Weaving Health And Tradition: Navigating The Intersection Of Customary Law And The Right To Health In Kenya’s Pluralistic Legal System
The Mt Kenya Times 
Integrating Traditional Medicine into Health Care Systems
By Jerameel Kevins Owuor Odhiambo
Worth Noting:
- The historical context of Kenya’s legal pluralism is rooted in its colonial past and the subsequent efforts to forge a unified national identity while respecting cultural diversity.
- The application of English common law and statute law alongside African customary law was a hallmark of British colonial administration, a system that persisted after independence. Professor Yash Ghai, a prominent Kenyan constitutional law expert, observes, “The post-independence legal framework in Kenya sought to accommodate customary law within the formal legal system, recognizing its importance in maintaining social cohesion and cultural identity.”
- This accommodation is reflected in Article 2(4) of the Constitution, which acknowledges customary law as a source of law in Kenya, subject to consistency with the Constitution.
In the Kenyan society, where modernity interweaves with tradition, and where the echoes of colonial legacies reverberate through the corridors of justice, we find ourselves at a crossroads of legal pluralism. The intersection of customary law and constitutional rights presents both a challenge and an opportunity for the realization of fundamental human needs, not least of which is the right to health. This paper attempts to examine this arguably complex terrain and thus we must ask ourselves: How can we harmonize the wisdom of our ancestors with the imperatives of modern healthcare? How can we ensure that the tapestry we weave is one of inclusivity, equity, and respect for all Kenyans, regardless of their cultural background or geographic location? The answers to these questions lie not in the rejection of one system for another, but in the careful and considerate integration of both, creating a unique Kenyan approach to health and justice that honors our past while embracing our future.
The intersection of customary law and the right to health in Kenya’s pluralistic legal system presents a multifaceted challenge that requires careful consideration and nuanced approaches. Kenya’s legal landscape is characterized by a complex interplay of statutory law, common law, customary law, and Islamic law, all of which must be navigated in the pursuit of realizing the constitutional right to health. Article 43(1)(a) of the Constitution of Kenya 2010 explicitly guarantees every person “the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.” However, the implementation of this right is often complicated by the persistence of customary practices and beliefs that may sometimes conflict with modern medical approaches or constitutional principles of equality and non-discrimination. As noted by Kenyan legal scholar Patricia Kameri-Mbote, “The coexistence of multiple legal systems in Kenya creates a dynamic yet challenging environment for the realization of fundamental rights, particularly in areas where customary norms intersect with constitutional guarantees.”
The historical context of Kenya’s legal pluralism is rooted in its colonial past and the subsequent efforts to forge a unified national identity while respecting cultural diversity. The application of English common law and statute law alongside African customary law was a hallmark of British colonial administration, a system that persisted after independence. Professor Yash Ghai, a prominent Kenyan constitutional law expert, observes, “The post-independence legal framework in Kenya sought to accommodate customary law within the formal legal system, recognizing its importance in maintaining social cohesion and cultural identity.” This accommodation is reflected in Article 2(4) of the Constitution, which acknowledges customary law as a source of law in Kenya, subject to consistency with the Constitution. However, this recognition also introduces potential conflicts, particularly in the realm of health rights, where traditional practices may sometimes diverge from contemporary medical standards or human rights norms.
The right to health, as enshrined in the Kenyan Constitution and international human rights instruments, encompasses a broad spectrum of entitlements and obligations. It includes not only access to medical care but also the underlying determinants of health, such as clean water, adequate sanitation, and nutrition. One public health expert from Kenya, emphasizes, “The realization of the right to health in Kenya requires a holistic approach that addresses both biomedical and social determinants of health, many of which are deeply intertwined with cultural practices and customary norms.” This perspective underscores the need for a nuanced understanding of how customary law influences health-seeking behaviors, traditional healing practices, and community perceptions of illness and wellness. The challenge lies in reconciling these cultural dimensions with the state’s obligation to provide universal access to quality healthcare services.
Case law in Kenya has begun to grapple with the complexities of applying customary law in health-related matters. In the case of S.M. v. R.N. (2016), the High Court of Kenya addressed the issue of female genital mutilation (FGM), a practice rooted in customary traditions but criminalized under Kenyan law. The court held that while customary law is recognized under the Constitution, practices that contravene fundamental rights and freedoms cannot be justified on cultural grounds. Justice Mumbi Ngugi stated in her ruling, “The right to participate in a cultural life of choice must be balanced against other constitutional imperatives, including the right to health and bodily integrity.” This decision illustrates the judiciary’s role in navigating the delicate balance between respecting cultural practices and upholding constitutional rights, particularly in matters affecting health and well-being.
The integration of traditional medicine into Kenya’s formal healthcare system presents another area where customary practices intersect with the right to health. The World Health Organization estimates that up to 80% of the African population relies on traditional medicine for their primary healthcare needs. Recognizing this reality, Kenya has taken steps to regulate and incorporate traditional medicine into its health policy framework. Dr. Peter Mungai Ngugi, a researcher at the Kenya Medical Research Institute, argues, “The recognition and regulation of traditional medicine can enhance access to healthcare, particularly in rural areas where formal health facilities may be scarce. However, it is crucial to ensure that these practices meet safety and efficacy standards and do not contravene fundamental rights.” This approach acknowledges the potential complementarity between customary healing practices and modern medicine, while also highlighting the need for a regulatory framework that protects public health.
