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THE 9TH ALL-KENYAN MOOT COURT COMPETITION (AKMCC)
3RD – 5TH JUNE 2021
MEMORIAL FOR THE APPLICANT
THEME: Combating Corruption for the Highest Attainable Standard of Health
Word Count:3999
Team B: 803
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THE 9TH^ ALL-KENYAN MOOT COURT COMPETITION (AKMCC)
3 RD^ – 5 TH^ JUNE 2021
MEMORIAL FOR THE APPLICANT
THEME: Combating Corruption for the Highest Attainable Standard of Health
Word Count:
Team B: 803
TABLE OF CONTENTS
WHETHER THE RIGHTS TO THE HIGHEST ATTAINABLE STANDARDS OF HEALTH WHETHER THE SUSPENSION OF HEALTH CARE WORKERS WAS A VIOLATION OF
- LIST OF ABREVIATIONS
- STATEMENT OF JURISDICTION AND ADMISSIBILITY
- Jurisdiction
- Admissibility
- STATEMENT OF RELEVANT FACTS
- ISSUES
- SUMMARY OF ARGUMENTS
- SUBSTANTIVE ARGUMENTS
- ISSUE
- DENIED, INFRINGED AND/OR VIOLATED................................................................................. AND EMERGENCY MEDICAL TREATMENT OF THE CITIZENS OF TUNASTRAGO WERE
- a) Right to the highest attainable standard of health
- b) Right to Emergency Medical Treatment
- ISSUE
- ADMINISTRATIVE ACTION THEIR RIGHT TO WORK, INDUSTRIAL ACTION AND THEIR RIGHT TO FAIR
- a) Right to work and industrial action
- b) Right to fair administrative action
- ISSUE
LIST OF ABREVIATIONS
WHO World Health Organization
THWU Tunastrago Health Workers Union
CS Cabinet Secretary
CoT Constitution of Tunastrago
CBA Collective Bargaining Agreement
ICESCR International Covenant on Economic, Social and Cultural Rights
ICCPR International Covenant on Civil and Political Rights
CESCR Committee on Economic, Social and Cultural Rights
AG Attorney General
HC High Court
AUPCC African Union Convention on Preventing and Combating Corruption
LIST OF SOURCES
I. National laws
- The Constitution of Tunastrago 2010
- Health Act No.21 of 2017
- Labour Relations Act
- Employment Act
- Public Procurement and Asset Disposal Act
- Public Finance Management Act
- Anti-Corruption and Economic Crimes Act II. International laws
- International Covenant on Civil and Political Rights
- International Covenant on Economic, Social and Cultural Rights
- African Convention on Preventing and Combating Corruption
- United Nations Convention Against Corruption
- International Health Regulations
- World Health Organization Constitution
CASE LAW
I. National Case Law
- P.A.O & 2 others v Attorney General
- J O O v Attorney General & 6 others
- Moi Teaching and Referral Hospital v Kenya National Union of Nurses
- Law Society of Kenya & 2 others v Attorney General & 2 others
- Rose Owira & 32 others v Attorney General and another
- Mary Chemweno Kiptui v Kenya Pipeline Company Limited II. International Case Law
- Paschim Banga Khet Majoor Samity v State of West Bangal
The matters before this court for determination are therefore admissible.
STATEMENT OF RELEVANT FACTS
- Tunastrago did not implement any restrictions relating to C-VID-19 immediately after its declaration as a public health emergency of international concern. Even after the WHO declared that the C-VID-19 constituted a pandemic, the respondents did not put any stringent measures to restrict movement of foreigners into the country. Before the announcement of the first C-VID-19 cases in Tunastrago, there was word that there were a number of patients exhibiting C- VID-19 symptoms. The Tunastrago Health Workers Union (THWU) stated that the actual C-VID-19 cases within the country were double what the government was announcing.
- The THWU mentioned the fact that health workers were not being provided with personal protective equipment. The respondents did not give the health workers audience therefore they proceeded to strike leading to a complete breakdown of the public healthcare system. A number of people succumbed to illnesses due to lack of medication. The government suspended the striking health workers and swore not to increase the salaries of the few who remained in service. The death toll in Tunastrago was on the kept on rising as a result of the grossly understaffed public hospitals.
