Regional Network for DISCUSSION Equity in Health in east Paper and southern Africa NONO.. 118118 Comparative review: Implementation of constitutional provisions on the right to healthcare in Kenya and Uganda Centre for Health, Human Rights and Development (CEHURD) In the Regional Network for Equity in Health in East and Southern Africa (EQUINET) EQUINET DISCUSSION PAPER 118 March 2019 With support from IDRC (Canada) Regional Network for DISCUSSION Equity in Health in east Paper and southern Africa NO. 118118 Comparative review: Implementation of constitutional provisions on the right to healthcare in Kenya and Uganda Centre for Health, Human Rights and Development (CEHURD) In the Regional Network for Equity in Health in East and Southern Africa (EQUINET) EQUINET DISCUSSION PAPER 118 March 2019 With support from IDRC (Canada) EQUINET DISCUSSION TABLE OF CONTENTS PAPER NO. 118 Executive summary 1 1. Introduction 3 2. Methods 4 3. Application of international commitments on the right to health 5 3.1 Application of international instruments 5 3.2 Regional instruments on the right to health 6 3.3 Domestication of international instruments 9 4. Constitutional provisions on the right to health in the region 10 4.1 Previous constitutional provisions on the right to health 10 4.2 The constitutional reform process and the right to health in Kenya and Uganda 11 4.3 The current constitutional frameworks and the right to health 12 5. Implementation of constitutional provisions in the region 15 5.1 Political constitutionalism of the right to health in Kenya and Uganda 15 5.2 Judicial constitutionalism of the right to health in Kenya and Uganda 17 5.3 Popular constitutionalism of the right to health in Kenya and Uganda 18 6. Challenges in and options for implementing health rights 20 7. References 22 Acronyms 24 Cite as: CEHURD (2019) ‘Comparative review: Implementation of constitutional provisions on the right to healthcare in Kenya and Uganda’, EQUINET Discussion paper 118, CEHURD, EQUINET: Uganda and Harare. Acknowledgements: This discussion paper was authored by Mulumba Moses and Jacqueline Nassimbwa, CEHURD, Plot 4008, Justice Road, Canaan Sites, Nakwero, Gayaza – Kalagi Road, Uganda We acknowledge the partnership with the International Research Development Centre(IDRC) that funded this work through the Regional Network for Equity in Health in East and Southern Africa (EQUINET). We acknowledge Labasi- Sammartino Catherine of McGill University who contributed to this work during her internship with CEHURD. We are also grateful to Dr. Rene Loewenson, Training and Research Support Centre (TARSC), for technical edit and review and to Professor Leslie London for external peer review and providing insightful feedback. i Comparative EXECUTIVE SUMMARY review: Implementation of constitutional The right to healthcare is a fundamental human right. It requires states to put in place policies and plans that provisions on the right to will lead to available and accessible health services for their populace in the shortest possible time. Studies healthcare in have shown the benefit to health in countries that have this right enshrined in their constitutions. Kenya and Uganda This discussion paper is produced by the Centre for Human Rights and Development (CEHURD) as part of the theme work on health rights and law of the Regional Network for Equity in Health in East and Southern Africa (EQUINET). The paper examines the implementation of constitutional provisions on the right to healthcare in Kenya and Uganda, two countries in East Africa. It aims to identify factors and mechanisms that have facilitated implementation of constitutional provisions on the right to healthcare, including how the constitutions were developed and framed. We compare implementation in Kenya, where the right to healthcare is explicit in their 2010 Constitution, and in Uganda, where the right to healthcare is implicit in the National Objectives and Directive Principles of State Policy. The paper draws on two EQUINET case studies on implementation of constitutional provisions on the right to health, one each in Kenya and Uganda, published in 2018, a 2017 regional workshop that discussed the implementation of constitutional provisions on the right to health, and additional review of published literature. It presents a thematic analysis of the findings from the two case studies in terms of the judicial, political and popular implementation mechanisms, exploring further the factors and mechanisms that have facilitated or blocked their implementation. As the two constitutions address the right to healthcare differently, this analysis of their application provides insights into the factors and mechanisms for practice that may be useful in other settings. Various international norms potentially supported implementation of the right to healthcare. Both countries have ratified most of the international instruments on the right to health, including the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Committee on the Rights of Persons with Disabilities and the Convention on the Rights of the Child (CRC). The two countries have also made regional commitments under the African Charter on Human and People’s Rights (ACHPR) and the East African Treaty. The two countries differ in how they implement these norms. Kenya has included in its constitution a provision to apply international law, that any treaty ratified by Kenya shall form part of the laws of Kenya. Uganda, in contrast, provides for a further demand to domesticate international law by first enacting it in local law. Nevertheless, the tabling by both countries of reservations on one protocol suggests that some ambiguity remains on this. Further, while the two countries have ratified the protocol to the ACHPR on establishment of an African Court, they have not deposited a declaration to the African Commission and therefore cannot take any cases on violation to this court, limiting the possibility of taking up these international commitments through this legal mechanism. The paper highlights how different historical trajectories have led to constitutional inclusion of the right to health in the two countries, explicitly in the Kenyan Bill of Rights and implicitly in Uganda in the objectives. The eight-year constitutional reform process in Uganda was implemented through a widely consultative state commission process, but where there was limited demand for explicit inclusion of the right to health. The right to health in Uganda’s current constitution is thus under the national objectives and directive principles of state policy where objective XX indicates that the state will take all practical measures to ensure the provision of basic medical services to the population. In Kenya the process was shorter, with a high level of involvement of strong Kenyan women’s groups advocating for inclusion of reproductive health under the right to health. The right to health and healthcare are explicitly included in the bill of rights in Kenya’s current constitution. 1 EQUINET The constitution cannot implement itself. The issue of implementation was never part of the discourse DISCUSSION PAPER on constitutionalism in Africa until the 2010 Kenya Constitution. The Kenyan government instituted NO. 118 a Constitutional Implementation Commission that provides valuable experience in how it steered implementation. We explore the implementation of constitutional provisions in the two countries in terms of three approaches: political, judicial and popular constitutionalism. It would be expected that explicit provision of the right to health in the Kenyan Bill of Rights would make its implementation more likely, but this is not always apparent from the evidence found and reported in the paper, with various barriers raised to political, judicial and popular forces for implementation. The implicit provision in Uganda and proxy provisions such as the right to life were found to provide opportunities to be invoked to realize the right to health. The findings suggest that a positive realisation is more visible in a judicial form of implementation, where judges and lawyers use both national and international doctrines on rights. In Kenya, the constitution provides for domestic application of such international norms. The right to health is clearly justiciable, and judicial officers have made rights-focused pronouncements in their judgements, including quotes of international law. In Uganda, where provision of the right is not explicit, a landmark case shows the complexity of judicial implementation. The Constitutional Court dismissed a case on the right to health as a political question, only to be overturned by the High Court following an appeal. In Uganda, while there is evidence of limited progress, legal ambiguity and a more limited understanding of the human rights approach amongst judges may have led to a variation across judicial officers in the interpretation of rights violations and challenges in litigating on human rights. In both countries, we found challenges in the implementation of health policies that affect the implementation of rights, including weaknesses in accountability mechanisms, in decentralisation and resourcing of services and in people’s social power to ensure that rights on paper are implemented in practice. This is even more pronounced where rights are contested, such