This PhD study investigates, through the lens of a social rights-based approach, whether and how the design and implementation of the Tanzanian legal and regulatory framework ensures access to primary health care in light of regional and international normative standards. The country-specific study starts from the axiom that the existing legal and regulatory framework on health care provisioning in Tanzania does not ensure access to primary health care and thus needs to be reconsidered. This necessity emanates from the fact that Tanzania has legally binding national, regional and international obligations to guarantee people’s health care protection, especially essential and basic health care, i.e., primary health care. Immediately after (political) independence in 1961, the Tanzanian Government adopted the approach of the 1978 Alma-Ata Declaration on Primary Health Care and declared primary health care as the lifeblood of the whole Tanzanian healthcare system, as well as an important entry point into the system.
However, despite this legally binding obligation, Tanzania has yet to legislate a comprehensive legal and regulatory framework on access to primary health care in terms of availability, affordability, appropriateness, acceptability, awareness, accommodation and redress. The existing framework on these dimensions of access to primary health care is highly fragmented and coupled with fundamental legal shortcomings: above all, it falls considerably short of complying with regional and international normative standards. This impedes access to primary health care in rural and urban areas, and equally pushes basic and essential health care far beyond the reach of wananchi (common people within the territory). One of the inherent legal shortcomings and uncertainties is the manner in which the Tanzanian constitutional legal order is designed. The Constitution of 1977 contains ambiguous provisions on social health protection and does not include the right to have access to health care benefits under the Bill of Rights. Article 9(i) and Article 11(1) vaguely oblige the Government and its agencies to direct their national policies on the development of the people, the eradication of diseases as well as on adopting appropriate provisions for the realization of social welfare in the event of old age, sickness or disability. In addition, these constitutional provisions are enshrined under Part II of the Constitution of Tanzania, which provides for “Fundamental Objectives and Directive Principles of State Policy” and by virtue of Article 7(2), Part II in its entirety is not justiciable before any court of law. As a result, this constitutional legal conundrum has created legal uncertainty with regard to the protection and enforceability of health care rights in Tanzania.
Albeit the Government plays a major role in health care in terms of regulation, funding and services provision through its own state-controlled agencies, only about 35% of the Tanzanian population are included in existing health insurance systems, with the majority particularly in rural areas not being covered. Tanzania’s legal problem is further aggravated by, to take just one dimension of access, i.e., availability, the lack of a robust regulatory framework on health commodities procurement, distribution and pricing, which has resulted in regular lack and shortage of essential health commodities in (public) primary health care facilities, notably: dispensaries, health centres and district hospitals. Equally worrying are national findings which predict that in the coming decade “[t]here will be more people with chronic diseases, more people with multi-morbidity, more people with non-communicable diseases. More older people with disabilities will need institutional care; more people will need palliative care. This requires new services, new skills of health workers, new approaches in medical care […]” (Ministry of Health, 2021) Against this background, the analysis will place particular emphasis on the question of how to reach the goal of universal health coverage by 2030, as overtly proclaimed under the Tanzania Health Sector Strategic Plan V (2021–2026).
In line with the overarching research question mentioned at the beginning, the objective of this study is two-fold: firstly, to examine the structure and composition of the Tanzanian healthcare system with a view to assessing its current state and the extent to which it promotes access to primary health care in heterogeneous rural and urban areas. And secondly, to offer a critical analysis of the existing legal and regulatory framework with regard to its ability to ensure access to primary health care while taking into consideration relevant regional and international normative frameworks. Concretely, the objectives of this study will be achieved, firstly, by establishing and discussing the conceptual, contextual and normative foundations of access to primary health care (first part of the study) and secondly, using this framework of analysis as a legal yardstick to critically examine and evaluate Tanzania’s legal and regulatory regime (second part of the study). This being legal desk-top research, it employs a social rights-based approach and relies on a thorough textual analysis of relevant primary and secondary sources of information to discover the state-of-the-art knowledge on the subject. The research project will ultimately reflect a reform-based study in which recommendations in terms of specific proposals will be offered.
