By AMOS MUOKI
The Constitution of Kenya, 2010 makes a bold and unequivocal promise. Article 43(2) declares that “a person shall not be denied emergency medical treatment.” On its face, this provision suggests that when life is at risk, access to care should not depend on wealth, status, or the nature of the health facility—public or private. Yet, the lived reality of many Kenyans raises a troubling question: Is emergency medical treatment a guaranteed right in practice, or merely an aspirational ideal on paper?
Emergency medical treatment is a constitutional right guaranteed in the Constitution, 2010 but its implementation faces challenges.
Emergency medical treatment is defined under section 2 of the Health Act, No. 21 of 2017 as “necessary immediate health care that must be administered to prevent death or worsening of a medical condition.” This definition captures the urgency and non-negotiable nature of emergency care.
Emergencies, by their very nature, do not wait for administrative processes, bed availability, or the ability to raise a cash deposit.
Medical research and practice identify emergencies across three broad categories. First are trauma-related emergencies arising from road traffic accidents, assaults, mob justice, penetrating injuries such as stabbings, snake bites, sexual assault, electrocution, and mass casualty incidents.
Second are medical emergencies such as loss of consciousness, asthma attacks, poisoning, drowning, epilepsy, severe hypertension, infectious disease exposure, cerebral malaria, heart attacks, and internal bleeding.
Third are obstetric emergencies, including labour complications, ectopic pregnancies, and abortion-related complications, many of which carry life-threatening risks for mothers.
The devastating consequences of denying emergency care were laid bare in the widely reported case of Alex Madaga in 2015. Mr Madaga, a 37-year-old man, suffered serious head injuries following a hit-and-run accident in Nairobi. What followed was an 18-hour ordeal that exposed systemic failures and ethical dilemmas within Kenya’s health system.
At Coptic Hospital and later at Ladnan Hospital, both private institutions a deposit of KSh 200,000 was demanded before admission. His wife, who had accompanied him throughout the night in the ambulance, could not raise the money. Admission was refused. By the time Mr Madaga was eventually admitted at Kenyatta National Hospital, his condition had deteriorated irreversibly. He died shortly thereafter. His death was not merely the result of injury, but of delay, delay occasioned by institutional refusals grounded in financial considerations.
The Madaga case starkly illustrated the tension between two competing interests: the constitutional right to emergency medical treatment and the commercial nature of private health care institutions. Do private hospitals, operating as profit-making entities, bear the same constitutional obligation as public hospitals? And if they fail to provide emergency care, what is the responsibility of the State?
In response to such tragedies, Kenya has taken significant legislative and policy steps. In 2017, Parliament enacted the Health Act, No. 21 of 2017, establishing a unified national health system encompassing both public and private providers. The Act reinforces the constitutional guarantee by prohibiting the denial of emergency medical treatment and by placing obligations on all health facilities to provide such care.
Further, in 2021, the Ministry of Health promulgated the Kenya Emergency Medical Care Policy 2020–2030. The Policy seeks to establish a functional Emergency Medical Care (EMC) system by integrating national and county health infrastructure, setting standards for quality emergency care, providing mechanisms for sustainable financing, and creating governance structures for emergency services. Importantly, the Policy aligns Kenya with the World Health Organization Resolution 72.16, which calls on all countries to ensure universal access to timely emergency care for the acutely ill and injured.
These reforms represent meaningful progress. However, enforcement remains the critical test. A right without effective enforcement mechanisms risks becoming hollow. For emergency medical treatment to be truly realized as a right, private and public institutions alike must be held accountable, and the State must play an active role in regulation, oversight, and financing.
When a Kenyan collapses, bleeds, convulses, or goes into labour, the Constitution does not ask whether they can pay. It does not distinguish between a public or private hospital. It speaks in absolute terms. The challenge before Kenya is to ensure that this constitutional promise is honoured not only in law books and policy documents, but in hospital corridors, emergency rooms, and ambulances where life often hangs in the balance.
The writer is legal commentator on constitutional and human rights issues.
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