Home Essays & Reviews Essay & Discussion “Miti Ni Dawa”: Traditional Medicine and The Realisation Of The Right To Health In Kenya

Essays & Discussions

“Miti Ni Dawa”: Traditional Medicine and The Realisation Of The Right To Health In Kenya

By Ms. Isaboke M. Wilmah[1]

The right to health is a right provided in Article 12 of the International Covenant on Economic, Social and Cultural Rights that emphatically provides that, it is a right to which everyone is entitled to enjoy, and not just enjoying it but, it should be the enjoyment of the highest attainable standard of physical and mental health. This right however is pegged on the States abilities to take steps to necessitate its full realization. These steps may include but not limited to enacting policies that allow the practice of Traditional medicine alongside modern medicine in order to realize the prevention, treatment and control of epidemic, endemic, occupational and other diseases. Usage of traditional medicine is what this paper intends to propound, that not only will it be a tool with which the Kenyan government can use as a method of realizing the highest attainable standard of health, but it can be used alongside modern medicine.

Introduction

Governments around the world strive to ensure that their populations have access to the best of the basic necessities of life such as education, shelter, food, water and health care. Their people on the other hand cooperate through paying taxes, providing labor and skills to ensure that they also enjoy these necessities of life. Health related issues of recent have been on the forefront of many governments such as those found in the Americas, Asia and the African regions. Prominent example is the United States of America Health care plan, African countries struggles of eradicating diseases such as malaria, HIV/Aids, promotion of maternal health among other health related issues and Asian countries drive to include traditional medicine in their healthcare systems such as China. All these efforts have consequently led to making the right to health a very central right in every region, and giving it a more significant place in the human rights sphere.

Health and International Human Rights Instruments

There are various International Human Rights Instruments that provide that the right to health is an indispensable right, right entitled to every person. One of these instruments is the United Nations Convention on Economic, Social and Cultural Rights which comprehensively provides for the right to health. Besides its comprehensive nature, the Convention has set up mechanism’s with which it uses to ensure the observance and enforcement of these rights by member States in progressively realizing the rights therein. The mechanism provided by the Convention is the Economic Social Council provided under Part IV of the Covenant.[2] In 1985, the Economic Social and Cultural Council under ECOSOC Resolution 1985/17 of 28 May 1985 created the Committee on Economic, Social and Cultural Rights to carry out the monitoring functions assigned to it in Part IV of the Covenant.[3] one such mandate involves the assessing of States health reports and making recommendations accordingly.

The right to health according to the Committee on Economic, Social and cultural rights is a “fundamental right indispensable for the exercise of other rights conducive to living a life of dignity”.[4]These other rights include but not limited to those rights provided under the numerous human rights convention that mandates States to ensure that their citizens have total enjoyment. Whilst agreeing to the position of the committee I hold the position that all the human rights are interrelated, in that the non-compliance of one breaks the chain that ensures the enjoyment of all. For instance, the enjoyment of the right to life, work, and education among others are hinged on the right to health, whereas the right to health can be realized if the right to food, water, education and so forth are observed.

Nevertheless, like all the other rights the right to health as the Committee stipulates is indispensable and it is not surprising that copious international human rights instruments recognize it as an important right. These instruments include, the universal Declaration of Human Rights which provides that the right to health is for everyone and is derived from the right of having adequate living standards, [5] International convention on the Elimination of all forms of Discrimination against Women,[6] Convention on the Rights of the Child,[7] International Convention on the Elimination of all forms of Racial Discrimination,[8] European Social Charter,[9] African Charter on Human and Peoples Rights,[10] Additional Protocol to the American Convention on Human Rights,[11] are some of those instruments that promote the right to health.

From the above, the interest of this paper shall be the ICESCR instrument which shall be referred to from time to time as the Covenant or Convention. Consequently, the Convention obligates States to fulfill the realization of those rights stipulated therein by adopting various appropriate legislative, administrative and other relevant measures.[12] Hence, one of those rights that need to be progressively realized as stipulated by the convention is the right to health. The provision providing for the right to health enunciates that:

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness[13]

The Committee so far explicitly maintains that the right to health should not be taken to mean as “the right to be healthy because it contains both freedoms and entitlements such as the freedom to chose ones health and body, sexual and reproductive freedom, non-consensual medical treatment and experimentation among other elements.’[14] It also stresses that it means ‘enjoying a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standards.”[15] The committee further states that it’s important for the population to be included in making health decision at the community, national and international levels and when taking all the above into consideration the following elements should be considered in regards to each State capacity: availability, accessibility, acceptability and quality.[16]

Under availability and accessibility, the committee propounds health services should be provided without discrimination, they should be economically and physically available to people including information on health issues.[17] In so far as acceptability and quality are concerned, the Committee believes that the health facilities, goods and services must take into account medical ethics and should be culturally acceptable.[18] What it does not propose however is how to measure and evaluate what is culturally acceptable, since its common knowledge that cultures differ from country to country and sometimes new cultures emerge. Therefore the lack on clarity on these issues might leave room for interpretation and in my view, culturally acceptable may include taking into account the traditions of people in a State and to be specific and in context, the use and practice of traditional medicine besides modern medicine.

Finally, the Committee has a standard which State parties must meet in relation to fulfilling their obligations stipulated in the Convention. According to the Committee States should be able to discharge their minimum core obligations. In General Comment No. 3 the Committee averred that:

“A State Party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is prima-facie, failing to discharge its obligation under the Covenant. If the Covenant were to be read in such a away as not to establish such a minimum core obligation, it would be largely deprived of its raison d’tre. By the same token, it must be noted that any assessment as to whether a State has discharged its minimum core obligations must also take account of resource constraints applying within the country concerned. Article 2(1) obligates each State part to take necessary steps ‘to the maximum of its available resources’. In order for a state party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations”[19]

In sum, State parties such as Kenya, have to adopt measures that will ensure that those rights stipulated in the Convention are progressively realized. The right to health accordingly falls among those Conventional rights.

