Human Rights and the Right to Health Commissioner Winfred Lichuma Kenya National Commission on Human Rights Human Rights Legal guarantees that protect individuals. Entitlements Freedoms They are birthrights of every individual They are enshrined in a set of internationally agreed legal and moral standards that get translated in domestic laws i.e. constitutions Rights are universal, inalienable, indivisible and they come with duties and responsibilities. States have the responsibility or duty to respect, protect and fulfil human rights Characteristics of Human Rights They are: Universal. Focus on inherent dignity and equal worth of all human beings. Indivisible and interdependent. Cannot be waived or taken away Protect individual and to some other extend groups. Some Rights Guaranteed Rights are guaranteed to all human beings under international treaties without any discrimination on grounds of sex, race, language, political or other opinion, national or social origin etc. Right to life, freedom from slavery, equal protection of the law , right to nationality Right to the highest attainable standards of health, right to food, water, food, clean environment etc. Hierarchy of Rights All rights are equally important Rights are indivisible and interdependent. No human being is inferior to any other. Economic, social and Cultural rights must be respected, protected and realized on equal footing with civil and political rights. Efforts should be made to realize all rights together allowing for prioritization as necessary in accordance with human rights principles. Human Rights Obligations To respect-Not to interfere with their enjoyment. To protect-to take steps to ensure 3rd parties do not interfere with their enjoyment. To fulfil-to take steps to progressively to realize the right in question. Link between Health and Human Rights Violations or lack of attention to human rights can have serious health consequences. Health policies and programmes can promote or violate human rights in the ways they are designed and implemented. Taking steps to respect, protect and fulfil human rights can reduce vulnerability and the impact of ill health. The Right to Health It requires governments and public authorities to put in place policies and action plans which will lead to available and accessible health care for all in the shortest possible time. Most authoritative interpretation of the right to health is outlined in article 12 of the ICESCR and its General Comment No. 14. General Comment 14: Criteria to evaluate the Right to health Availability-functioning public health and health and health-care facilities, goods and services as well as programmes have to be available in sufficient quantity. Accessibility- services must be accessible to everyone without discrimination. Acceptability-All health services and goods must respect medical ethics and be sensitive to gender. It must respect confidentiality. Quality-Health facilities, goods and services must be scientifically and medically appropriate and of good quality. Principle of Freedom from discrimination and Health Targets the vulnerable and marginalized in societies. Overt or implicit discrimination violates the fundamental human rights principles and always lies at the root of poor health status. Discrimination manifests itself in a complex variety ways for example violence against women. Preferential treatment in reasonable circumstances does not amount to discrimination. Public health practices are heavily burdened by the problem of inadvertent discrimination-mostly relying on assumptions. Right to Health in the context of Kenya. Kenya has ratified various international and regional instruments that provide the right to health and non discrimination. i.e . ICCPR, ICESCR, CRC, CEDAW, ICERD, and the African Charter among others. Economic, Social and Cultural Rights are not enshrined in the Constitution of Kenya. The Social determinants of health that are the current focus of WHO are constraining factors in Kenya’s attempts to realize the right to health such as the high poverty levels and high rates of unemployment. Kenyan context cont… The right to health has suffered from chronic under- investment. Health system has been undermined and weakened and Kenya needs concerted measures to establish effective and inclusive health systems accessible to all. Kenya has to strife to keep to the health related goals it has committed itself to i.e. MDGs, UNGASS for children and HIV and AIDS, etc. The GOK has attempted to operationalize the commitments through various policies geared towards achieving broad based sustainable improvement in the welfare of Kenya. i.e. National Poverty Eradication Plan, the PRSP and the Vision 2030 e.t.c. Emerging challenges Poverty and Hunger. Maternal death. Child mortality. Combating HIV and AIDS, Malaria and other diseases Environmental issues. Water and sanitation. Conclusion Most laws and policies are outdated and require review. The waiver of maternity fees is a positive move. The government and other agencies should jointly work towards fulfilment of the right to health. The rights-based approach that will insist on participatory approach and empowerment will be the recommended model. We need to convince the 10th parliament that we must include ESCR into the constitution during the proposed review of the constitution.
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