Access to Medication in Kenya is A Constitutional Right, Not a Privilege

Health CS Aden Duale when he visited Tharaka Nithi County for Strategic Health Engagement to advance Taifa Care in December 2025.|MOH

The Constitutional right to the highest attainable standard of health

Article 43(1)(a) of the Constitution provides that “every person has the right to the highest attainable standard of health, which includes the right to healthcare services, including reproductive health care.” This provision firmly entrenches the right to health as a justiciable socio-economic right. It is not aspirational, nor is it subject to the goodwill of the government of the day.

The phrase “highest attainable standard of health” is broad and deliberate. It encompasses access to healthcare services, reproductive healthcare, physical and mental health services, and, critically, access to affordable and essential medicines. Without medicines, healthcare services are rendered ineffective, and the constitutional promise becomes hollow and unattainable to the standards required by the constitution.

Health as the foundation of other fundamental rights

Kenyans needs to understand that health is not an isolated right. It is foundational to the enjoyment of other fundamental rights and freedoms. Denial of access to essential medication directly threatens the right to life under Article 26 of the Constitution. Equally, it undermines the right to human dignity protected under Article 28. 

A person who cannot access life-saving medicine is placed in a position of vulnerability, dependence, and suffering that offends the inherent dignity of the human person. As courts have consistently recognized, the rights to health, life, and dignity are inextricably linked. Without health, life is imperilled; without life and self-worth, dignity is compromised.

The State’s obligations on the right to health

Article 43(1)(a) imposes clear obligations on the State. First, the State has a duty to prevent, treat, and control epidemics, pandemics, endemic, occupational, and other diseases. This includes ensuring that medical services and attention are available when sickness occurs.

Second, the State is obligated to give effect to other fundamental rights and freedoms, recognizing that health is indispensable to their exercise.

Third, the right to health extends beyond hospitals and clinics. It includes the underlying determinants of health, such as adequate food and nutrition, access to clean and safe water, proper sanitation, housing, safe and healthy working conditions, and a healthy environment.

Health, therefore, is a holistic concept grounded in social and economic conditions. Scholars have correctly observed that the right to health includes both freedoms and entitlements. On the one hand, individuals must be free from unwarranted interference in making medical decisions. On the other hand, the State has an obligation to ensure the availability of health facilities, services, and essential medicines.

The central role of medicines

The right to the highest attainable standard of health obligates the State to ensure that essential medicines are affordable and accessible. In Kenya, one of the major obstacles to realizing this right under Article 43(1)(a) of the Constitution has been intellectual property restrictions that limit the production and distribution of generic medicines. Generic drugs, which are therapeutically interchangeable with patented medicines, play a critical role in reducing costs, particularly in developing countries. Kenyan law recognizes this reality through Sections 58(2), 80(1), and 80(1A) of the Industrial Property Act, which empower the Government, on grounds of public health, national security, or public interest, to authorize the importation, manufacture, or supply of generic medicines without compensating patent holders. These provisions align with the Doha Declaration on TRIPS and Public Health, which affirms the right of World Trade Organization members to use intellectual property flexibilities to improve access to life-saving medicines.

However, this progressive framework came into conflict with Sections 32 and 34 of the Anti-Counterfeit Act, 2008, which prohibit dealings in counterfeit goods and allow the seizure of suspected products, including generic medicines. This conflict was challenged in P.A.O. & 2 Others v Attorney General, where HIV patients argued that restricting the importation and supply of generic Anti-Retroviral (ARV) drugs violated their constitutional rights to life, human dignity, and health. The petitioners depended entirely on free generic ARVs provided through a government partnership with Médecins Sans Frontières and required daily medication to survive. They contended that denying them access to these medicines would not merely limit their rights under Article 24, but would extinguish the core and essential content of their right to life.

In declaring the impugned provisions unconstitutional, the High Court adopted a contextual and sociological approach, emphasizing Kenya’s HIV/AIDS crisis and its devastating human impact. The Court held that laws restricting access to essential medicines directly threaten life, health, and human dignity, which are inseparably linked. It affirmed that the State’s obligation under Article 43(1)(a) is both positive and negative: the State must actively facilitate access to healthcare services and medicines, and must also refrain from legislative or administrative actions that hinder such access.

Consequently, any law that renders essential medicines unaffordable or inaccessible violates the Constitution and undermines the State’s duty to protect the right to health.

The State’s positive and negative duties

The significance of this decision lies in its clarification of the State’s obligations. The right to health imposes both positive and negative duties. Positively, the State must take measures to ensure access to healthcare services and essential medicines. Negatively, it must refrain from enacting or enforcing laws and policies that hinder access to such medicines. Any legislation or administrative action that renders essential drugs unaffordable or inaccessible violates the Constitution.

Conclusion

Access to medication in Kenya is not an act of charity, nor a favour from the State. It is a constitutional entitlement grounded in the right to the highest attainable standard of health. As Kenya continues to reform its healthcare system and pharmaceutical policies, the guiding principle must remain clear: no law, policy, or commercial interest should stand between a patient and life-saving medicine.In Kenya’s constitutional order, denying access to essential medication is not merely bad policy it is unconstitutional.