Thursday, 19 December 2013

#sickat50 - The Health Workers Strike and the Constitutional Provisions: A Critical Analysis By Nabwana Eugene Pascal, Advocate

Over the past few weeks I have heard and seen governors on various news items try to use power plays to ensure that health workers return back to work from their industrial action over “apparent devolution” of health services. The intimidation and effort to trample health workers underfoot is disturbing for various reasons highlighted hereafter.

We voted in a new constitution with gusto and only it’s full implementation will breathe life and make it a living document. Fortunately or unfortunately most constitutional provisions require Laws and Policies to be put in place to ensure a smooth transition, interpretation and implementation of the same. How many times did Mp’s in various periods before the last general elections attempt and succeed at watering down various electoral laws by passing various Acts of Parliament that would give many of them ‘a soft landing’ in their political lives and/or careers as some of them have made it? Further our own constitution frowns upon the breach of the rights of it’s citizens when implementing any laws. The constitution cannot conflict with itself.

That being said let us now visit the various Articles of the Constitution that have caused the recent impasse in health functions in our country. But first it would be prudent for me to highlight the Articles that protect the rights of health workers as they seek to have their voices heard over the loud political monotones. Article 10(1) mandates all state organs and state officers to take into account national principles of governance in interpretation and implementation of laws including the constitution. Some of these principles are Human Dignity; Equity; Social Justice; Inclusiveness and Non-Discrimination. How many of these rights afforded to health workers have the County Governments taken into account before making unilateral decisions? Indeed health workers who have all along been under the guidance and management of the Public Service Commission should be granted full and fair hearing in any policy or law implementation in attempting to devolve this management under the guise of devolution of health services, a point I will tackle later in this paper. In any event who is better placed in advising the County governments and National Governments in matters health policy if not the players themselves? Something is seriously wrong with our leadership!

One of the objectives of devolution as enshrined in our highest law in the land is properly espoused in Article 174 (g) of the Constitution of Kenya, 2010 as the equitable sharing of national and local resources throughout Kenya. Ever since Kenya attained independence even when we had the two level government structure, health services management was a function of the national government. But that did not mean that the said services did not benefit ordinary Kenyans in various parts of the country. The point is that, does the power to appoint, fire, regulate and pay health workers have to fall within County Government for health workers to work under various counties? Aren’t they working properly as it is now? What is this rabid need to have them fall under county government whose health policies and laws may be as diverse as we have 47 counties? Where is the job security of our health workers? My simple contention is that health services is a national resource.

Article 186 of the Constitution provides that where a function is conferred on more than one level of government, the jurisdiction is concurrent. Since the Public Service Act has not been repealed, or a new law put in place to tackle this issue, I believe doctors still, and rightly so, are governed by the Public Service Act. There is however, a conflict under the Fourth Schedule of the Constitution of Kenya, 2010 where all the volatile provisions were placed rather than in clear Articles of the Constitution which assigns ONLY NATIONAL REFERRAL HEALTH FACILITIES and HEALTH POLICIES under the National Government. If this is the case two scenarios present themselves:-
a)      The level of government in Charge of Formulation of Health Policies and Laws is the National Government. Therefore, County Governments that purport to make Policies Affecting Health Workers employed under the Public Service Commission are CRUDELY NEGATING the Constitution that they are purporting to uphold. It’s worth noting that the National Government has not enacted any Health Policy devolving the said functions to County Governments.

b)      In my opinion, it would be DISCRIMINATORY for doctors or nurses with the same qualifications with others being managed by the National Government just because they are working in National Referral Hospitals whilst others are at the mercy of various county governments? What criterion is there for Doctors to work at National Referral Hospitals for instance as opposed to County Health Facilities? There is no absolutely to tackle this aspect.
Still under the Fourth Schedule of the Constitution (Part 2) it provides that County Health Services including and in particular County Health Facilities and Pharmacies shall fall under the County Governments. Legally what does this portend?
Firstly, it is clear from the said wording that health services are intended to be devolved to Counties as per the Constitution. However, there is no clear definition or description as to whether it is only services being devolved or even management of such medical personnel including their appointment, sacking and remuneration. This creates a lacunae in the law regarding this Transition. What is worse is the fact that the same Constitution did not provide for a period of enactment of Legislation into which these Medical Services will be devolved which should have been provided for in the Fifth (5th) Schedule. In all legal honesty, fairness and logic, how then will devolution take place without an Act of Parliament and/or health policy to the same? Conversely, the framers of our Constitution anticipated such a scenario and provided under Article 186 (4) of the Constitution that for greater certainty, Parliament may legislate for the Republic in any matter. This only means that even then, there was uncertainty over these issues.
It is therefore clear that there exists a conflict in the current National legislation with that of the County Governments if any on matters that deal with Health Services Devolution.  Article 191(2) of the Constitution prescribes that where such a conflict exists then National Legislation on the issue takes precedence. Therefore, the health workers industrial action and demands are extremely reasonable and should be addressed by the National Government rather than engaging governors who prefer to make inflammatory remarks on political daises in various political functions and/or funerals. Senators and Members of Parliament also engaged in shouting themselves hoarse over this issues should instead move with speed to provide legislation as it is their function to do so.
In my personal opinion, devolution as is being advocated for by most governors may in the long run create the following problems;
i)                    Tribalism in appointments and sacking of health workers;
ii)                   Favouritism as opposed to merit in appointments;
iii)                  Negation of various bargaining Agreements that the health workers had entered into with the national government as county governments will not be interested in upholding such agreements;
iv)                 Some Counties may be mismanaged to the point of being run down and health workers may suffer economically;
v)                  Politicization of matters dealing with health which will jeopardize health services in the country and which will be prejudicial to health interests and therefore in Contravention of Article 191(2)(b)(i) of the Constitution of Kenya.
Indeed, for uniformity of management, fairness and proper distribution of health services in a balanced manner that promotes the principles of the Constitution of Kenya, 2010 Health matters should be governed at a National Level but services being devolved without health workers being at the mercy of county governments some of which have to date even failed to effectively clean their counties, provide employment and run even the basic functions that Municipal and County Councils did.

The Author of this Article is an Advocate of the High Court of Kenya practicing as such in Mombasa under the firm name and style of Nabwana Nabwana & Company Advocates.
 follow Nabwana @kakapen

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