- The respondents claimed that they had made procurement for the necessary protective equipment for health workers. A document from the office of the Auditor General indicated that tenders for the procurement of the mentioned equipment had been greatly inflated and awarded to companies owned by CSs and personnel within the MoH. Money allocated to health care workers was alleged to have been looted and as a result, the respondent disregarded a CBA to increase the allowances of doctors and nurses working in hardship conditions. The respondents were also not given foreign aid because of unaccountability of previously disbursed funds.
- After a meeting between the government and the THWU, Miss Nina, Mr. Masong and two other women in their company left in a black jeep. A few days later the four people were reported to be missing. The bodies of the women in the company of Nina and Masong were found in a bush. The whereabouts of Nina and Masong have not yet been established.
ISSUES
- Whether the rights to the highest attainable standard of health and emergency medical treatment of the citizens of Tunastrago were denied, infringed and/or violated.
- Whether the suspension of health care workers was a violation of their right to work, industrial action and their right to fair administrative action.
SUMMARY OF ARGUMENTS
- The rights to the highest attainable standard of health and emergency medical treatment of the citizens of Tunastrago were denied, infringed and violated. The state has an obligation to observe, respect, protect, promote and fulfill these rights.
- The suspension of health care workers was a violation of their right to work and industrial action and their right to fair administrative action. Every person has the right to fair labour practices and every worker is guaranteed the right to participate in a lawful strike. The suspension in this regard was therefore a violation of their right to work and industrial action. The government also failed to issue a notice to the health workers before suspending them thus violating their right to fair administrative action guaranteed in the constitution and the Employment Act.
- The enforced disappearance and extrajudicial killings of the four people was a breach of the Constitution and relevant international legal provisions. The state has an obligation to protect the right to life and the right to freedom and security of the person. Failure of the state in its obligation to protect this right was a breach of the constitution and other relevant international instruments.
- The Tunastrago government has not fulfilled its constitutional and international obligations with regard to the fight against corruption. The principles of governance in accordance with the Constitution include transparency and accountability. The ACPCC also emphasizes on the principles of transparency and accountability. The respondent cannot account for previously disbursed funds from international organizations. There is also looting within the ministry of health and disregard of procurement procedures that the state has not been able to curb.
SUBSTANTIVE ARGUMENTS
ISSUE 1
WHETHER THE RIGHTS TO THE HIGHEST ATTAINABLE STANDARDS OF
HEALTH AND EMERGENCY MEDICAL TREATMENT OF THE CITIZENS OF
TUNASTRAGO WERE DENIED, INFRINGED AND/OR VIOLATED.
The Petitioner Submits that the rights to the highest attainable standard of health and emergency medical treatment were denied, infringed and violated.
a) Right to the highest attainable standard of health
Every person is entitled to the right to the highest attainable standard of health as provided for in the Constitution of Tunastrago.^4 In relation to this provision, Article 21 of the Constitution^5 read together with the Health Act places an obligation on the state to observe, respect, protect and promote this right.^6 The constitution also guarantees every citizen the right to access to information held by another person and required for the protection of another right.^7
The WHO Constitution provides that the enjoyment of the right to health is fundamental for every person. The ICESCR requires its state parties to recognize this right and in respect to that, to create conditions which would assure to all medical service and medical attention in the event of sickness.^8 The CESCR general comment number 14 spells out clear instances on how and when violation of this right is deemed to have occurred.^9 The General Comment provides that the adoption of any
(^4) Constitution of Tunastrago 2010, Art 43(1)(a). (^5) Ibid, Art 21. (^6) The Health Act No. 21 of 2017, s 4. (^7) Constitution of Tunastrago, Art 35(1)(b). (^8) ICESCR, Art 12. (^9) CESCR General Comment no. 14, para.