Consequently, the main objective of this paper is to assert that traditional medicine is or could be one of the methods that States should utilize in progressively realizing the right to health for its citizens. As pointed earlier, the Convention and the Committee propound that health care services or goods should be accessible, affordable, be of quality and acceptable within the realms of medical ethics and appropriate culture but they do not stipulate whether it should be modern or traditional medicine in terms of prevention, treatment and control of diseases.[20] The use of traditional medicine falls within the realms of most acceptable and appropriate cultures and has been used by people for centuries as medicine in the world that it makes it easier to propound that States could or should accept their usage and categorize them as being one of their numerous methods of realizing the right to health. Besides, if considered carefully in an objective and realistic manner, traditional medicine if taken as a source, it is a natural resource within a States reach and could be used without the implications of thinking how to import it into the country. Further more, the Convention and the Committee maintain that citizens should “participate in all health related decision making at the community, national and international levels.”[21] Hence it will not be inept to ask, ‘What could be there to lose for a State that already has its own resources , man power already with skills, willing to learn and to refine their skills in accordance with set standards in order to participate, provide, and use in the quest of progressively realizing their right to health?.

Thus to substantiate my position, the following shall be analyzed in the remaining part of this discourse: definition of traditional medicine, modern medicine Vis a Vis traditional medicine as tools of realizing the highest attainable standard of health, Kenya’s health status Vis a Vis traditional medicine and finally conclusions and recommendations.

TRADITIONAL MEDICINE

Scholars and Traditional Medicine

Waldram James, maintains that the definition of traditional medicine remains problematic claiming that traditional medical systems have always been described under ethnomedicine and yet characteristically they are part of what is known as ‘religious or ritual healing’, which generally involves various methods of manipulation together with the use of plants and other herbs.[22]He further states that the practice of traditional medicine involves the transmission of information which is passed from one healer to the other.[23]

Fabricant and Farnsworth unlike Waldram provide a definition and aver that “traditional medicine for them is a broader term used to define non-western medical practices”. They believe that herbalist, shamanism or folklore as some may prefer to call it, is based on an apprenticeship system that is used to passing information from one generation to the other.[24] Despite their view on traditional medicine in their discourse, ‘traditional medicine in discovery of drugs’, they end up interchanging the use of the words ethnomedical with traditional medicine obscuring their whole view on traditional medicine as a western concept. For them, and in agreement with Waldrams earlier assertions, they posit that “to them, ethnomedicine may be defined broadly as the use of plants by humans as medicine, but this use could be called more accurately ethnobanoic medicine.”[25]

Irrespective of the difficulties and Confucianism in definition, these three scholars seem to agree on the following points, points that I think are important in understanding what traditional medicine entails: the healing nature of traditional plants or herbs, the use of herbs in drugs discovery and the passage of traditional information orally from one generation to the other by traditional healers.

Traditional Medicine and the World health Organization

The World Health Organization not only does it recognize the use of traditional medicine as a primary health care service, but also as a means of involving the people to duly ‘participate individually or collectively in the planning and implementation of their healthcare’.[26] It therefore promotes and advocates its usage alongside national modern health care systems around the world. It defines traditional medicine as “the sum total of knowledge, skills and practices based on the theories, beliefs and experiences indigenous to different cultures that are used to maintain health, as well as to prevent, diagnose, improve or treat physical and mental illnesses.”[27]

The organization maintains that the term 'traditional medicine’ involves various kinds of therapies and practices that are different from one region to another region and country to country.[28] In emphasizing its definition, the organization avers ‘alternative medicine’ or ‘complimentary medicine’ are terminology given by users of traditional medicine who are not the owners and that ‘herbal medicine herbs, herbal materials, herbal preparations, and finished herbal products that contain parts of plants or other plant materials as active ingredients’.”[29]

These definitions in my view are proper and accurate and give more insight compared to those provided by the scholars above.

Traditional Medicine and the UN Committee on Economic, Social and Cultural Rights.

The UN Committee on Economic and Social Rights recognizes the use of traditional medicine or alternative medicine as a way of achieving the right to health envisaged in the Convention. This recognition is evidenced by General Comment No. 14 where the Committee stresses the importance of Governments taking into account indigenous people’s ways of keeping their health in check and consequently cautions that removing indigenous peoples from their habitat or not providing mechanisms for them to control their recourses will have adverse effect to their health, and eventually compromising their right to health."[30]The Committee considers that, " indigenous peoples have the right to specific measures to improve their access to health services and care and that these health services should be culturally appropriate, taking into account traditional preventive care, healing practices and medicines.” [31]

Therefore, though having not provided a definition one can infer and provide that the Committee supports or rather does not discourage the notion of using traditional or alternative medicine by States in the pursuit of realizing the full enjoyment of the right to health.

Modern Medicine Vis a Vis Traditional Medicine.

Modern medicine, contemporary or western medicine as referred by many scholars such as Larkin Gerald, involves the use of pharmaceutically prepared medicine, biotechnology in a health care system that involves seeking the assistance of professionalized service provided around the clock, with governmental policies backing it up.[32]According to him, this is unlike the use of traditional methods characterized by community healer’s expertise and non documented evidence of its potential, contributing to its less revered position in the occupational field of medicine.[33]

Larkins position is all too familiar with the current status of many health care systems in the world. Very few countries have incorporated the use of traditional medicine into their health care systems and their realization of the right to health can be seen to tremendously improve, for example china. While most countries are struggling to provide modern medicine, what they do not consider is the existing resources, natural medicine in their own back yard.

