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"id": 384227,
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"speaker_name": "The Senate Majority Leader",
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"legal_name": "Onesimus Kipchumba Murkomen",
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"content": "(Sen. (Prof.) Kindiki): Mr. Speaker, Sir, I believe in freedom, immunities and privileges of this House. In any case, that is not an option, but what the law says. The last thing that I can do, given my background as an academic, is to try and muzzle anyone. My background as an academic is that I am used to freedom of thought and all manner of exchanges for the welfare of society and exchange of ideas. Mr. Speaker, Sir, if you allow me, I will proceed to say that the reason I am talking about Article 43 is because the right to health is a socio-economic right. All those rights, under Article 43, are subject to Article 22 of the Constitution, which talks about progressive realization of those rights. They are not rights that can be realized immediately. The right to health is in very few constitutions and Kenya is one of the most liberal Constitutions on this matter. So, even as we ask the Government to construct these facilities, we are treading in an area where even the most liberal democracies have refused to touch. In our Constitution, it is couched as a human right but subject to two things: One, progressive realization of those rights; two, subject to the availability of resources. I want to agree with the Senate Minority Leader, who is my learned senior but my junior in this House, that we need to make a decision to stick with Level 5 and talk about equipping Level 4 hospitals. The whole issue is about equipment and human resources much more than the physical existence of some of these facilities. We do not want to make our Constitution and its provisions in Article 43 look like an empty rhetoric that can undermine our Constitution. Mr. Speaker, Sir, before I sit down, I want to illustrate my point with a case that was decided by the Constitutional Court of South Africa on a similar issue. You can have laws which are so good but if you do not look at the contours that govern the implementation of those laws, you will put the country under a crisis and the legitimacy of the Constitution is questioned. In South Africa, where we have copied our Article 43 from, we have a similar provision. In the South African Constitution of 1996, Article 27(3) says:- “No one may be denied of emergency medical treatment” Two years after the passage of that Constitution, a person who had chronic kidney failure called Soobramoney filed a suit in the Constitutional Court of South Africa where he claimed that he had chronic kidney disease and because he had a right to health under the Constitution, especially the right to emergency medical treatment, he was entitled to permanent dialysis which he had been denied at the provincial hospital in Kwa Zulu Natal in Durban. The court went on to say many things and, of course, ruled against him saying the following things:- First, that the right to health is progressive; secondly, it is subject to available resources. So, the only thing the state could be put to task on is how it has used the available resources in the country to equalize the country and promote the right to health as opposed to saying, for example, the state must provide emergency The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate."
}