b) Right to Emergency Medical Treatment
The Constitution of Tunastrago provides that a person shall not be denied emergency medical treatment.^14 This right is further guaranteed in the Health Act^15 which recognizes that emergency medical treatment includes stabilizing the health status of an individual.^16 In addition to the right to emergency medical treatment, the constitution of Tunastrago also guarantees the right to life^17 which may be fundamentally violated in instances where the right to emergency medical treatment is denied, infringed or violated. The HC in PAO & 2 others v Attorney General^18 held that the right to emergency medical treatment encompassed access to essential drugs. The Supreme Court of India in Paschim Banga Khet Majoor Samity v State of West Bengal^19 held that the state had violated the applicant’s right to health due to the failure of public hospitals to provide emergency medical assistance. Failure of the state to listen to the health workers complaints resulted in their strike. This led to a complete breakdown of the healthcare system and a number of government hospitals were closed down.^20 The people of Tunastrago could therefore not access emergency medical treatment. Suspension of health care workers at a time when there was a crisis in the country, the C-VID-19 pandemic, also worsened the situation at hand. It prolonged the closure of the government hospitals that were not operational at the time and as a result, the death toll of C-VID-19 cases kept on rising.
(^14) Constitution of Tunastrago 2010, Art 43(2). (^15) The Health Act No. 21 of 2017, s 7(1). (^16) Ibid, s 2(b). (^17) Constitution of Tunastrago 2010, Art 26. (^18) (2012) eKLR. (^19) (1996) 4 SCC 37. (^20) Facts, para. 22.
The petitioner therefore submits that the respondents denied, infringed and violated the right to emergency medical treatment of the people of Tunastrago.
ISSUE 2
WHETHER THE SUSPENSION OF HEALTH CARE WORKERS WAS A VIOLATION
OF THEIR RIGHT TO WORK, INDUSTRIAL ACTION AND THEIR RIGHT TO FAIR
ADMINISTRATIVE ACTION
The Petitioners submit that the suspension of health care workers was a violation of their right to work, industrial action and their right to fair administrative action.
a) Right to work and industrial action
Every person has the right to fair labour practices^21 and every worker has the right to go on strike.^22 The Labour Relations Act provides that a person is not considered to have breached their employment contract by taking part in a protected strike.^23 Employees who take part in lawful strikes may therefore not be dismissed or disciplined by their employers.^24 The ICESCR also guarantees workers the right to strike.^25
In the case of Moi Teaching and Referral Hospital v Kenya National Union of Nurses^26 the court held that restricting the right to strike where attempts to resolve the issues at hand by the weaker party have hit a brick wall would mean that there would be no legal strike in the country and this would fundamentally violate the right to strike available to workers.
(^21) The Constitution of Tunastrago, Art 41(1). (^22) Ibid, Art 41(2)(d). (^23) Labour Relations Act No. 14 of 2007, s 79(2)(a). (^24) Ibid, s 79(3). (^25) ICESR, Art 8. (^26) (2016) eKLR.
The Government of Tunastrago suspended the health workers without having given them a chance to represent their grievances contrary to the provisions of the Fair Administrative Actions Act. There was also no issuance of a notice before the suspension.
The petitioner thus submits that the suspension of health care workers was a violation of their right to fair administrative action.
ISSUE 3
WHETHER THE ENFORCED DISAPPEARANCE AND EXTRA JUDICIAL KILLINGS
OF THE FOUR PEOPLE IS A BREACH OF THE CONSTITUTION AND ALL
RELEVANT INTERNATIONAL INSTRUMENTS TUNASTRAGO IS PARTY TO.
The enforced disappearance and extra judicial killings of the four people is a breach of the constitution and all relevant international instruments Tunastrago is party to.
a) Enforced disappearance
Every person is guaranteed the right to freedom and security of the person.^34 The
constitution also guarantees all persons the right to human dignity. Enforced
disappearance is the arrest, detention, abduction or any other form of deprivation of
liberty by agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of
(^34) Constitution of Tunastrago, Art 29.
the disappeared person, which place such a person outside the protection of the law.’^35
State parties to the United Nations Convention on the Protection of All Persons Against
Enforced Disappearance have an obligation to conduct investigations in such
instances.^36 In the case of Law Society of Kenya & 2 others v Attorney General & 2
others^37 the court held that although Kenya had not ratified the convention, global
concern over enforced disappearance necessitated deliberate efforts towards a solution.
