Tax and spend: rights holders and duty bearers

The Constitution of Kenya, under the Bill of Rights, gives citizens the right to the highest attainable standards of health and Universal health coverage (UHC) has been adopted as Target 3.8 of the Sustainable Development Goals (SDGs), with a clear goal of ensuring that individuals and communities receive the health services they need without suffering financial hardship. - Colonel Mustapha and the Case for Universal Healthcare by Mwende Ngao

First things first, the Constitution does not give anyone anything. It is important for any discourse on rights holders and duty bearers to understand that we gave ourselves a constitution that recognised the rights we inherently have (including, yes, economic and social rights) and the fundamental freedoms that must be protected, first by the state, and then by everyone else.

Economic and social rights come with inherent challenges in that they rely on other actions that are beyond the control of the rights holders and duty bearers. Economic and social rights depend on, in the first instance, taxes and, in the second instance, service charges imposed by duty bearers (the State) on rights holders (citizens and other users). There is a way of predicting how much in tax revenue the State shall collect and on that basis, how much of that tax revenue may be spent on economic and social rights.

Kenya is a study in wrongful and wasteful expenditure of tax revenues, and this is starkly apparent in the way taxes are spent in the provision of health care services by the State. Kenyans, in their wisdom, devolved the provision of health care services to county governments with the national government being left in charge of health policy and national referral hospitals. It was soon swiftly realised that the constitutional devolution of health care services needed further changes including on how health care workers are trained, deployed and paid. Further, the way in which health insurance is administered left many desperate Kenyans out in the cold and none more so than expecting mothers and patients with severe illnesses like cancer or in need of long-term medical support such as those with HIV/AIDS.

If we can learn anything from the plight of famous Kenyans who have fallen on hard times it is that constitutional rights and fundamental freedoms are hard to safeguard and protect if the foundations on which some of those rights depend are hollowed out. A prosperous nation is able to raise the necessary taxes, and pay for essential public services, without having to ask citizens to supplement public financing of essential services from their own pockets.

Kenya can barely raise the tax revenue needed for its ambitious "development" projects and pay salaries at the same time and the result is that essential services only get the bare minimum of public investment and support. And while Kenyans continue to wave the Bill of Rights in the faces of public officials, there is little Kenyans can do to ensure that those public officials do their duty and provide the "highest attainable standard of health acre" to Kenyans. We may have economic and social rights. But whether we ever fully enjoy those rights is something else entirely.