Theme: Advancing Equality and Justice through Constitutional Interpretation: The Rights of Marginalized Communities in a Democratic Society
I. RESEARCH QUESTION
To what extent does the right to health under article 43 of the Constitution of Kenya encompass autonomous decisions concerning one’s body and identity and how has domestic jurisprudence and international human rights standards shaped this right?
Background information and justification
The progressive nature of Kenya’s constitution, particularly its Bill of Rights, is often at odds with societal norms and traditions. This tension often disproportionately affects marginalized communities who face significant barriers to the full realization and enjoyment of their constitutional rights and freedoms. This paper is a fundamental inquiry into the very meaning of the right to health and its intersection with personal autonomy. This paper argues that the Constitution’s promises of equality and dignity cannot be fully realized as long as the law remains captive to outdated traditions
This research question is important as it moves beyond a simple statement of rights to interrogate the practical application of the law. It directly addresses the role of judicial interpretation in bridging the gap between constitutional promises and social reality. By analyzing how courts navigate the complex interplay of health, privacy and dignity, the paper seeks to uncover the extent to which judicial interpretation reconciles constitutional guarantees with prevailing social norms. The inclusion of regional instruments like the Maputo Protocol and African Charter is essential to this analysis since they provide an important interpretive lens for judicial decision making in the context of human rights. This investigation is therefore key to understanding the role of law in achieving substantive equality in a democratic society.
II. LEGAL NORM (MAJOR PREMISE)
Does the analysis of health anatomy and bodily integrity in Kenya have a solid foundation in the Constitution of Kenya (COK), 2010? And how is this foundation further strengthened by national statutes, regional human rights instruments and the judiciary’s interpretation of these laws?
The analysis of health autonomy and bodily integrity in Kenya is anchored in a multi layered legal framework, with the COK serving as the foundational norm. The judiciary’s interpretation of these provisions forms an important part of the major premise.
The Constitutional Framework
The cornerstone of the legal norm is Article 43(1)(a) of the Constitution[1], which provides that every person has the right “to the highest attainable standard of health, which includes the right to health care services, including reproductive health care”. This provision is a significant departure from previous legal norms as it moves beyond a narrow curative-centric understanding of health.[2] Article 43(2) reinforces this by adding a specific non-derogable right to emergency medical treatment.[3]
The right to health does not exist in a vacuum. Its full realization is linked to other fundamental rights, for instance, Article 28 guarantees every person’s inherent right to dignity and Article 31 establishes the right to privacy, which includes the right not to have information relating to one’s
health or family life unnecessarily revealed. The confluence of these rights is the true legal norm because the right to health autonomy is not only merely a matter of physical well-being but also a manifestation of an individual’s dignity and privacy. This transforms the state’s obligation from a negative duty (not to interfere) into a positive duty to create a health system that facilitates dignified, private and autonomous healthcare choices.
A person cannot genuinely enjoy the “highest attainable standard of health” if they are denied agency over their own body, if their medical information is not confidential or if they are subjected to degrading treatment in a healthcare setting.[4] Moreover, any limitation on the rights to health, dignity or privacy must be substantially justified under article 24 COK. This clause is essential in evaluating the legality of statutory provisions that tend to restrict these rights.
Statutory Provisions and Policies
The constitutional mandate is operationalized through various statutes such as the Health Act[5], which provides for a unified health system and establishes the principle of informed consent as the cornerstone of patient care. The Act’s definition of health mirrors the World Health Organization’s (WHO) expansive view, embracing a state of complete physical, mental and social well-being, rather than merely the absence of disease or infirmity.[6]
Nonetheless, legal anomalies do exist for instance, a profound one persists in the form of the Penal Code7, which predates the 2010 COK. Specifically, sections 158, 159 and 160 which continue to criminalize abortion and the provision of abortion-related services. This creates a direct and unresolved conflict with the COK,[7] particularly Article 26(4), which permits abortion under specific circumstances to protect the life or health of the mother, or if permitted by other written law.[8]Similarly, and more recently, the National Reproductive Health Policy[9] has become the subject of legal challenge, with petitioners arguing that its provisions impose unnecessary age limits and parental consent requirements that violate the right to health and freedom from discrimination.[10]
Regional and International Human Rights Instruments
The legal landscape is also shaped by regional human rights instruments that Kenya has ratified, recognized under article 2(6) of the COK. The Maputo Protocol[11], is a legally binding treaty that explicitly addresses reproductive health. Article 14(2)(c) of the Protocol is particularly significant as it mandates state parties to protect women’s reproductive health rights[12] by allowing medical abortion in cases of sexual assault, rape, incest and where the continued pregnancy endangers the mental or physical health of the mother.