Perhaps one can attribute the lack of incorporation to the fears of either the lack of control and abuse of it if legalized or modern medicine conflicting with traditional medicine and further, the possibility of traditional medicine taking over. Out doing perhaps would be too far a step to suggest with industrialization process in the world, especially drug manufacturing sector aimed at reaping profits and the concept of professionalism in the employment sectors such as the medical field where all kinds of practitioners become based on various medical ailments and innovations.

The World Health Organization champions the careful use of alternative medicine alongside modern medicine as long as safe guards are put in place to avoid exploitation and abuse of people seeking to use its resources as a way of realizing the right to health. According to the Director General of World Health Organization address in Beijing, Dr. Margaret Chan, she believes by deriving illustrations from China health care system,  traditional medicine can be used concurrently with modern medicine in providing primary health care despite the fact that it can not always be a substitute for the highly effective modern medicine and its emergency measures.[34]

She goes forth to state that in reality, traditional medicine is being used by many people in the world like Asia, Africa to Latin America and that the class that most depends on it are millions of people living in the rural areas, because of its affordability, accessibility and the trust of its healing nature and the traditional healers expertise.[35]She further states that facts have shown that in recent times most affluent people in the society have turned to the use of complementary therapies and as a result it has become a multibillion sector. While referring to different carried out researchs as to the reasons of this change, she comes to the conclusion that the use of alternative medicine has been resorted to, due to the depersonalized medical care and dwindling numbers of trained personnel.[36]

While accepting the Director General’s position from the foregoing I would like to defer from her view that the resort to alternative medicine is based on depersonalization of modern medicine. For centuries, indigenous people in the world have relied on their traditional healers, even with the evolution of medicine which is basically derived from processing of herbs has not fettered their faith in the use of traditional medicine in the world. It is true that without safe regulation and implementation of procedural safe guards, traditional medicine maybe exploited, this truthfulness applies as well to the highly effective modern medicine. From scandals of corruption in drug funds, usage, surgeries carried out by medical practitioners on victims to harvest and traffic organs, deaths caused by poor administration of drugs by poorly trained doctors or fake doctors are some of the day today inadequacies of the revered modern medicine.

As the director posits, there is no need for alternative medicine and modern medicine to conflict if procedural safeguards such as enactment of policies, legislation, and training of traditional healers on health standards, certification, advocacy and providing education to practitioners in both systems are put in place. Education to be provided should not be limited to the advantage of traditional medicine, but should also incorporate tools and means on how the two systems can tolerate each other, work together in order to provide efficient, quality and quick medical services. By so doing, it may lead to Countries providing highest attainable standard of health whose consequences might just be the achieving of the health related millennium development goals in the world. Therefore if this is done and States come to accept traditional medicine as complimenting the modern medicine the question which system should or would presides over the other would not arise.

KENYA HEALTH STATUS.

Kenya a country found in the African region in East Africa like many other States around the world apart from fighting poverty, unemployment, economic problems endeavors to provide to its citizens equitable access of affordable, quality basic health services and in accordance with convention and the Committee expectations.[37] Compared to other countries in the world (third world countries), Kenya health status is at best fair at present and to understand it better a summary of it is as follows. According to the national census carried out in 2010, Kenya has an estimated population of 39.1million of which 75-80 % live in the rural areas, it has a total fertility rate 4.9 Infant deaths per 1,000 live births, 67 Maternal deaths per 100,000 live births 560 Girls aged 20-24 married by age 18 (%) 25 HIV/AIDS prevalence (%) 7.4 Living below US $2 per day (%) 40 and a gross national income of 770.[38]It is also reported that Kenya population struggles with various types of disease from non-communicable rated as the most prevalent, Sense organ diseases, Oral conditions, Skin diseases, Other neoplasm’s, Musculoskeletal diseases, Endocrine disorders, Genitourinary diseases, Neuropsychiatry conditions, Congenital anomalies, Diabetes mellitus, Digestive diseases, Respiratory diseases, Malignant neoplasm’s, Cardiovascular diseases and others not mentioned.[39]

Kenya Discharging its Minimum Core.

Kenya is a party to the IESCR and therefore is expected to live up to the commitments it has bound itself under the Covenant. Living up to its commitment if I may recall according to the Convention and particularly from the position of the Committee, it is to at least fulfill some minimum core obligations. It may include but not limited to facilitating, promoting and providing measures, by way of adopting legislative frameworks to operationalise their strategy with the right in context.[40] The Committee expects that State parties, such as Kenya should provide a minimum core to which every person in need is entitled to depending with the available resources within its reach.

In view of the fact that the focus of this paper is the use of traditional medicine as a form of realizing the right to health, one might wonder how the Kenyan government has been providing health services to its citizens and especially in curing the maladies summarized above. The answer to this question is within the comprehensive Kenya Health Policy Framework 1994-2010.Prior to the coming in of the new Constitution Act of Kenya 2010, Kenya did not recognize right to health in its former Constitution but did the same by providing health services to Kenyans through the Kenya Health Policy framework, thereby living up to its obligation in the Convention.

Kenya’s New Constitution Act of 2010.

The new Constitution Act has elevated this right to a whole new level. This assertion may be followed with a question, why and the simple answer is the force of a Constitution. Before proceeding it’s important to state that given the fact that the Constitution is still new and implementation of the section mentioned below may take a while, and further, based on the fact that Kenya is relying on the Comprehensive health policy framework, this paper shall not look into the implementation of the constitution provision. But shall provide the section and reasons why it has elevated the right to health to a whole new level.