The principle of non-discrimination, a cornerstone of human rights law, poses particular challenges in the context of customary health practices. Certain traditional beliefs and practices may discriminate against vulnerable groups, such as women, children, or persons with disabilities, in accessing healthcare or making health-related decisions. Professor Makau Mutua, a Kenyan-American legal scholar, contends, “The application of customary law in health matters must be scrutinized through the lens of equality and non-discrimination. Practices that perpetuate inequality or marginalization cannot be justified under the guise of cultural relativism.” This perspective underscores the need for a rights-based approach to health that prioritizes the protection of vulnerable groups while respecting cultural diversity.
The role of traditional leaders and community elders in shaping health-related behaviors and mediating disputes presents both opportunities and challenges for the realization of the right to health. In many Kenyan communities, these figures wield significant influence over social norms and practices, including those related to health and well-being. Dr. Catherine Kyobutungi, Executive Director of the African Population and Health Research Center, notes, “Engaging traditional leaders as partners in health promotion and education can be an effective strategy for bridging the gap between customary practices and modern healthcare approaches.” However, she cautions that this engagement must be balanced with efforts to empower individuals to make informed health choices and to challenge harmful traditional practices.
The devolution of healthcare services to county governments under the 2010 Constitution has introduced new dynamics in the intersection of customary law and the right to health. County governments are now responsible for the delivery of primary healthcare services, including public health and sanitation. This decentralization presents opportunities for more culturally sensitive healthcare delivery that takes into account local customs and practices. However, it also raises challenges in ensuring uniform standards of care across the country. Professor Kiarie Mwaura, argues, “Devolution offers a chance to tailor health services to local needs and cultural contexts, but it must be implemented in a way that upholds national standards and constitutional guarantees of the right to health.”
The role of public interest litigation in advancing the right to health and challenging harmful customary practices has been significant in Kenya’s legal landscape. Cases brought before the courts have helped to clarify the boundaries between customary law and constitutional rights, often leading to progressive interpretations that prioritize health and well-being. In the case of C.K. (A Child) & 11 Others v. Commissioner of Police & 2 Others (2011), the High Court affirmed the state’s duty to protect children from harmful cultural practices, including early marriage, which can have detrimental effects on health. The court’s decision emphasized that customary practices must evolve in line with constitutional values and human rights standards, setting an important precedent for future cases at the intersection of health rights and cultural practices.
International human rights law provides an important framework for addressing the tensions between customary law and the right to health in Kenya. The country is a signatory to numerous international treaties that obligate the state to protect and fulfill the right to health, including the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and Peoples’ Rights. Professor Obiora Chinedu Okafor, a Nigerian-Canadian legal scholar and former UN Independent Expert on Human Rights and International Solidarity, observes, “International human rights law can serve as a valuable tool for domestic courts and policymakers in navigating the complexities of legal pluralism, offering universal standards against which customary practices can be evaluated.” This international perspective reinforces the need for a harmonized approach that respects cultural diversity while upholding fundamental human rights.
The intersection of customary law and the right to health also raises important questions about informed consent and autonomy in healthcare decision-making. In some cases, customary norms may conflict with the principle of individual autonomy that underpins modern medical ethics. Prof. Sylvia Tamale, a Ugandan feminist lawyer and scholar, argues, “The concept of individual autonomy in healthcare must be contextualized within African communal values and extended family systems. However, this should not come at the expense of protecting individuals from harmful practices or coercion in health-related decisions.” This perspective highlights the need for a nuanced approach that respects both individual rights and community values in the context of healthcare.
Education and awareness-raising play crucial roles in bridging the gap between customary practices and the constitutional right to health. Many harmful practices persist due to lack of information about their health consequences or about available alternatives. Professor Miriam Were, a Kenyan public health advocate and former chairperson of the National AIDS Control Council, emphasizes, “Community-based health education that is culturally sensitive and respectful of local knowledge systems is essential for promoting positive health behaviors and challenging harmful traditions.” Such approaches can help to create a dialogue between traditional and modern health perspectives, fostering a more integrated and effective healthcare system that respects both cultural heritage and human rights.
The way forward in reconciling customary law with the right to health in Kenya’s pluralistic legal system requires a multifaceted approach that engages all stakeholders, from community elders to policymakers, healthcare providers, and legal professionals. It calls for continuous dialogue, research, and adaptation to ensure that the legal framework evolves to meet the health needs of all Kenyans while respecting cultural diversity. As Kenya continues to navigate this complex terrain, it has the opportunity to develop innovative approaches that could serve as a model for other African countries grappling with similar challenges. The ultimate goal must be to create a health system that is both culturally relevant and rights-based, ensuring that every Kenyan can enjoy the highest attainable standard of health, regardless of their cultural background or social status.
In conclusion, the words of Wole Soyinka resonate with the challenge and promise of integrating customary law and constitutional rights in the pursuit of health for all Kenyans: “The greatest threat to freedom is the absence of criticism.” This sentiment encapsulates the need for ongoing reflection, dialogue, and, when necessary, reform of customary practices that may impede the realization of the right to health. It reminds us that cultural traditions, while valuable, must not be immune to scrutiny and evolution in light of new knowledge and changing societal needs. As Kenya continues to navigate the complex intersection of customary law and the right to health, it must remain open to critical examination of both traditional practices and modern approaches, always striving for a balance that honors its rich cultural heritage while embracing the universal right to health and well-being.
The writer is a legal scrivener and researcher
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