The broader Banjul Charter[13] guarantees every individual the “right to enjoy the best attainable state of physical and mental health.”[14] These regional instruments establish a pan-African normative framework for human rights.[15] Kenya’s ratification of these treaties creates a strong legal and moral obligation to align its domestic laws accordingly, despite any initial reservations it may have entered.
III. RELEVANT FACTS (MINOR PREMISE)
Can one truly believe in Kenya’s constitutional promise of health and dignity when the actions of the government seem to undermine it at every turn? The practical application of the legal norms discussed above reveals a significant disparity between the law on paper and law in practice.
While informed consent and bodily integrity are constitutionally protected, they continue to be contested issues. The ruling in L A W & 2 others v Marura Maternity & Nursing Home[16] established that a person’s body is their own, even in a healthcare context.[17] However, the continued application of the penal code is a legal anomaly, a relic of a colonial past that stubbornly refuses to die. The terrible death of JMM, a 14-year-old girl, in the case of FIDA-Kenya and Others v Attorney General[18], is a tragic reminder of the real-world implications of this legal vacuum. The
government’s arbitrary deletion of safe abortion standards did not end the practice; rather, it drove it underground, transforming a health issue into a death sentence.
Furthermore, the prosecution of a kid and a healthcare provider in PAK and Another v. Attorney General[19] demonstrates the state’s ‘hypocrisy’ as they were unfairly arrested under a legislation that directly contradicts the COK.21 This relentless enforcement of obsolete legislation, together with the government’s questionable policy initiatives such as the challenged National Reproductive
Health Policy, reveals a frustrated refusal to connect with the COK’s progressive spirit (as provided under article 21(2)). This is obviously not legal ambiguity, but rather a clear and conscious failure to safeguard the most vulnerable.
IV. APPLICATION
“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”[20]
The application of legal norms to the relevant facts reveals that the Kenyan judiciary has, in fact, stepped up to this challenge, actively seeking to bridge the gap between constitutional promises and practical reality.
In my opinion, the judiciary’s reading of Article 43 shows a clear and admirable adherence to the notion that the constitutional right to health encompasses autonomous decisions about one’s body, identity and family life. This is demonstrated by the courts’ strong preservation of the right to informed consent and physical integrity in circumstances of forced sterilization.
The judiciary’s endorsement of the broad, WHO-based concept of “health” in instances such as the FIDA-Kenya case[21] is more than just an interpretive choice; it is a deep legal argument that broadens the scope of autonomy so, how can we claim that the courts are simply enforcing the law when they actively shape it? They are doing so by correctly acknowledging that decisions about reproduction are not only medical, but also fundamentally personal and societal.
Furthermore, I believe that Kenyan courts have correctly recognized that health, privacy and dignity are mutually reinforcing rights. In PAK’s case[22], the court, demonstrated that these rights are not secondary but rather essential.
If a breach of health autonomy is automatically a violation of the rights to dignity and privacy, does not this set a strong and important precedent for future legal actions? It undoubtedly does, establishing that the State’s duty to ensure the best achievable quality of health must be carried out in a manner that respects and protects the complete range of an individual’s fundamental rights.
Access to sexual and reproductive healthcare is a positive constitutional responsibility in Kenya. The verdicts in the cases of FIDA-Kenya and PAK[23] lend strong credence to this position.
However, the legislature’s failure to repeal the Penal Code and its arbitrary withholding of crucial health guidelines creates a “lacuna” that endangers the lives of women and girls.26 This aligns the judiciary with a “jurisprudence of exasperation,” as seen in the South African context, where the court compels the state to fulfill its constitutional obligations.[24] The judiciary has effectively accepted its role as the final arbiter of constitutional rights.