The Constitution thus strongly points out as follows under Article 43:

43. (1) Every person has the right—

(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;

(b) to accessible and adequate housing, and to reasonable standards of sanitation;

(c) to be free from hunger, and to have adequate food of acceptable quality;

(d) to clean and safe water in adequate quantities;

(e) to social security; and

(f) to education.

(2) A person shall not be denied emergency medical treatment.

(3) The State shall provide appropriate social security to persons who are unable to support themselves and their dependants.[41]

With this development its appropriate to acknowledge Kenya’s efforts and perhaps hope it shall be the key to Kenya’s way of fully recognizing that the right to health, first, is a constitutional right entitled to every Kenyan, second, without prejudice to the existing policy , that it’s a concrete way of respecting its constitutional responsibilities and those it has committed itself under the ICESR and third, it has provided an avenue for Kenyans to claim their right to health through advocacy and through the Courts of Law.

To illustrate the importance of constitutionally recognizing this right , I do refer to the South Africa Case of Thiagraj Soobramoney v Minister of Health[42] where the Constitutional Court, dismissed the applicants claims brought under article 11 and 27(2) of the South African Constitution for failing to establish that the State was in breach of its obligations of providing emergency medical care in so far as the provision of dialysis to chronically ill patients was concerned. Despite finding no breach, the Court emphasized that persons can claim a breach of their right to health directly under Article 27 without relying on the right to life of the Constitution because it’s a recognized constitutional right and therefore States are constitutionally obliged to respect those rights. It went further to emphasize that however, in claiming the enforceability of these rights, reality has to be taken into consideration especially the difficult task States face in apportioning and utilizing the constrained resources to various sectors within its reach.

In a subsequent case of Government of the Republic of South Africa and Others v Grootboom and Others,[43] the Constitutional Court found a violation of the right to housing by the government, because the governments housing policy in the area of Cape Metropolitan council failed to make reasonable provision within available resources for people living in that area who had no access to land and no roof to cover their heads. The Courts as held in Sooobramoney case stated of the difficulties encountered by States and which needed to be taken into Consideration. Accentuating the States constitutional obligation, Yacoob J stated that, “….The constitution obliges the State to act positively to ameliorate these conditions. The obligation is to provide access to housing, health care, sufficient food and water, and social security to those unable to support themselves and their dependants. The State must also foster conditions to enable citizens to gain access to land on an equitable basis. Those in need have a corresponding right to demand that this be done.”[44]

Therefore, from the fore going it is just to expect that Kenya shall be able to provide health related services, and maybe include traditional medicine as a source or resource or as a “wide range of possible measures it could adopt', in its policies in realizing the right to health as held as provided in the Constitution and emphatically stressed in the Grootboom case.[45]

Kenya’s health Policy Framework.

The comprehensive Framework has been the vehicle with which the Kenyan government has and is still using in promoting the right to health. The Policy precisely emphasizes that, the role of the government in ensuring the enjoyment of the right to health is primarily by having a health policy. It on the other hand propounds that “all persons in a society are responsible for creating the conditions that ensure the health stock available is maximized. The primary responsibility, however, for ensuring the conditions for good health exists for the population lies with the public authorities and administration – the stewards selected by the population to guide them towards improvement in their welfare.”[46] It contains six goals, one of them of interest to this paper, is the involvement of the community/private sector in realizing these goals which include:

1. Ensure equitable allocation of Government resources to reduce disparities in health status

2. Increase the cost effectiveness and the cost efficiency of resource allocation and use

3. Continue to manage population growth

4. Enhance the regulatory role of the Government in all aspects of health care provision

5. Create an enabling environment for increased private sector and community involvement in health service provision and finance

6. Increase and diversify per capita financial flows to the health sector.[47]

In order to realize these goals, the government devised medium focused strategic plans which are in three phases namely:

“1. The KHPF implementation plan, 1994 – 1999.

2. The 1st National Health Sector Strategic Plan I (NHSSP I). This had, as its strategic objectives, (i) strengthening governance; (ii) improving resource allocation; (iii) decentralization of health services and management; (iv) shift of resources from curative to preventive and PHC services; (v) provision of autonomy to provincial and national hospitals; and (vi) enhancing collaboration with stakeholders under a Swap modality.

3. The 2nd National Health Sector Strategic Plan of the KHPF (NHSSP II, 2005 – 2010). This had, as its strategic objectives, ‗to contribute to the reduction of health inequalities and to reverse the downward trend in health related impact and outcome indicators’ that had been noted during the implementation of the NHSSP I. It‘s strategic objectives were to (i) Increase equitable access to health services; (ii) Improve quality and the responsiveness of services in the sector ; (iii) Improve the efficiency and effectiveness of service delivery; (iv) Foster partnerships in improving health and delivering services; and (v) Improve financing of the health sector. It provided, for the 1st time, a comprehensive, output and performance oriented strategy.”[48]

Through partnerships with non-governmental organization, the private sector, and ordinary traditional method of donor funding from major countries like the US, UK, Japan and European commission, the government of Kenya has been able to considerably improve the provision of health care service in Kenya under this strategic framework.[49] Therefore one could assert that the first phase and second half of the medium focus terms have improved health situations in Kenya.

However like a coin that has two sides with different elements, the framework has had its strengths and weakness. According to the Ministry of Public Health Strategic Plan Report 2009-2014, the first medium was inadequate, these inadequacies manifested in “the existing information systems and included lack of guidelines and policy, inadequate capacities of HIS staff, lack of integration, many parallel data collection systems, and poor coordination, amongst others.”[50]

Wamai, adding to these deficiencies acknowledges Mwabu’s views that, “a country’s healthcare system may be analyzed on the basis of the healthcare infrastructure, the players and their roles, and financing mechanisms.”[51] He propounds after analyzing the Kenya health status that utilization rate of the healthcare facilities still remains a problem and highly caused by the health costs which hinder majority from accessing health services.[52] In broadening his augmentation he comments on the distance to various health centers and hospitals around the country, poor or lack of infrastructures, allocation of funds and medicine to these infrastructures, staffing, corruption and politicizing.[53]

Besides the short comings observed, I appropriately discern that Kenya is living up to its obligation to fulfill and progressively realizing individual’s right to health in its territory. However, it could effectively and efficiently provide high and better quality health care system that is accessible, equitable and affordable for every Kenyan if it could additionally include the private sector contributions immensely. By private sector I mean involving traditional healers with their traditional medicine.

