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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: 104ABSTRACTThis 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.Low 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 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.ABORTION, HEALTH AND CORRUPTIONCorruption 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 killer. 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 death of the foetus and maybe the mother. The constitution of Kenya 2010 states that every person has a right to life and that a person shall not be deprived of life intentionally except to the extent authorised by the constitution or other written law.it goes further to state that the life of a person begins at conception.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.PROCUREMENT OF DRUGS AND MEDICAL EQUIPMENTArticle 43(1) of the constitution 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 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.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”.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...”.RECOMENDATIONS.Imposing high penalty on corruption or mismanagement offenders.Enforce the regulations on procurement process.Condemnation and rejection of acts of corruption, related offences and impunity.Strengthen the Witness Protection Agency to give corruption witnesses confidence to testify against corrupt persons.Health professionals should be held accountable if there is a complaint to their professional bodies Prosecuting health officers who are corruptProvision 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 .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.REFERENCES.The constitution of Kenya 2010Black’s law dictionary,(8th edn)Oxford advanced learners dictionary.Shaun D. Pattinson; Medical law and Ethics, (3rd edn, Sweet&Maxwell.)I .Spector (ed), Fighting corruption in developing countries: strategies and analysis, (Kumarian Press, Inc)U4 Issue 2008:10African Union on Preventing and Combating Corruption.United Nations Convention against Corruption.Claire De Than, International criminal law and human Rights, (Sweet and Maxwell) ................
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