On 19th June 2023, the court heard final arguments in KELIN v CS Ministry of Health & Commission on Administrative Justice Petition E063 of 2021, a case filed by KELIN against the Ministry of Health asking the court to direct it account for the loss of funds received from the Global Alliance for Vaccines Immunization (GAVI) intended to support the immunization of children under the Kenya Expanded Programme of Immunisation (KEPI).
This case arose after KELIN and other civil society partners requested information on the misappropriation of the funds, but these requests were not responded to in accordance with the law under Article 35 of the Constitution and the Access to Information Act, 2016.[1] KELIN seeks various orders geared towards fostering accountability in the utilisation of public funds within the Ministry of Health. During the hearing on 19th June 2023, KELIN argued that the failure of the Ministry of Health to account for the use of funds intended to aid in health service provision is contrary to the Constitution. In its submissions, KELIN points out that the violation of the right to information in relation to how funds are utilised within the Ministry of Health also violates the state obligation in the provision of health services under Article 43(1)(a) of the Constitution of Kenya, 2010.
The Petitioner is supported by the Commission on Administrative Justice, an Interested Party, who argued that the Ministry of Health has a duty of proactive disclosure and that withholding the information requested by the petitioner and other stakeholders violated that duty. The Commission on Administrative Justice asked the court to grant the petition as requested. The Attorney General opposed the petition and sought the court to reject it on the grounds that the petitioners lacked standing to hold the Ministry of Health accountable and that only the donors themselves had the authority to ask for information. Additionally, it claimed that there were restrictions on the public’s ability to acquire information and that the court ought to dismiss the petition. The Court is now expected to consider the rival arguments of the parties and is set to make its determination on 28th July 2023.
The outcome of this petition will be a crucial first step towards holding the government, through the Ministry of Health, accountable for the use of funds intended to provide essential health services to the public. KELIN has previously |highlighted|[2] that corruption in the health sector has become endemic thus hampering the realization of the right to the best attainable standard of health. The petitioner is disappointed that the Attorney General and the Ministry of Health have disregarded their constitutional obligation to abide by court orders.
To contribute to the discussions on this forum, follow KELIN on our social media platforms: Twitter: @KELINkenya using the hashtag: #RightToInfoKe #justice2health
Facebook: http://www.facebook.com/kelinkenya
For more information, contact:
Nyokabi Njogu
Advocate for the Petitioner
Kuwinda Lane, off Lang’ata Road, Karen C
P.O. Box 112 – 00202 KNH Nairobi
Tel: +254 790 111 578
[1] See https://www.gavi.org/sites/default/files/audit/pa/Audit%20report%20Kenya%20-%20May%202016.pdf.
[2] chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.kelinkenya.org/wp-content/uploads/2020/09/Open-Letter-on-Corruption-in-Health-Sector_Delivered-copy_21092020.pdf
