance Fund, it will be an important guide to judicial officers when called upon to make certain decisions with regards to right to health,” Kiprono explains.

According to ICJ Kenya Chairperson, Protas Saende, the book references various aspects of enforcing the right to health, as guaranteed under the Constitution of Kenya, while also giving illustrations from relatively recent case law.

“The bench book will serve as a legal resource guide for judges and other judicial officers on the right to health issues. It is intended that the Bench Book will equip judicial officers, advocates, legal scholars, paralegals, government, civil society actors and the public with knowledge and information on emerging jurisprudence on the right to health in Kenya,” he said in a statement read on his behalf by Kiprono.

From early pronouncements under the 2010 Constitution on proposed legislative amendments such as the Anti-Counterfeit Act 2008 to the more recent pronouncements on the illegality of detention of patients over unpaid medical bills even by private hospitals, he said the courts are a crucial stakeholder in furthering the right to health. 

"There must be continued engagement with the judiciary to enhance its ability to develop sound jurisprudence on the right to health,” SZaende concludes.