Using the Capabilities Approach in the Strategic Interpretation of the Right to Health in Kenya: A Case Study of the Psychosocial Working Conditions of Healthcare Workers in the Public Sector

This thesis considers the interdependence of the right to health and the right to just and favourable working conditions of healthcare workers in public hospitals in Kenya through the lens of the psychosocial factors affecting their health and wellbeing in the workplace. Drawing on the capabilities approach in chapter two, it argues that progressive realisation of the right to health requires securing safe and healthy working conditions for healthcare workers.

An analysis in chapter three is conducted of the factors adversely affecting the psychosocial health and wellbeing of public sector healthcare workers. the normative content of the rights to health and just and favourable conditions are considered and how their violations affect the psychosocial health of healthcare workers. The shortcomings of the international and regional approaches to protection of the psychosocial health and wellbeing of healthcare workers are demonstrated in chapter four. A case is made for protection within the International Covenant of Economic, Social and Cultural Rights Framework which can be enforced in domestic courts.

Chapter five then proposes the structural interdict as a strategic and effective remedy to be used by the courts for the protection of the psychosocial health and wellbeing of healthcare workers in public hospitals in Kenya. Its dialogic nature appeals to remedying violations attributable to systemic violations. It also promotes a distributive, rather than a corrective approach to justice for healthcare workers as victims of the violations.

This thesis shows how the outcome of a labour law dispute between the employer and the employee can influence the progressive realization of the right to health through the resultant remedy‘s implications on health policy, regulation and resource allocation decisions in the public health sector.