Luco Njagi & 21 others v Ministry of Health & 2 others [2015] eKLR It is also his claim that NHIF has the mandate, under the said section 5, to advice the National Government on a National Policy with regard to the National Hospital Insurance Fund and in particular advice the Government to formulate and implement such policy so as to accord with Articles 10, 27 and 43 of the Constitution, but that it has failed to do so, to his detriment and the detriment of other elderly and terminally ill persons in his position. 30. The petitioner submits that in accordance with Article 2 (6) of the Constitution, Kenya is bound by the treaties and international conventions to which it is a party and, at the minimum, to comply with its treaty obligations under these conventions. It is his contention that apart from stating in an affidavit that they still lack the funds to provide the dialysis cover the petitioners seek, the respondents have not shown the court a statement of their assets, their expenses and what part of those expenses could adequately cover the treatment the petitioners seek. 31. In addition to the case of Ministry of Health –vs- Treatment Action Campaign (supra) relied on by the 1st-21st petitioners, the 22nd petitioner has referred the court to the decisions of the Supreme Court of India in Bandhua Mukhti Morcha and Others –vs- Union of India and Others AIR 1984 SC 802 and Consumer Education and Research Centre –vs- Union of India (1995) 3 SCC 42 for the proposition that the right to human dignity and to life are inextricably linked to the right to health. 32. Counsel for the 22nd petitioner also referred in his submissions to the decisions in Parmanand Katara –vs- Union of India AIR 1989 SC 2039, VHAP –vs- Union of India SC 349 of 2003 and Paschim Banga Khet Mazdoor –vs- State of West Bengal AIR 1996 SC 2426, the latter of which, he submits, deals with a situation exactly like the one now before the court in which the state, while acknowledging its constitutional obligation towards providing life supporting medical facilities to the petitioners, claims not to have the resources to provide such facilities. It is the petitioner’s submission that the respondents have not discharged their responsibility under Article 20(5)(a) to show, with respect to the rights enshrined in Article 43, that it does not have adequate resources. The petitioners therefore pray that the petition be allowed as prayed. The 1st Respondent’s Case 33. The 1st respondent has filed Grounds of Opposition dated 29th May 2013 and submissions dated 25th June 2013. Its objections are that the petition is misconceived and otherwise an abuse of the court process; does not disclose any cause of action against the respondents nor any constitutional violations or breaches by the respondents; and further, that the orders sought are not tenable against the 1st respondent as no sufficient grounds have been advanced to warrant the grant of the orders. 34. The submissions of the 1st respondent through its Learned Counsel, Mr. Mohamed, is that the Constitution provides for economic and social rights, including the right to health, under Article 43. Under Article 21, the said right is subject to progressive realization. The respondent therefore relies on the decision in the case of Court of Republic of South Africa & Others vs Irene Grootboom and Others (CCTII/OO)[2001]ZACC 19;2001 (1) SA 46;2000(11)BCLR 1169(4 October 2000) to support its contention that the rights under Article 43 are to be progressively realized. 35. It is its case that over the years, the government has taken policy and legislative steps to achieve the realization of economic and social rights, within its resources. It cites as illustrations, among other things, the fact that the government has built hospitals and health centres to provide health http://www.kenyalaw.org - Page 7/18