No One Shall Be ‘Denied Emergency Medical Treatment’ in Kenya: Opportunities, Challenges and Strategies

Abstract

The right to health care is considered as being fundamental to the physical, emotional and mental well-being of all individuals. Similarly, it is considered a necessary condition for the exercise of other human rights. Emergency medical treatment (EMT) on the other hand, although an important component of the right to health, has not received the same recognition as a human right on its own. EMT is still deemed a luxury in developing countries with Kenya being no exception. In essence, the right to emergency health care is unwittingly detached from the right to health. This perhaps explains why some countries like South Africa and Kenya have recognized the significance of including in their constitutions an express provision creating an obligation, albeit from a negative right, requiring that no one be denied EMT. In Kenya, Article 43(2) provides, ‘A person shall not be denied emergency medical treatment’. What does this mean and does it place any obligation on the state to ensure the realization of this right as a social justice issue? If it does, what sort of obligation is this? Consequently, this paper seeks to identify Kenya’s position with respect to its obligation which makes it unconstitutional to refuse a person EMT. What has the country done, in terms of legislative and policy formulation, to realize this constitutional ‘negative right’? Does this obligation extend to private medical practitioners or is it limited to public hospitals?

Keywords: Emergency Medical Treatment, Right to Health, Kenya, Position Paper, Women's Rights

JEL Classification: K32