THE 2ND ALL KENYAN MOOT COURT COMPETITION
14TH TO 15TH FEB 2014
THEME: SAFEGUARDING HUMAN RIGHTS THROUGH COMBATING
CORRUPTION
RESEARCH PAPER ON THE EFFECTS OF CORRUPTION ON HUMAN HEALTH
TOPIC: GRAND CORRUPTION AS A CRIME AGAINST HUMANITY
EFFECTS OF CORRUPTION ON HUMAN HEALTH
BY
WINNIE BEATRICE ANURO
TEAM CODE: 104
ABSTRACT
This research paper widely covers the area of corruption in the health sector. It
examines current patterns of corruption in the health sector, causes and also offers
strategies for addressing corruption in the future. It also discusses how corruption
affects human rights and how to safeguard them. Corruption is a cancer that eats
away at a nation’s ability to progress in providing adequate health care for citizens.
It manifests in the health sector where it has resulted in deaths and poor service
delivery of essential services. It emerges from the lowest grassroot levels such as
dispensaries and gradually creeping into national healthcare providers resulting in a
failed system.
Of the many lenses that corruption can be viewed from, healthcare is a conspicuous
one due to the fact it touches on every single person from birth to old age. It should
therefore be a source of great concern on stakeholders to remedy the vice.
In addition, it discuses on grand corruption as a crime against humanity and how it
affects abortion, procurement of drugs and equipment and distribution of drugs.
At times public funds lost is enough to take care of perennial problem such as
famine thus making it a crime both economically and from the lens of human rights.
INTRODUCTION.
For one to fight corruption, he or she has to understand what corruption is.
Corruption is defined as the misuse of entrusted power for private gain. In the
health sector, it can encompass bribery of health professionals, regulations and
public officials, unethical research, diversion/theft of medicines and medical supplies,
fraudulent
overbilling
of
health
services,
absenteeism,
informal
payments,
embezzlement and corruption in health procurement. In a nutshell, corruption is
seen as a dishonest, illegal and improper use of public power and authority contrary
to the rights of the citizens. Human rights on the other hand are fundamental and
inalienable rights which are essential for life as a human being.
Public officials will engage in corrupt practices for mainly three reasons: first,
officials must have the opportunity to engage in corrupt practices due to some or all
of the following; monopoly of services, discretion to make decisions, poor
accountability, weak civil society and poor transparency. Second,individualbeliefs,
social norms and eroding public service values may create an environment in which
corrupt practices appear justified and third, public officials may feel pressured to
engage in corrupt practices due to low salaries, personal financial debt and
similar.1Low salaries to medical personnel provoke them to engage in corrupt
practices like taking of bribes.
Article 7(1) (k) of the Rome statute of The International Criminal Court
defines crimes against humanity to mean,”.... other inhumane acts of similar
character intentionally causing great suffering, or serious injury to body or to mental
1Vian((2008)
or physical health.” In Nuremberg charter of 1945, the definition of crimes
against humanity was set out in article 6 as being murder, extermination
enslavement, deportation and other inhumane acts committed against any civilian
population before or during the war, or persecutions on political, social or religious
grounds in execution or in connection with any crime within the jurisdiction of the
tribunal, whether or not in violation of the domestic law of the country where
perpetrated.2
1. ABORTION, HEALTH AND CORRUPTION
Corruption in the health sector is a concern in many countries but it is especially a
critical problem in developing and transitional economies where public resources are
already scarce. Take Kenya for example, most doctors in hospitals carry out illegal
unsafe abortion for girls. These doctors are paid in form of bribes by these victims to
carry out the exercise. Abortion is a source of considerable controversy but lacks the
nasty bite of crusading killer3. This conduct is not only a breach of law but a violation
of human right to life. Some of these doctors are not well equipped with professional
skill to carry out abortion thus some ladies end up dying in the process. These in
turn undermines the right to life. It also leads to crime against humanity as it causes
2
3
Claire De Than and Edwin Shorts, International Criminal law and Human Rights. 88
Shaun D. Pattinson, medical law and ethics. 242
death of the foetus and maybe the mother. The constitution of Kenya 2010
states that every person has a right to life4 and that a person shall not be
deprived of life intentionally except to the extent authorised by the constitution or
other written law5.it goes further to state that the life of a person begins at
conception6.and that abortion is not permitted unless, in the opinion of a trained
health professional, there is need for emergency treatment, or the life or health of
the mother is in danger, or if permitted by any other written law.7
2. PROCUREMENT OF DRUGS AND MEDICAL EQUIPMENT
Article 43(1) of the constitution8 states that every person has the right to the
highest attainable standards of health which includes the right to health care
services. Good health is a fundamental precondition of much human activity.
