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.
info@nabwanaadvocates.com
follow Nabwana @kakapen
follow Nabwana @kakapen
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