Thursday, July 29, 2010

Kenya’s proposed new constitution and access to medicine

By Judy Wahito Ndegwa, HAI Africa intern
As Kenyans prepare to vote in the referendum on the proposed new constitution (PNC) on August 4, never have two colours meant so much in this country. The ayes (in support of the constitution) are green while the nays, who oppose the draft law, are red. For people working on access to medicines issues the question is: is the PNC green or red on access to essential medicines?

The PNC is one of the most voluminous constitutions in the world. Anything considered significant to the past, present and future of this country has been captured. The right to health being of importance has not been left out.

The right to access essential medicines is premised on the right to health. This has been recognized under the head of economic and social rights at article 43 (1) (a) which provides that every person has the right— (a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care. This is a step forward as presently for one to bring out the right to health, one has to broadly interpret the right to life or refer to international instruments.

in fact, In the court case filed to challenge the Kenya Anti-Counterfeit Act of 2008, the petitioners have asked the court to interpret the right to life as encompassing the right to access essential medicines. Had the petition been brought under the proposed draft, framing the issues would have been much easier.

The right to health for children has also been captured under article 53 paragraph (1) (c) which provides that every child has the right to basic nutrition, shelter and health care.

The right to health like all other economic and social rights will be progressively realized. Article 21(2) requires the State to take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under article 43.

To prevent the state from using the provisions on progressive realization as an escape, article 20(5) provides that in applying any right under Article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles––
(a) it is the responsibility of the State to show that the resources are not available;
(b) in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals;

These provisions are however watered down by the provisions of paragraph (c) which provides that the court, tribunal or other authority may not interfere with a decision by a State organ concerning the allocation of available resources, solely on the basis that it would have reached a different conclusion. This would mean that an improper decision by the state regarding health rights may fail to be challenged by the court!

Another positive provision is Article 46 paragraph (c) subsection (1) which provides that consumers have the right to the protection of their health, safety, and economic interests. With regard to medicines, this provision may be argued to capture the issues of quality, safety and efficacy in medicines. One may also argue that the issue of affordable medicines may fall under the term ‘economic interests’ of the consumer. As such, a consumer may successfully challenge over pricing of medicines or measures that would have an adverse effect on the price of medicines.
On a score card, the draft constitution’s protection of health rights and consequently the right to access essential medicines, scores highly.

Shortfall in the proposed constitution in safeguarding the right to health
This said however, one issue keeps gnawing at my optimism. ‘The international law clause’. Captured under articles 2(5) and 2(6).. Article 2(5) provides that the general rules of international law shall form part of the law of Kenya . On the other hand, article 2(6) provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution.

The net effect of these provisions is that once a treaty or agreement has been ratified (formal approval by an executive authority), it becomes part of our national laws. The treaty or convention not only becomes part of Kenyan law, but attains constitutional status due to the words ‘under this constitution’ which means within the constitution. This is contrary to the current status in Kenya where a ratified treaty or convention has to be ‘domesticated’ through an Act of parliament for it to apply as part of national legislation.

The advantage of the current status is that the provisions of the ratified treaty are scrutinized by parliament before enactment. It also gains legitimacy among the people as it is approved by their democratically elected representatives. Further, it provides an opportunity for individuals or members of the civil society to give their views on the proposed law.

The proposed method under the PNC is therefore less democratic and more precarious. With impeding international treaties such as ACTA (the Anti-Counterfeiting Trade Agreement) which propose measures that could potentially inhibit access to essential medicines, such a move is to say the least, risky.

Notably article 2(6) refers to ‘any treaty or convention’. This therefore refers to even the East African Community (EAC) treaty which provides that members should enact laws that enable the community laws to gain supremacy over their national laws. If the PNC passes, Kenya will have met this requirement.

Once again one must bear in mind that there is an EAC Anti-Counterfeit Bill which also threatens to limit access to essential medicines and one which has been widely opposed by health and Intellectual Property law experts at all levels..

Article 2(6) is therefore a dangerous provision as it makes Kenya vulnerable to conventions and treaties which may not be in the best interest of the country bearing in mind that Kenya is a developing country which heavily relies on external partners for funding. It is, therefore, possible for such partners to arm twist the government into entering into agreements that may not be in the interest of the country.

In light of the above, is the PNC green or red with regard to access to essential medicines? Be the judge!