In this context, the courts have proactively filled this hole, utilizing their interpretive authority to match statute law with the supremacy of the Constitution.[25] They have properly highlighted that the right to reproductive health, including safe abortion in constitutionally allowed situations, is a positive right that requires the state to give access to services and information, rather than a negative one (freedom from government intervention). This highlights the judiciary’s critical role as a bulwark against legislative and executive failures to preserve the Bill of Rights, as well as a stimulant for the progressive realization of rights.
Finally, the shaping power of regional instruments cannot be understated; they are more than just persuasive authority; Kenyan courts have directly affected and validated them. The court in the
FIDA-Kenya case[26] illustrated this by not only relying on the Maputo Protocol to interpret the constitutional right to health, but also boldly proclaiming that Kenya’s reservation to the Protocol was in direct conflict with its own Constitution and could not be upheld. This judicial approach represents a pivotal development in the African legal system. By overriding political and legal objections, the court’s interpretation effectively translated the substance of the Maputo Protocol into national law.
V. CONCLUSION
The right to health under article 43 COK provides a framework for autonomous decisions concerning one’s body, identity and family life. This is not a standalone right but rather one that is deeply intertwined with the fundamental rights to dignity and privacy. The judiciary has emerged as a crucial institution in navigating the persistent conflict between this progressive framework and outdated statutory laws together with a lack of political will.
Through rights-affirming judgments, the courts have progressively interpreted the COK to uphold the principles of bodily integrity, informed consent and access to comprehensive reproductive healthcare. They have, undeniably, clarified that the right to health includes mental and social well-being and they have established that a violation of health autonomy is a simultaneous violation of dignity and privacy. Furthermore, by directly relying on and domesticating regional instruments like the Maputo Protocol, the judiciary has compelled the government to honor its human rights commitments.
VI. OUTLOOK
Based on the foregoing analysis, a multi-faceted approach is necessary to fully realize the constitutional promise of health autonomy in Kenya.
Legislative and Policy Recommendations
The most important proposal is that Parliament repeal or revise the Penal Code to align it with the COK, as well as the courts’ progressive jurisprudence.[27] In addition, the Government should formally withdraw its objection to Article 14(2)(c) of the Maputo Protocol. This would demonstrate the government’s steadfast commitment to preserving women’s and girls’ rights[28] and ensure that international commitments are fully aligned with domestic legal frameworks.[29]
The Role of the Judiciary and Structural Remedies
Continued judicial involvement is required to ensure the progressive realization of socioeconomic rights. The courts should consider using developing remedies, such as structural or supervisory interdicts, to ensure government compliance with court orders and to compel the executive and legislative branches to carry out their affirmative constitutional tasks. This would give a stronger tool for enforcing constitutional rights than just publishing a proclamation.
Broader Legal Context
The Kenyan experience is not unique; it is part of a larger trend in African jurisprudence in which a progressive and rights-based approach to constitutional interpretation is used to advance equality and justice for marginalized communities in the face of legal, cultural and political opposition. Kenya’s judicial protection of health autonomy and physical integrity sets a strong precedent for
other jurisdictions, demonstrating how the judiciary can act as a human rights vanguard when other arms of government fail.