Traditional Medicine Usage in Kenya

The use of traditional medicine in the world is not a new phenomenon. According to the World Health Organization, 65 percent of the world’s populations have incorporated the use of plants as therapeutic into their primary modality of healthcare.[54] Kenya is not an exception as evidenced by the WHO estimate that at least eighty percent of the Kenyan population has used herbal medicine before.[55] The Kenyan Chief Pharmacist Kipkerich Koskei address about traditional medicine usage in Kenya, the trust relationship between his sector and the traditional healer’s medicine, and the quest of hunting crooked traditional healers affirms the WHO findings.[56] A further example that indicates the usage of tradition medicine is the 2008 recommendations of the International Expert Group Experts on Biotechnology, Innovation and Intellectual Property urging the Kenyan government to develop laws and policies for the protection of traditional knowledge like herbal medicine together with the undertaking that consultations with the communities that hold them shall be adhered to, and also encourage those communities to share their knowledge.[57]

The percentage found by WHO may be found by many especially those from outside Kenya to be unbelievable, but for me being a Kenyan it’s not surprising at all. Kenya has a total of 46 tribes with different diverse cultures, cultures that have over years believed in the healing nature of herbs or use of plants surrounding them. The belief in herbs is so entrenched that the usage and properties related to it is passed from generation to generation to the effect that there is a nationally recognized proverb in Swahili that articulates “miti ni dawa” meaning in English ‘herbs or trees are medicine’.

The passage of information is passed through the training of the younglings from a tender age to discern the various healing plants with the aim that they will eventually become healers in their respective cultures. Fabricant and Farnsworth affirm the practice of passing information by defining terms like shamanism, herbalism and folklore as “centers for apprenticeship system of information passed to the next generation through a shaman, curandero, traditional healer, or herbalist.”[58] They further state that this information is kept secret and can only be used by a practitioner, little is recorded about the prescription and healing process and therefore making the herbalist have the roles of pharmacist and medical doctor in his community.[59]

With passage of time, traditional medicine has come to be commercialized not only in Kenya but also in the rest of the world. The Director General of World health organization attests to these by pointing at Chinese medicine. Therefore finding the below advertisement in the streets of Kenya is neither perturbing or should be found to be so. Figure

This is an example of one of the many advertisements that beautify the cities of Kenya. In summary it’s to the effect that, the traditional healer Professor, Dr. Mohammed Ali can heals the listed diseases at a very cheaper fee and efficiently using traditional herbs. If I may translate a few of them in English they include but not limited to : Miscarriage, epilepsy, syphilis, gonorrhea, Asthma, Skin diseases, any kind of disease related to HIV/Aids, Anxiety, respiratory diseases, varicose veins and so forth.

The Kenyan Communities or tribes despite having various types of traditional medicines comprehended within their relevant tribes, have also many that are similar at the same time, used for the same purpose but bearing different names or prepared differently. For example, the Kisii and kikuyu believe that a certain plant called ‘omooarubaini’ can cure diarrhea, headaches and migraines, and respiratory diseases and therefore it can be argued that with these similarities it can not be difficult to find such an acclaimed healer selling his trade or as stated earlier traditional medicine becoming commercialized, for there is some uniformity in their healing for some plants.

Accordingly, asserting that the belief in the usage of traditional medicine maybe because of depersonalization of modern medicine could be misplaced, because by looking at the Kenyan perspective, their belief in traditional medicine could be considered as constituting one of the reasons why many do not utilize modern medicine provided by the government hospitals and private clinics. Non-utilization of medical care as Wamai propounds maybe attributed to the belief of people in traditional medicine and not necessarily costs. Even if it was costs perhaps it’s the cheapness of the services and the availability of it everywhere, especially in the rural areas where the government has not provided any health facilities or if it has there are inhibitors such as long distance constituting a barrier for the people within that locality to access the health facilities. The government introduced mobile clinics but they have proven not to be efficient as such due to reasons such as fuel cost, poor infrastructure few mobile clinics and as a result not all rural areas in need have been provided for.

From this point it is clear that Kenya has done some substantial efforts in the health related sector, however it still has a lot to do because if it had fully realized this obligations or providing for its citizens, Kenya would not be having people dying of malaria, HIV/AIDS, and other related diseases.. The Committees General comment No. 3 clearly states that a State party to the Convention is obliged under Article 2 to adopt all necessary steps to the ‘maximum of its available resources’ and further before it bases its ‘failure to meet the minimum core to a lack of resources it must demonstrate that all efforts have been made, including the use of all resources that are at its disposition.

In my opinion I believe that Kenya has achieved its minimum core but it could do better than getting at the minimum core by using traditional medicine as a resource within its reach, besides modern medicine to provide the people in the rural areas, as well as the whole population in the country, who wish to use traditional medicine as a measure of living up to its constitutional obligations and those it has bound itself under the IESCR.

