Luco Njagi & 21 others v Ministry of Health & 2 others [2015] eKLR Determination 62. The Constitution of Kenya has guaranteed to everyone, among other social economic rights, the right to health. Article 43 provides that: 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; 2. A person shall not be denied emergency medical treatment. 63. This provision reflects the right guaranteed in international instruments to which Kenya is a party, chief among them Article 12 of the International Covenant on Economic, Social and Cultural Rights, which provides as follows: 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)…; (b)…; (c)…; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. 64. At Paragraph 1 of General Comment No. 14, the Committee on Economic and Social Rights states as follows: “Health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity”. 65. It cannot be disputed that the right to health is intrinsically connected with the right to life, as the petitioners submit, and violation of the right to health would therefore impact negatively on the right to life. It is recognized, however, that the right to health can only be achieved progressively, and that its realization is subject to the availability of resources. Article 21(2) of the Constitution provides that: “(2) The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under Article 43.” 66. The Constitution further provides the manner in which the court should approach the question of the state’s obligation in meeting its obligations under Article 43. It provides at Article 20 (5) as follows: http://www.kenyalaw.org - Page 12/18