BIBLIOGRAPHY
CASE LAWS Federation of Women Lawyers Kenya (FIDA) v Attorney General & another [2018] KEHC 7130 (KLR)
LAW & 2 others v Marura Maternity and Nursing Home & 3 others; International Community of
Women Living with HIV (ICW) (Interested Party); Secretariat of the Joint United Nations
Programme on HIV/AIDS & 2 others (Amicus Curiae) [2022] KEHC 17132 (KLR) PAK & another v Attorney General & 3 others [2022] KEHC 262 (KLR)
LEGISLATIONS
African Charter on Human and Peoples’ Rights, 1981
Constitution of Kenya, 2010
Constitution of the World Health Organization, 1946
Health Act, 2017
Penal Code (Cap 63)
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2003
SECONDARY SOURCES Books and Book Chapters
HAMILTON, Alexander (2001) ‘The Judiciary Department’ in: CAREY, G and MCCLELLAN,
J (eds.), The Federalist (Liberty Fund)
Journal Articles
GATHII, A (2019), ‘The Supreme Court of Kenya’s Jurisprudence on Socio-Economic Rights‘ 63 JAL 1
GATHONI, S (2022), ‘Interpreting the Right to Health in Kenya: A Case for a Holistic Approach to Bodily Integrity and Autonomy’ 7(2) Journal of Human Rights and Constitutional Law 121
MACHARIA, A (2023), ‘Exploring the alignment of the Kenyan Children Act, 2022 with the
Constitutional Paramountcy Principle, and the Three Optional Protocols to UNCRC’ 19 The Law Society of Kenya Journal 35
NGANG, Carol (2014), ‘Judicial enforcement of socio-economic rights in South Africa and the separation of powers objection: The obligation to take ‘other measures‘ (Chapter 16 Vol 2)
AHRLJ 32
NGWENA, Charles (2020), ‘Re-Imagining Health: A Feminist Analysis of the Right to Health in Kenya’ 28(2) Feminist Legal Studies 209
NGWENA, Charles (2012), ‘The Right to Health in the African Charter on Human and Peoples’ Rights: The Case of HIV/AIDS’ 12(1) African Human Rights Law Journal 13
OBONYO, K (2020), ‘The Paradox of Progress: The Interplay of Constitutional Guarantees and
Statutory Law on Reproductive Rights in Kenya’ 5(1) Journal of Reproductive Health and Law 56 ONYANGO, A (2017), ‘The Maputo Protocol and its Influence on Reproductive Rights in Kenya’ 21 EALJ 145
OWITI, O (2016), ‘The Role of the Judiciary in Advancing Socio-Economic Rights in Kenya: A
Critical Analysis of Article 43 of the Constitution’ 10(1) Kenya Law Review 78
Websites https://indconlawphil.wordpress.com/category/privacy/bodily–privacyintegrity/–Accessed
September 2025 https://www.cliffedekkerhofmeyr.com/news/publications/2024/Practice/Employment/combinedemployment–law–and–tax–and–exchange–control–alert–22–July–the–kenyan–high–court–delivers–ajudgment–on–the–social–health–insurance–act–2023–and–the–related–acts -Accessed September
2025 https://www.kelinkenya.org/a–step–toward–justice–challenging–kenyas–reproductive–healthpolicy -Accessed September 2025 https://www.kelinkenya.org/wp–content/uploads/2021/09/ENHANCING–PRIVACY–AND–
CONFIDENTIALITY–IN–THE–MANAGEMENT–OF–PUBLIC–HEALTH–DATA–1.pdf –
Accessed September 2025
National Reproductive Health Policy 2022-2032 https://nayakenya.org/wp–content/uploads/2020/04/Maputo_Protocol_POLICY_BRIEF–2.pdf Accessed September 2025 https://petrieflom.law.harvard.edu/2024/04/18/two–years–on–from–a–landmark–abortion–decisionin–kenya/ -Accessed September 2025
[1] Constitution of Kenya, 2010
[2] Gathoni. S. A, ‘Interpreting the Right to Health in Kenya: A Case for a Holistic Approach to Bodily Integrity and Autonomy’, Journal of Human Rights and Constitutional Law, vol. 7, no. 2, 2022, pp. 121-140.
[3] See also: Cliffe Dekker Hofmeyr, ‘The Kenyan High Court delivers a judgment on the Social Health Insurance Act,
2023 and the related acts’ (2024)
https://www.cliffedekkerhofmeyr.com/news/publications/2024/Practice/Employment/combined–employment–lawand–tax–and–exchange–control–alert–22–July–the–kenyan–high–court–delivers–a–judgment–on–the–social–healthinsurance–act–2023–and–the–related–acts, Accessed in September 2025.
[4] Kenyan Legal and Ethical Issues Network on HIV and AIDS (KELIN), ‘Enhancing Privacy and Confidentiality in the Management of Public Health Data’ (2021), https://www.kelinkenya.org/wpcontent/uploads/2021/09/ENHANCING–PRIVACY–AND–CONFIDENTIALITY–IN–THE–MANAGEMENT–OFPUBLIC–HEALTH–DATA–1.pdf, Accessed in September 2025.
