Laws that govern Kenya's healthcare system

Health guidelines are enshrined in the constitution. [iStockphoto]

Kenyan health care system is governed by the Constitution that gives every person the right to the highest attainable standards of health, under Article 43 (1).

Before the inauguration of the current constitution in 2010, the country’s health system was managed by two central ministries and governed by the Public Health Act of 1921, and other statutes that govern specific functions of health.

Health guidelines enshrined in the constitution were developed and guided by the World Health Organization concept framework.

As per the constitution, health functions are extensively devolved. The national government handles health policy, national referral services and capacity-building for counties; whereas the county governments are assigned person-based and public health services.

“The constitution is supreme and it addresses how healthcare should be operationalised, puts more emphasis on primary care, rights of citizens and funding to guarantee quality services to all citizens,” explains Dr Jennifer Kinyanjui, a health economist.

According to the National Library of Medicine (a body that provides access to scientific literature), for proper guidance in the transformation of the health sector under devolution, the Kenya Health Policy 2012–2030 was formulated.

The policy priorities were structured around six components of WHO’s well-functioning health system, including service delivery, leadership and governance, health system financing, health workforce, medical products, vaccines and technologies and health information system.

Health Act, 2017 was the first post-independence health legislation law enacted by the Parliament.

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The Act established a unified health system, to coordinate inter-relationships between national and county government health systems, following the devolvement of health to the counties.

The Act also provides for regulation of healthcare services and healthcare service providers, health products and health technologies and for connected purposes.

Under the Act, the state is further mandated to enact policies, laws and other measures necessary to protect, promote, improve and maintain the health and well-being of every citizen.

“It is a fundamental duty of the State to observe, respect, protect, promote and fulfil the right to the highest attainable standard of health including reproductive health care and emergency medical treatment….” reads a section of the Act.

It adds, “Every person has the right to the highest standard of health, the attainable standard of health which shall include progressive access for the provision of promotive, preventive, curative, palliative and rehabilitative services”.

Further, the procedure for recruitment of health officials like the Director General is explained in the Act.

Dr Kinyanjui adds that the Health Act has also integrated maternal health and family planning, and regulates the arrangement of the healthcare system in the country.

“Health Act gives communities the leeway to come up with health solutions, for example, Kiambu County has established Kiambu Health Act that provides affordable healthcare to every citizen.

The laws have also standardised treatment costs to avoid overcharging of patients seeking treatment.”

Other issues enlisted include the running of public hospitals within counties and the establishment of the Kenya Health Human Resource Council.

Last year, Health CS Susan Nakhumicha established the council, noting that human resources is key in the implementation of Kenya Kwanza’s Universal Health Coverage (UHC) agenda.

Regulation of health products and health technologies are also governed by the act, which gives leeway for the establishment of a regulatory body that licenses health products, manufacturers and distributors of health products.

Health CS Susan Nakhumicha. [Boniface Okendo, Standard]

The body further conducts laboratory testing and inspection of manufacturing, storage and distribution facilities of health products and technologies.

With the spiking number of mental health illnesses in Kenya - according to experts and the Ministry’s data including WHO’s - the Act directs the establishment of the Mental Health Act.

Former President Uhuru Kenyatta enacted the Mental Health Act in 2021.

The law provides for the provision of quality healthcare, treatment, and rehabilitation to persons suffering from any form of mental illness.

Individuals are guaranteed proper healthcare through the allocation of more resources to mental health, by both the national and county governments.

Under the law, the national government is also expected to allocate between four and six per cent of the total health budget to mental health.

Nevertheless, county governments are mandated to allocate a similar percentage of their health budgets, to implement mental health policies.

"Devolved units will also allocate funds for personnel and resources to provide mental healthcare within county health facilities from level two to level five hospitals, besides having dedicated clinics to offer outpatient services and community-based care and treatment for persons with mental illness,” reads a section of the Mental Health Act.

Kenya allocates only 0.01 per cent of the budget for mental health.

The country requires Kshs 12 billion for mental healthcare annually, which translates to Sh250 per person annually, but instead, the State is spending Kshs 25 per person.

Additionally, the law decrees insurance companies to offset the medical bills of patients with mental illnesses.

Currently, health covers do not accommodate mental health bills.

On the other hand, county governments are also mandated to set up goals and policies, hire more practitioners and integrate mental health into the healthcare system.

Amid stigma associated with mental health, the law promotes recovery, enhances rehabilitation, safeguards rights, and ensures the integration of persons with mental illnesses into their respective communities, besides reducing the impact of mental illness, including the effects of stigma.

“I am extremely happy to have the Mental Health Act. It has been a long journey of pushing to have an Act of parliament,” former Senator Sylvia Kasangani told ‘The Standard’.

Kasangani is the one who drafted the Mental Health Bill, that was enacted into law.

The senator said she drafted the Bill due to "neglect of mental health which sees vulnerable citizens suffering from severe cases, yet they are not receiving treatment and the dignity that every citizen is entitled to in the Constitution.”

The common mental illnesses in Kenya, according to the Mental Taskforce established by President Kenyatta, include depression and suicide, substance use disorder, bipolar disorder, schizophrenia, and other psychoses.

According to a WHO report, at least one in every four Kenyans suffers from mental health illnesses.

“Mental health illnesses start from everyday life challenges like anxiety, stress, depression, and advanced mental illnesses like schizophrenia, psychosis, and extreme bipolar. Many Kenyans suffer even without knowing they are suffering,” Kasanga added.

A 2011 report by the Kenya National Commission on Human Rights titled ‘Silenced Minds: The Systematic Neglect of the Mental Health Systems in Kenya’ noted the lack of a roadmap on mental health and recommended that the Ministry of Health develops a clear roadmap by reviewing the Mental Health Act.

President Uhuru Kenyatta was keen on mental health. In 2019, he appointed a task force to look into the country’s mental health crisis.

But a number of Acts and policies are yet to be effected in the country due to a lack of resources, according to experts.

“A lot of Acts of Parliament are not implemented to the letter because of lack of resources, lack of political will and knee-jerk reaction,” observes XN Iraki, an Economist and Professor at the University of Nairobi.

Some of the laws he says have helped save lives, like during COVID-19, where the Public Health Act, on preventive and promotive health worked.

To effectively have these laws and acts actualised, Iraki notes the need to have them re-looked at.

“They need to be revised, to take cognisance of devolution, technology and global trends.”