Common corrupt practices in the procurement process include in collusion among
bidders resulting in higher prices for purchased medicine, kickbacks from suppliers
and contractors to reduce competition and influence the selection process and bribes
to public officials monitoring the winning contractors’ performance. For example
procurement of catheters, the procurement department procures low quality
catheters while the budget was made for the good quality ones with high prices.
Supply of this low quality is made and the difference is pocketed. Corrupt
procurement officers can also purchase sub-standard drugs in place of high quality
4
Art 26(1)
Art 26(3)
6 Art 26(2)
7 Art 26(4)
8Constitution of Kenya 2010.
5
medicines and pocket the difference for their own selfish gains. This has imposed a
negative effect on the accessibility and quality of patient care hence undermining the
right to highest attainable health care services. Inaccessibility and highly priced
drugs causes mental torture and disorder as one will be stressed when she/he goes
to the hospital and finds drugs are so costly that he cannot afford or even finds out
that the hospital has run out of the specific prescription. This amount to crime
against humanity as the procurement personnel intentionally causes serious
suffering to this person’s mental health which eventually leads to poor physical
health.
3. DISTRIBUTION OF DRUGS
Due to the underfinanced and badly managed systems, poor record keeping and
ineffective monitoring and accounting mechanisms, large quantities of drugs and
medical supplies are stolen from central stores and individual facilities and diverted
for resale for personal gain in private practice or on the black market. Most drugs
that are to be distributed free of charge to patients are sometimes sold by medics.
They pocket this money and use them for their own private purposes. Some nurses
even steal medical equipment and drugs from the hospitals to their own homes. For
example, an anti-rabies drug is rare in government hospitals but nurses in these
facilities have ways of ‘organizing’ to get the medicine for patients willing to pay.
This causes many to miss medicine and treatment because they go to seek medical
attention to hospitals and are told that the hospital runs out of that particular
medicine that the patient is seeking. This forces the patients to buy these drugs at a
higher cost from the pharmacies. At times, these patients are so poor that they
cannot afford the high cost of treatment. This encourages the patients to seek
treatment from quack herbalists.
“While public hospitals are admittedly poor equipped and lack of medicine most of
the time, private clinics are way too expensive for the majority of Kenyans. The
public facilities always lack one thing or the other. Besides shortage of medicine,
most public hospitals lack testing kits, treatment equipment and essential medicine.
This is the case in Kenyatta National Hospital right to the village dispensaries.
Reports that unscrupulous individuals steal medicine to sell to the desperate patients
are disheartening”9.
All these amount to crime against humanity, which intentionally causes great
suffering to patients, and in a Commentary, it is provided that “...the perpetrator
was aware of the factual circumstances that established the character of the
act...”10.
9
. Titus N. Pala, ‘heading’ Daily Nation, Friday 31st January 2014 (Nairobi,
Kenya).14
10
Commentary, the Rome statute of the International Criminal Court, (oxford) 158
RECOMENDATIONS.
1) Imposing high penalty on corruption or mismanagement offenders.
2) Enforce the regulations on procurement process.
3) Condemnation and rejection of acts of corruption, related offences and
impunity.
4) Strengthen the Witness Protection Agency to give corruption witnesses
confidence to testify against corrupt persons.
5) Health professionals should be held accountable if there is a complaint to
their professional bodies
6) Prosecuting health officers who are corrupt
7) Provision of incentives to reduce neglect and corruption at once rather
than trying to excise corruption surgically while consciously avoiding
related forms of misgovernance.
CONCLUSION
“The government of Kenya seems contented with the level of healthcare it provides
yet there is nothing to smile about as people seek the services of quack and bogus
herbalists, progressive governments always give health care a priority
11.Combating
corruption in the health sector requires changes in institutions’ attitudes and
behaviour. Government providers, citizens and service users each have a role to play
in promoting good governance for better health.
By making grand corruption a crime against humanity and putting place structures to
prosecute it, it will trickle down to reducing more mundane and pedestrian forms of
corruption in countries.
11
Ibid
REFERENCES.
1. The constitution of Kenya 2010
2. Black’s law dictionary,(8th edn)
3. Oxford advanced learners dictionary.
4. Shaun D. Pattinson; Medical law and Ethics, (3rd edn, Sweet&Maxwell.)
5. I .Spector (ed), Fighting corruption in developing countries: strategies and
analysis, (Kumarian Press, Inc)
6. U4 Issue 2008:10
7. African Union on Preventing and Combating Corruption.
8. United Nations Convention against Corruption.
9. Claire De Than, International criminal law and human Rights, (Sweet and
Maxwell)