[5] Health Act, 2017
[6] Constitution of the World Health Organization’s, 1946 7 Cap. 63
[7] Alice Wambui Macharia, ‘Exploring the alignment of the Kenyan Children Act, 2022 with the Constitutional Paramountcy Principle, and the Three Optional Protocols to UNCRC’ (2023) 19 The Law Society of Kenya Journal pg 35.
[8] Michael A. Fakhri, ‘Recent Case, Reproductive Rights, Kenyan Law, Constitutional Law, PAK v. Attorney General (2022) 262 K.L.R. 1 (H.C.K.) (Kenya)’ 136 Harv L Rev 733.
[9] National Reproductive Health Policy 2022-2032
[10] https://www.kelinkenya.org/a–step–toward–justice–challenging–kenyas–reproductive–health–policy/–Accessed September 2025.
[11] Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2003
[12] A. N. Onyango, ‘The Maputo Protocol and its Influence on Reproductive Rights in Kenya’ (2017) 21 EALJ 145.
[13] African Charter on Human and Peoples’ Rights, 1981
[14] Article 16, supra
[15] Charles Ngwena, ‘The Right to Health in the African Charter on Human and Peoples’ Rights: The Case of HIV/AIDS’, African Human Rights Law Journal, vol. 12, no. 1, 2012, pp. 13-39.
[16] LAW & 2 others v Marura Maternity and Nursing Home & 3 others; International Community of Women Living with HIV (ICW) (Interested Party); Secretariat of the Joint United Nations Programme on HIV/AIDS & 2 others (Amicus Curiae) [2022] KEHC 17132 (KLR)
[17] ‘Bodily Privacy/Integrity’ Indian Constitutional Law and Philosophy
https://indconlawphil.wordpress.com/category/privacy/bodily–privacyintegrity/, Accessed September 2025.
[18] Federation of Women Lawyers Kenya (FIDA) v Attorney General & another [2018] KEHC 7130 (KLR)
[19] PAK & another v Attorney General & 3 others [2022] KEHC 262 (KLR)
21Carmel R. O’Sullivan and Nneoma Agbo, ‘Two Years on from a Landmark Abortion Decision in Kenya’ (PetrieFlom Center, 18 April 2024) https://petrieflom.law.harvard.edu/2024/04/18/two–years–on–from–a–landmark–abortiondecision–in–kenya/ -Accessed September 2025.
[20] Alexander Hamilton, ‘The Judiciary Department’, in George W Carey and James McClellan (eds), The Federalist (Liberty Fund 2001) 351.
[21] Supra
[22] Supra
[23] 25 Supra
26
Obonyo. K, ‘the Paradox of Progress: The Interplay of Constitutional Guarantees and Statutory Law on Reproductive Rights in Kenya’, Journal of Reproductive Health and Law, vol. 5, no. 1, 2020, pp. 56-78.
[24] Judicial enforcement of socio-economic rights in South Africa and the separation of powers objection: The obligation to take ‘other measures’ (Chapter 16 Vol 2) [2014] AHRLJ 32
[25] Owiti O, ‘The Role of the Judiciary in Advancing Socio-Economic Rights in Kenya: A Critical Analysis of Article 43 of the Constitution’, Kenya Law Review, vol. 10, no. 1, 2016, pp. 78-95.
[26] Supra
[27] Gathii. A, ‘The Supreme Court of Kenya’s Jurisprudence on Socio-Economic Rights’ (2019) 63 JAL 1.
[28] Charles Ngwena, ‘Re-Imagining Health: A Feminist Analysis of the Right to Health in Kenya’, Feminist Legal Studies, vol. 28, no. 2, 2020, pp. 209-231.
[29] NAYA Kenya, Maputo Protocol: POLICY BRIEF (April 2020) https://nayakenya.org/wpcontent/uploads/2020/04/Maputo_Protocol_POLICY_BRIEF–2.pdf -Accessed September 2025.