I do further opine that the government can easily provide framework’s, legislations and other measures because there is an already existing research centre, Kenya Medical Research Institute that has the mandate to undertake researches on traditional herbal medicine in Kenya. Hitherto, it is believed that it has been successful in its mandate and it is on the verge of treating some sexual disease such as herpes using traditional herbs.[60] It has also taken the initiative of involving farmers around the country to cultivate some of the herbs they require for their research, in a way involving the community and also providing them with an income generating activity[61]. Together with this is the Pharmacy and Poisons Board, a drug regulatory authority established under the Pharmacy and Poisons Act, Laws of Kenya, whose mandate is to regulate the manufacture and trade in drugs and poisons and regulating the practice of pharmacy in Kenya, implying there from, that they are supposed to test herbal medicine being brought into the Kenyan market.

CONCLUSIONS & RECOMMENDATIONS

While acknowledging the fact that there may be consequences that might flow from formally recognizing traditional medicine, especially those caused or may be caused by dubious traditional healers, it is not proper to use these consequences as leverage not to include traditional medicine in any health care system. Countries such as China have been able to incorporate it into their systems and are using it hand in hand with modern medicine efficiently.

It is not everyday that everything works out as a miracle but sometimes patience and time have to be taken into account if there is the need to prosper. There is no ruling out that traditional medicine will not present health or economic related repercussions if formally recognized in Kenya, because there are already repercussions. However, learning from that and improving on it could probably be the way out to improving the health of many. Besides, people everyday die from using and relying on modern medicine, but no debate has emerged to say we should abolish its use.

Therefore, the following are some of the recommendations put forward to the Kenyan government:

· The Government of Kenya should put in place mechanisms or strengthen the existing mechanisms to keep in line with its Constitutional obligations and those it has bound itself under the Convention.

· Formally recognize the potential of traditional medicine by providing frameworks and legislations.

· Formulate trainings directed at educating traditional healers on safe practices as well as education targeted at the two systems to tolerate each other and work together.

· Improve infrastructure in the country, build more hospitals, train more medical personnel, improve the medical personnel’s conditions for effective execution of their duties especially those living in dry and difficult parts of the country and increase the number of mobile clinics.

· Through the Anti-corruption body, the Kenya Anti-Corruption Commission deals with embezzlement of health funds and stealing of drug.

· The Government through its Research Institute and Pharmacy Board can liaise with prominent traditional healers from different tribes in finding out on the healing potential of various plants.

· Consult with International Organizations working on traditional medicine such as the World health Organization and Countries that have already incorporated traditional medicine into their health system and have data bases on traditional healing plants to streamline its own. After all the ICESR, provides in Article 2 (1) as follows:

Each State party to the present Convention undertakes to take steps, individually and through international co-operation, especially economic and technical, to maximum of its available resources, with a view to achieving the full realization of the rights recognized in the present covenant by all appropriate means, including particularly the adoption of legislative measures.[62]

Finally, the Judicial system of Kenya should be in the fore front of ensuring that Economic, Social and cultural rights are justiciable as provided by the constitution. The system can emulate the jurisprudence of the South African Constitutional Courts or others in the world in ensuring that the Government of Kenya respects its Constitutional obligations.

References

[1]Ms. Isaboke Moraa Wilmah is currently a Post Graduate Student at Central European University Budapest Hungary, undertaking LLM in Human Rights at the Legal department. She is an enrolled Advocate of the High Court in Uganda and has worked at Refugee Law Project Faculty of Law Makerere University – Kampala, Uganda, providing Legal Aid Services to Forced Migrants.

[2] UN Convention on Economic, Social and Cultural Rights 1966

[3]ICCPR

[4] UN Doc Committee on Economic, Social and Cultural Rights, General comment E/C.12/2000/4, Twenty – Second Session Geneva, 25 April -12 May 2000 Agenda item 3. http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/710b5df710e1e1c7802568a20041f7c6/$FILE/G0040552.pdf

[5] Article 25 (1), Universal Declaration of Human Rights 1948: “Everyone has the right to a standard of living adequate for the health of himself and of his family”.

[6] Article 12, Convention on Elimination of all Forms of Discrimination Against Women 1979: “1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning. 2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.”

[7] Article 24, Convention on the Rights of The Child 1990

[8] Article 5 (e) (iv), International convention on the Elimination of all Forms of Racial Discrimination 1965

[9] Article 11 of the Revised European Social Charter 1961.

[10] Article 16of the African Charter on Human and Peoples Rights 1981.

[11] Article 10 of the Additional protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988.

[12] Schutter Oliver, “International Human Rights Law: Cases, Materials, Commentary”, Cambridge University Press, Cambridge Uk, 2010.p461

[13] International Covenant on Economic, Social and Cultural Rights Article 12.

[14] UN Doc Committee on Economic, Social and Cultural Rights, General comment E/C.12/2000/4, Twenty – Second Session Geneva, 25 April -12 May 2000 Agenda item 3. p. 3 para 8 http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/710b5df710e1e1c7802568a20041f7c6/$FILE/G0040552.pdf

[15] UN Doc Committee on Economic, Social and Cultural Rights, General comment E/C.12/2000/4, Twenty – Second Session Geneva , 25 April -12 May 2000 Agenda item 3. p.3 para 9 http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/710b5df710e1e1c7802568a20041f7c6/$FILE/G0040552.pdf

[16] UN Doc Committee on Economic, Social and Cultural Rights, General comment E/C.12/2000/4, Twenty – Second Session Geneva, 25 April -12 May 2000 Agenda item 3. p. 3-4 para 11-12. http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/710b5df710e1e1c7802568a20041f7c6/$FILE/G0040552.pdf

[17] UN Doc Committee on Economic, Social and Cultural Rights, General comment E/C.12/2000/4, Twenty – Second Session Geneva, 25 April -12 May 2000 Agenda item 3. p. 3-4 para 11-12. http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/710b5df710e1e1c7802568a20041f7c6/$FILE/G0040552.pdf

