As Kenya moves further into the 21st century, the country’s health system continues to face numerous challenges. Over the years, Kenya has navigated multiple public health crises, often at a high cost. While the nation has made commendable progress, its public health laws, some of which date back to the colonial era, remain woefully inadequate to address modern-day health threats.
A turning point in Kenya’s public health landscape occurred at the dawn of the 21st century when former President Daniel Moi declared HIV/AIDS a national disaster. This declaration came 15 years after the first recorded HIV/AIDS-related death in Kenya. It was the result of tireless advocacy from various sectors that highlighted the devastating impact of the disease. Following this, President Mwai Kibaki spearheaded a nationwide campaign against the epidemic, becoming the first African president to publicly address HIV prevention and treatment. His leadership saw substantial investments in HIV care, paving the way for a more robust health system response.
However, Kenya has faced numerous other public health challenges over the years. Diseases such as avian flu, swine flu, Rift Valley fever, cholera, measles, and more recently, Covid-19 and Mpox have all tested the country’s health system. While the global community struggled to contain the Covid-19 pandemic, Kenya too found itself unprepared. The country’s health system was tested to its limits, exposing critical gaps in public health laws.
The Covid-19 pandemic underscored a significant weakness in the country’s public health infrastructure: the lack of modern, comprehensive health legislation. During the pandemic, the Ministry of Health took reactionary measures, imposing quarantines, lockdowns, and travel restrictions to curb the spread of the virus. However, these measures faced legal challenges, with questions raised about their constitutionality. The Public Health Act, which governs these matters, was first enacted in 1921. Despite numerous amendments over the years, including the latest in 2012, the Act remains outdated, with provisions that no longer reflect the modern realities of healthcare delivery and epidemic control.
One of the biggest issues with the Public Health Act is its focus on diseases that are no longer immediate threats, such as smallpox, leprosy, and plague. The Act’s reliance on outdated methods of communication like telegrams and its neglect of air travel in public health protocols, make it clear that Kenya’s health laws have not kept pace with global advancements. Furthermore, the Act grants the Minister for Health excessive powers to enforce public health measures, but fails to address how these measures should be implemented in a manner that respects individual rights.
As we witnessed during the Covid-19 pandemic, many of the containment measures were both ineffective and constitutionally dubious. Quarantines and isolation were implemented without full regard for the financial burden on county governments, which were supposed to cover the costs of these measures. There were also significant gaps in communication, leading to confusion, public fear, and widespread misinformation. This undermined public compliance and worsened health outcomes not only for Covid-19 patients but also for those with other conditions, particularly in maternal and neonatal care.
The need for a more comprehensive and modern public health law has never been clearer. The current Act must be revised to reflect the evolving healthcare landscape, especially in the face of new diseases and emerging health threats. It should be flexible enough to address the rapid advancements in medical technology, including disease prevention, diagnosis, and treatment. Additionally, it must incorporate a “One Health” approach to ensure intersectoral collaboration in tackling health crises.
A critical reform must involve a clear alignment with the Constitution of Kenya, ensuring that public health measures are balanced with individual rights. The public health law must guarantee that health interventions, particularly in life-and-death situations, are carried out with due regard for human dignity and rights. Moreover, Kenya’s devolved system of governance requires that public health regulations account for both national and county-level coordination.
Furthermore, public health must be adequately funded. County health departments cannot continue to rely on token budgets and donor funding. The health budget must be reflective of the sector’s importance in safeguarding public well-being.
In the context of the Digital Health Act set to be implemented in 2025, it would be a grave error to move forward with a forward-looking initiative while the country’s foundational public health laws remain stuck in the past. The urgency for reform is clear Kenya’s health laws need an overhaul to meet the demands of a rapidly changing world, ensuring that the country’s health system is equipped to face both current and future public health challenges.