Any act of enforced disappearance is an offence to human dignity.^38 The state has an
obligation to protect the right to freedom and security of the person as well as the right
to human dignity.^39
Miss Nina, Mr. Masong and the other two women in question disappeared after the
meeting held by the government with the Tunastrago Health Workers Union Executive
Committee. Apart from the inquiry on whether these people were in the mentioned
meeting and the DNA tests carried out to identify the two women, there are no further
investigations into the enforced disappearance alluded to.
The petitioner therefore submits that the enforced disappearance alluded to was a
breach of the constitution and all the relevant international instruments Tunastrago is
party to.
(^35) United Nations Convention on protection of All Persons Against Enforced Disappearance, Art 2. (^36) Ibid, Art 3. (^3738) (2018) eKLR. 39 The Declaration on the Protection of all Persons from Enforced Disappearance, Art 1. Constitution of Tunastrago, Art 21(1).
Good governance, integrity, transparency and accountability are among the national values and principles of governance of Tunastrago.^44 In respect to these principles, the Constitution of Tunastrago provides that state officers shall avoid any conflicts between personal interests and public affairs.^45 The constitution also requires that in the procurement of public goods or services, the state shall make use of a system that is fair, equitable, transparent, competitive and cost-effective.^46 The Public Procurement and Asset Disposal Act sets out limitations on contracts with state and public officers. A state organ shall not enter into a contract for a procurement with a state officer of that state organ.^47 A Cabinet Secretary who knowingly holds a private interest in a contract, agreement or investment emanating from his ministry is guilty of an offence.^48 In the same regard, a public officer who fails to follow required procedures and guidelines of procurement of property, management of funds or incurring of expenditures is guilty of an offence.^49 Public officers involved in transactions in which standard goods are procured at unreasonably inflated prices are guilty of an offence.^50 The public debt management office is required to monitor and evaluate all borrowing and debt-related transactions to ensure that they are within the guidelines and risk parameters of the debt management strategy.^51 State parties to the African Convention on Preventing and Combating Corruption are required to be transparent and accountable in the management of public affairs.^52 The
(^44) Constitution of Tunastrago 2010, Art 10(2). (^45) Ibid, Art 75(1). (^46) Ibid, Art 227. (^47) Public Procurement and Asset Disposal Act 2015, s59(1)(a). (^48) ACECA No.3 of 2003, s42(3). (^49) Ibid, s45(2)(b). (^50) Public Procurement and Asset Disposal Act 2015, s54(4). (^51) Public Finance Management Act, s63(f). (^52) African Convention on Preventing and Combating Corruption, Art 3.
convention also provides that as regards tendering procedures in the public service, state parties shall abide by the principles of transparency, equity and efficiency.^53 The government of Tunastrago announced that it had made procurement for personal protective equipment for health workers but the procurement and tendering process had not been made public.^54 A document from the office of the Auditor General indicated that tenders for the procurement of the mentioned equipment had been awarded to Cabinet Secretaries and Personnel within the Ministry of Health.^55 It was also noted from the same document that contrary to the provisions of the Public Procurement and Asset Disposal Act, the procurement tenders had been greatly inflated. The government of Tunastrago was not able to get funds from the IMF and the Wasafi Union Economic Bloc owing to the fact that the government could not account for funds that had previously been disbursed.^56 Inability of the government to account for the previously disbursed funds was a failure of the state in its obligation to manage debt related transactions. The petitioner thus submits that the respondent failed to fulfil its constitutional and international obligations with respect to the fight against corruption.
PRAYERS The Petitioner thus prays that this honourable court:
- Finds that the right to the highest attainable standard of health and the right to emergency medical treatment were violated;
- Finds that the suspension of heath care workers was a violation of their right to work, industrial action and fair administrative action;
(^53) Ibid, Art 7(4). (^54) Facts, para. 19. (^55) Ibid, para. 25. (^56) Facts, para. 31.