[18] UN Doc Committee on Economic, Social and Cultural Rights, General comment E/C.12/2000/4, Twenty – Second Session Geneva , 25 April -12 May 2000 Agenda item 3. p. 3-4 para 11-12. http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/710b5df710e1e1c7802568a20041f7c6/$FILE/G0040552.pdf

[19] UN Doc, Committee on Economic, Social and Cultural Rights, General comment No. 3 “The nature of State Parties Obligation (Article 2, para.1)” 14/12/90 para 10: http://www.unhchr.ch/tbs/doc.nsf/0/94bdbaf59b43a424c12563ed0052b664?Opendocument

[20] UN Doc Committee on Economic, Social and Cultural Rights, General comment E/C.12/2000/4, Twenty – Second Session Geneva , 25 April -12 May 2000 Agenda item 3. p. 5 para 11-12. : “The prevention, treatment and control of epidemic, endemic, occupational and other diseases” (art. 12.2 (c)) requires the establishment of prevention and education programmes for behavior-related health concerns such as sexually transmitted diseases, in particular HIV/AIDS, and those adversely affecting sexual and reproductive health, and the promotion of social determinants of good health, such as environmental safety, education, economic development and gender equity. The right to treatment includes the creation of a system of urgent medical care in cases of accidents, epidemics and similar health hazards, and the provision of disaster relief and humanitarian assistance in emergency situations. The control of diseases refers to States’ individual and joint efforts to, inter alia, make available relevant technologies, using and improving epidemiological surveillance and data collection on a disaggregated basis, the implementation or enhancement of immunization programmes and other strategies of infectious disease control”. http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/710b5df710e1e1c7802568a20041f7c6/$FILE/G0040552.pdf

[21] UN Doc Committee on Economic, Social and Cultural Rights, General comment E/C.12/2000/4, Twenty – Second Session Geneva , 25 April -12 May 2000 Agenda item 3. p. 3-4 para 11-12. http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/710b5df710e1e1c7802568a20041f7c6/$FILE/G0040552.pdf

[22] Waldram B. J “ The Efficacy of Traditional Medicine : Current Theoretical and Methodological Issues”, Medical Anthropological Quarterly Vol. 14. No. 4, Blackwell publishing, p.603-604.

[23] Waldram B. J “ The Efficacy of Traditional Medicine : Current Theoretical and Methodological Issues”, Medical Anthropological Quarterly Vol. 14. No. 4, Blackwell publishing, p.604

[24] Fabricant S.D & Farnsworth R. Norman, “The Value of Plants Used in Traditional Medicine For Drug Discovery” Environmental Health Perspectives, Vol. 109. Reviews in Environmental Health, Brogan & Partners. 2001.p70:

[25] Fabricant S.D & Farnsworth R. Norman, “The Value of Plants Used in Traditional Medicine For Drug Discovery” Environmental Health Perspectives, Vol. 109. Reviews in Environmental Health, Brogan & Partners. 2001.p70: “follow up on ethno medical-traditional medicine”

[26] World health oganisation Executive Board and World health Assembly Resolution EB124.R9, 124th session, Agenda 4.5, “Traditional Medicine”, of 26th January 2009: http://apps.who.int/gb/ebwha/pdf_files/EB124/B124_R9-en.pdf

[27] World Health Organization , “Traditional Medicine” Fact sheet No. 134, of December 2008.: http://www.who.int/mediacentre/factsheets/fs134/en/

[28] World health oganisation Executive Board and World health Assembly Resolution EB124.R9, 124th session, Agenda 4.5, “Traditional Medicine”, of 26th January 2009: http://apps.who.int/gb/ebwha/pdf_files/EB124/B124_R9-en.pdf

[29] World Health Organization , “Traditional Medicine” Fact sheet No. 134, of December 2008.: http://www.who.int/mediacentre/factsheets/fs134/en/

[30] UN Doc Committee on Economic, Social and Cultural Rights, General comment E/C.12/2000/4, Twenty – Second Session Geneva , 25 April -12 May 2000 Agenda item 3. p. 3-4 para 11-12. http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/710b5df710e1e1c7802568a20041f7c6/$FILE/G0040552.pdf. Para 27 states that:

In the light of emerging international law and practice and the recent measures taken by States in relation to indigenous peoples, the Committee deems it useful to identify elements that would help to define indigenous peoples' right to health in order better to enable States with indigenous peoples to implement the provisions contained in article 12 of the Covenant. The Committee considers that indigenous peoples have the right to specific measures to improve their access to health services and care. These health services should be culturally appropriate, taking into account traditional preventive care, healing practices and medicines. States should provide resources for indigenous peoples to design, deliver and control such services so that they may enjoy the highest attainable standard of physical and mental health. The vital medicinal plants, animals and minerals necessary to the full enjoyment of health of indigenous peoples should also be protected. The Committee notes that, in indigenous communities, the health of the individual is often linked to the health of the society as a whole and has a collective dimension. In this respect, the Committee considers that development-related activities that lead to the displacement of indigenous peoples against their will from their traditional territories and environment, denying them their sources of nutrition and breaking their symbiotic relationship with their lands, has a deleterious effect on their health.

[31] UN Doc Committee on Economic, Social and Cultural Rights, General comment E/C.12/2000/4, Twenty – Second Session Geneva , 25 April -12 May 2000 Agenda item 3. p. 3-4 para 11-12. http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/710b5df710e1e1c7802568a20041f7c6/$FILE/G0040552.pdf

[32] Larkin Gerald, “Occupational Monopoly and Modern Medicine”, Tavistock Publications, Cambridge University Press, 1983.

[33] Larkin Gerald, “Occupational Monopoly and Modern Medicine”, Tavistock Publications, Cambridge University Press, 1983.

