UNPACKING THE COUNTY GOVERNMENT OF BUNGOMA AND OTHERS V JOSEPHINE OUNDO ONGWEN AND OTHERS: TOWARDS A PROGRESSIVE MATERNAL HEALTHCARE IN KENYA

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Introduction

Health is an important socio-economic right, indispensable for the exercise of other human rights. It is a right that is subject to immediate realization as opposed to progressive realization like other socio-economic rights. The UN Committee on Economic, Social and Cultural Rights (CESCR) under General Comment No. 14 asserts that every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life of dignity.^[1] The right to a good quality, woman-centered maternal health care is universal is connected to other fundamental human rights.[2] Central to the provision of quality maternal care is the issue of whether pregnant and laboring women are treated by health providers in a respectful and dignified manner that promotes women’s health and well-being. Promoting respect and dignity is a key component of providing quality care during facility-based childbirth and is becoming a critical indicator of maternal health care.[3] The National and County Governments are mandated to put in place policies that would ensure the realization of maternal health care, as they are under obligation to observe, respect, protect, promote and fulfill the right to health as espoused under Articles 21(1) and 43(1)(a) of the Constitution. However despite these policies in places, it is abhorrent that many women still encounter uncaring and abusive treatment from health care providers during facility-based labour and delivery.

Kenya acceded without any reservation to the Convention on the Elimination of all Forms of Discrimination (CEDAW) in 1984. Article 12 states that, State parties should take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.[4] The International Covenant on Economic, Social and Cultural Rights (ICESCR) which Kenya acceded to, under Article 10 states that special protection should be accorded to mothers during a reasonable period before and after child birth.[5]

A new herald for maternal healthcare in Kenya: A case point analysis

The recent decision of the Court of Appeal in the County Government of Bungoma and others v Josephine OundoOngwen and others (2024) eKLR,[6] presents a new dawn in the realization of socio-economic rights, especially the right to maternal healthcare. The case involves one Josephine Oundo Ongwen, a woman who was admitted to Bungoma District Hospital for child birth. Despite a Presidential Directive for free maternity care,[7] Josephine faced challenges during labour. She was induced, and ultimately gave birth on the hospital floor due to overcrowding and lack of bed facilities at the Bungoma County Hospital. Josephine alleged mistreatment and harassment by nurses who not only failed to monitor her properly, but shouted at her and forced her to carry the placenta to the delivery room after birth. The hospital disputed Josephine’s account, claiming she was attended to appropriately and treated with dignity despite resource constraints. Two nurses implicated were investigated and reinstated by the Nursing Council of Kenya. Josephine, initially silent, later spoke out after seeing a video of her ordeal on TV. She criticized the hospital due to a lack of awareness about complaint procedures and inadequate response to her traumatic experience. She approached the High Court and was awarded Kshs 2.5M for violation of her right to maternal health, among other rights. Dissatisfied with this judgment, the respondent moved to the Court of Appeal.

The court at Paragraph 29 held that, “it is not, at all, contested that under our Constitution, every woman is entitled to respectful maternal care during childbirth as part of their social and economic rights enshrined in Article 43 of the Constitution. That aspect of the right to health is not subject to progressive realization. It is part of the minimum core of the right that must be realizable immediately and not progressively.”

It went ahead to dissect the minimum core of a woman’s right to respectful maternal care during child birth and held that it included:

a. The right to be free from physical violence and verbal abuse during labour and childbirth;

b. The right to be free from discrimination during labour and childbirth;

c. The right to a dignified and respectful care – including being granted acceptable levels of privacy and confidentiality during labour and childbirth.

The court further held that the three aspects of a woman’s right to health as enshrined in Article 43 of the Constitution and amplified by the various conventions and treaties to which Kenya is party to (which are also part of the laws of Kenya by dint of Articles 2(5) and 2(6) of the Constitution) constitute part of the minimum core of the right to health which is not subject to progressive realization. These include: Article 12 of the Convention Against the Elimination and Discrimination Against Women; Article 10 of the International Covenant on the Economic, Social and Cultural Rights; and Article 24 of the Protocol to the African Charter on Human and People’s Rights of Women in Africa (Maputo Protocol).

Analysis of the minimum core standards

The argument that economic, social, and cultural rights have basic components standards that are not susceptible to limitations was incorporated into human rights debate in an effort to overcome the issues faced by the progressive realization of human rights within resources and the defined constraints of rights

The minimum core standards as enunciated by the Committee on Economic, Social and Cultural Rights (CESCR)[8] sets a base level for socio-economic rights, and outlines a minimum threshold of socio-economic and cultural rights that the government must immediately prioritize. It has three main principles which are immediacy, uniqueness and non-derivability. The principle of immediacy requires that the specified rights be met promptly, instead of progressively over time. Uniqueness, underscores the importance and distinctiveness of the specified rights, which are vital for upholding the basic essence of human rights. The final principle, non-derogability, asserts that the specified rights must never be undermined or diminished under any conditions.[9]

Conclusion

The case highlighted issues of patient rights, quality of care, and communication in healthcare settings, emphasizing the importance of respectful maternity services and effective complaints mechanisms for patient advocacy and accountability. The judgment is a breath of fresh air in the realization of the right to health as a socio-economic right and improvement of maternal health care in Kenya. It sets a precedence that backs the Constitution’s aim of tackling poverty and disparity in health care, strengthening the rights related to maternal health care, and a rigorous examination of the state's adherence to the realization of socio-economic rights.

 

By: Otieno Harrison Okoth who serves as an Associate Editor at the University of Nairobi Law Journal and Gracie Ndung’u who serves as Research Editor at the University of Nairobi Law Journal

 

 

 

 

 

 

 

 

 

 

 

 

 

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^[1] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4.

[2] Beatrice Odallo, Evelyne Opondo and Martin Onyango, ‘Litigating to Ensure Access to Quality Maternal Health Care for Women and Girls in Kenya’ (2018) 26 Reproductive Health Matters 123.

[3]Charity Ndwiga and others, ‘Exploring Provider Perspectives on Respectful Maternity Care in Kenya: “Work with What You Have”’ (2017) 14 Reproductive Health 99.

[4] ‘Article 12, Convention on the Elimination of All Forms of Discrimination against Women’ ratified on May 9^th 1984

[5]  Article 10, International Covenant on Economic, Social and Cultural Rights | OHCHR’ ratified on March 1976

[6] [2024] eKLR

[7] Ministry of Health Kenya, ‘Speech by H.E. Hon. Uhuru Kenyatta, C.G.H., President and Commander-in-Chief of the Defence Forces of the Republic of Kenya During the Madaraka Day Celebrations’ (Nyayo National Stadium, 1June, 2013)< https://docplayer.net/165676115-Speech-by-h-e-hon-uhuru-kenyatta-c-g-h.html>accessed 4 March 2024.

[8] CESR General Comment Number 3, “The committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party……………….. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être.”

[9]Gautam Bhatia, ‘Making the Right to Reproductive Health Meaningful: The Judgment of the Kenyan Court of Appeal [Guest Post]’ (Indian Constitutional Law and Philosophy, 2 March 2024) <https://indconlawphil.wordpress.com/2024/03/02/making-the-right-to-reproductive-health-meaningful-the-judgment-of-the-kenyan-court-of-appeal-guest-post/> accessed 3 April 2024.