Comparative review: Implementation of constitutional provisions on the right to healthcare in Kenya and Uganda

The right to healthcare is a fundamental human right. It requires states to put in place policies and plans that will lead to available and accessible health services for their populace in the shortest possible time. Studies have shown the benefit to health in countries that have this right enshrined in their constitutions.

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.