[34] Dr. Margaret Chan, Director general of World Health Organization, Address to the world health Organizational Congress on Traditional Medicine, at Beijing, Peoples republic of China. 2008.: http://www.who.int/dg/speeches/2008/20081107/en/index.html

[35]Dr. Margaret Chan, Director General of World Health Organization, Address to the world health Organizational Congress on Traditional Medicine, at Beijing, Peoples republic of China. 2008 http://www.who.int/dg/speeches/2008/20081107/en/index.html

[36] Dr. Margaret Chan, Director General of World Health Organization, Address to the world health Organizational Congress on Traditional Medicine, at Beijing, Peoples republic of China. 2008 http://www.who.int/dg/speeches/2008/20081107/en/index.html

[37] UN Doc, Committee on Economic, Social and Cultural Rights, Consideration of Reports submitted by State Parties under Article 44 of the Convention, Second periodic reports of states parties due 1997. Kenya; General comment No: CRC/C/ KEN/2. 4 July 2006.p. 15 http://www.unhchr.ch/TBS/doc.nsf/0/189bbd47582246fdc12572590029f5a5/$FILE/G0545052.pdf

[38] These findings can be found in the Population council organization website: http://www.popcouncil.org/countries/kenya.asp

[39] The Kenyan Ministries of Public Health and Medical Services, “The Kenya Health Policy Framework 1994-2010, analysis of Performance, health Situation Trends & Distribution: 1994-2010 7 Projections for 2011-2030’. www.health.go.ke P 67.

[40] UN Doc, Committee on Economic, Social and Cultural Rights, General comment No.15. 2002: The right to Water 9art.11 and 12 of the ICESCR) (E/C.12/2002/11, 20 January 2003) para 25-9. in Schutter Oliver, “International Human Rights Law: Cases, Materials, Commentary”, Cambridge University Press, Cambridge Uk, 2010.p. 464

[41] The Constitution Act of Kenya 2010.

[42] Thiagraj Soobramoney v Minister of Health: Province of KwaZulu-Natal D&CLD 5846/97August 1997, unreported

[43] Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169; (4 October 2000

[44] Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169; (4 October 2000

[45] Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169; (4 October 2000

[46] The Kenyan Ministries of Public Health and Medical Services, “ The Kenya Health Policy Framework 1994-2010, analysis of Performance, health Situation Trends & Distribution :1994-2010 7 Projections for 2011-2030’. www.health.go.ke P 8

[47] The Kenyan Ministries of Public Health and Medical Services, “ The Kenya Health Policy Framework 1994-2010, analysis of Performance, health Situation Trends & Distribution :1994-2010 7 Projections for 2011-2030’. www.health.go.ke P 8

[48] The Kenyan Ministries of Public Health and Medical Services, “The Kenya Health Policy Framework 1994-2010, analysis of Performance, health Situation Trends & Distribution :1994-2010 7 Projections for 2011-2030’. www.health.go.ke P 8

[49] Wamai

[50] The Kenyan Ministries of Public Health and Medical Services, “Health Sector Strategic Plan For Health Information Systems 2009-2014”: www.health.go.ke. P.1.

[51] Mwabu.G, “Health development in Africa’, Economic research paper series 38. The African development Bank group Abidjan, Cote d’Ivoire. 1998 in Wamai pg 135

[52] Wamai p136

[53] Wamai p 138. He refers to the split of the ministry of health into two: Ministry of public health and ministry of medical services

[54] Fabricant S.D & Farnsworth R. Norman, “The Value of Plants Used in Traditional Medicine For Drug Discovery” Environmental Health Perspectives, Vol. 109. Reviews in Environmental Health, Brogan & Partners. 2001. p69

[55] Xinhua “Herbal Medicine set for Regulation” Corporate News, Business Daily Newspaper, 28th October 2010:http://www.businessdailyafrica.com/Corporate%20News/Herbal%20medicine%20set%20for%20regulation/-/539550/1040866/-/item/0/-/eujblyz/-/index.html

[56] Xinhua “Herbal Medicine set for Regulation” Corporate News, Business Daily Newspaper, 28th October 2010:http://www.businessdailyafrica.com/Corporate%20News/Herbal%20medicine%20set%20for%20regulation/-/539550/1040866/-/item/0/-/eujblyz/-/index.html

[57] Herbal medicine set for regulation _ Medicalkenya.htm

[58] Fabricant S.D & Farnsworth R. Norman, “The Value of Plants Used in Traditional Medicine For Drug Discovery” Environmental Health Perspectives, Vol. 109. Reviews in Environmental Health, Brogan & Partners. 2001.p 71

[59] Fabricant S.D & Farnsworth R. Norman, “The Value of Plants Used in Traditional Medicine For Drug Discovery” Environmental Health Perspectives, Vol. 109. Reviews in Environmental Health, Brogan & Partners. 2001.p 71

[60] KEMRI report on “Local herb may Provide Cure for Sex Disease” found in the organization website: http://www.kemri.org/index.php/help-desk/search/diseases-a-conditions/31-stdsstis/115-local-herb-may-provide-cure-for-sex-disease

[61] Kenya Medical Research Institute is a state corporation established through the Science and Technology (Amendment) Act of 1979, as the national body responsible for carrying out health research in Kenya. KEMRI has grown from its humble beginning 27 years ago to become a regional leader in human health research. The Institute currently ranks as one of the leading centers of excellence in health research both in Africa as well as globally: http://www.kemri.org/index.php/features-mainmenu-27/rocketlauncher-mainmenu-28

[62] Article 2 (10 of the International Covenant o Economic, Social and Cultural Right of 1966.

Home Essays & Reviews Essay & Discussion “Miti Ni Dawa”: Traditional Medicine and The Realisation Of The Right To Health In Kenya