This case was filed on behalf of two petitioners who were admitted to Pumwani Maternity Hospital—Kenya’s largest public maternity hospital—to deliver their babies and were subsequently detained for their inability to pay the hospital fees. The first petitioner, Millicent Awuor (Maimuna), gave birth to a baby girl on September 20, 2010. When it was time to be discharged, Maimuna did not have the money to pay the hospital fees. Instead of releasing her pending payment, the hospital staff detained her at the hospital in an overcrowded ward for 24 days; the time it took for her family to gather the necessary funds to pay her bill. During this time, Maimuna gave her bed to her newborn daughter and slept on the floor next to a flooding toilet, causing her to contract pneumonia. During her detention, she did not receive post-natal care and was mistreated by the nurses.
The second petitioner, Margaret Anyoso Oliele, was detained and abused twice at Pumwani while seeking delivery services during different pregnancies. During the first visit, she was supposed to be discharged five days after her Cesarean section, but was instead detained due to an inability to pay her bill in full. For more than a week, she was held at the hospital until her husband was finally able to pull together money to cover her delivery expenses. During a subsequent pregnancy, Margaret arrived at the hospital bleeding, and although she was seen by a doctor, nurses informed her that they would not allocate a bed for her until other patients vacated the beds. Still bleeding, she was left sitting on a bench until her condition worsened to the point that she was rushed into surgery. After undergoing a Cesarean section, she was again detained because she was unable to pay the bill in full. During Margaret’s detention, hospital nurses refused to dress her surgery wounds and would not let her go outside, as they were concerned she would run away. After five days, she was finally released and had to go to a private clinic for treatment for her infected surgical wound.
On December 7, 2012, MA and MAO filed a petition against The Honorable Attorney General, the Minister for Local Government, the Respondent City Council of Nairobi, the Minister for Medical Services and Pumwani Maternity Hospital, alleging violations of several of their constitutional rights guaranteed under the Constitution, because of their unlawful detention at the hospital.
The High Court reaffirmed that Kenya’s Constitution guarantees the right to health, including reproductive health care, under Article 43, and the right to non-discrimination and equality before the law under Article 27. The Court also established that Article 21(2) of the Constitution imposes on the state the obligation to take appropriate measures to achieve progressive realization of the rights, as guaranteed under Article 43.
Moreover, the Court found the respondents in violation of Article 29 of the Constitution, which protects the right to freedom and security of the person, for detaining and preventing the petitioners from leaving the Pumwani Hospital for failing to pay hospital bills. It also referenced Article 9(1) of the International Covenant for Civil and Political Rights (ICCPR) which provides that “No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” In this regard, the Court referred to General Comment No. 35 of the UN Human Rights Committee (HRC) which indicates that states are obligated under the ICCPR to protect persons against violations of the right to liberty by third parties including lawful organizations, such as employers, schools, and hospitals.
Considering several precedents regarding detention in Kenya and in other jurisdictions, the Court found that there was nothing in the law that mandated or authorized health institutions to detain patients or clients for non-payment of bills (See Isaac Ngugi v. Nairobi Hospital and Three Others, Petition No 407 of 2012, High Court, Kenya); Sonia Kwamboka Rasugu v. Sandalwood Hotel and Resort and Another (2013) Petition No. 156 of 2011, High Court, Kenya); and Malachi v. Cape Dance Academy International and Others, (2010) CCT 05/10 ZACC 13, South Africa Constitutional Court). Therefore, the High Court held that the detention of MA and MAO by Pumwani Hospital because of their inability to pay their medical bill was arbitrary, unlawful, and unconstitutional.
The Court also held that MA and MAO were treated in a manner that was cruel and degrading, citing the Inter-American Court of Human Rights in Miguel Castro-Castro Prison v. Peru, ((2006) ser. C, No. 160) and the European Court of Human Rights in RR v. Poland, ((2011) No. 27617/04), in which both tribunals held that the denial of essential reproductive health services to a woman caused mental suffering amounting to ill-treatment. The Court also referred to the case of Institute for Human Rights and Development in Africa v. Angola ((2008) AHRLR 43 (ACHPR 2008)), where the African Commission on Human and Peoples’ Rights (African Commission) established that conditions of detention where food was not regularly provided and detainees had no access to medical treatment amount to cruel, inhuman, and degrading treatment and was a violation of Article 5 of the African Charter on Human and Peoples’ Rights (Banjul Charter).
Also, the Court reiterated that the right to health and the right to dignity are inextricably linked, and that health care institutions ought to provide services and care that respect human dignity. The Court also said that even where detention would be lawful, the right to dignity would still have to be respected (Article 10(1) of the ICCPR). The Court therefore found that the petitioners had been treated in a manner that violated their right to dignity.
Furthermore, the Court reiterated that the right to health is not only guaranteed under Article 43 of the Constitution, but also recognized in Article 16 of the Banjul Charter and Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Court held that the right to health is indispensable to the enjoyment of other rights, and that it encompassed the positive obligation to ensure that services are provided, and the negative duty not to do anything that would affect access to health care services (See PAO and Two Others v. Attorney General, High Court Petition No 409 of 2009).
The Court also noted that in General Comment No. 14, the Committee on Economic, Social and Cultural Rights (CESCR) established to take the necessary steps to achieve the full realization of the right to health (Article 12(2)(d) of the ICESCR), states must ensure that health providers are trained to recognize and respond to the specific needs of vulnerable or marginalized groups. The state has a duty to fulfil a specific right when it was beyond the means of persons to realize the right. The High Court found that this was the case with the petitioners, who could not afford the health services. Consequently, the Court determined that the state had failed to fulfill its duty to provide affordable reproductive health services.
The Court noted that although the government had taken measures toward making reproductive health care accessible and affordable, it had also taken retrogressive steps by requiring user-fees for health services. The Court had regard to a publication by Alfred Anagwe, where the author showed that user fees disproportionately impeded women’s access to reproductive health care.
The Court then analyzed if the right of non-discrimination was violated in the present case, considering a range of international and regional protections of this right which require that states combat all forms of discrimination against women through appropriate legislative, institutional, and other measures. The Court affirmed that states must take corrective and positive action including reform of existing discriminatory laws and practices. Furthermore, the Court referred to CEDAW’s requirement that states take immediate steps to eliminate discrimination against women and ensure that the state and public authorities and institutions shall not engage in any practice or act that discriminates against women.
The Court took into account the African Commission’s Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, which establish that “(…) states should recognize and take steps to combat intersectional discrimination based on a combination of (but not limited to) the following grounds: sex/gender, race, ethnicity, language, religion, political and other opinion, sexuality, national or social origin, property, birth, age, disability, marital, refugee, migrant and/or other status.”
The Court found that the health system practiced systemic discrimination against women by denying services to those who could not afford them. It therefore held that the Kenya Government had failed to implement its obligation to provide maternal health services to women in a manner that was non-discriminatory and respected their dignity, and the ultimate consequence was failure to realize the right to the highest attainable standard of health for poor women. The petitioners were awarded global damages taking in account the conditions in which each petitioner was detained. MA was awarded Kshs 1,500,000 (equivalent to 15,000 USD) and MAO was awarded Kshs 500,000 (equivalent to 5,000 USD).