Tuesday, 10 December 2013

#sickat50 - Right of Reply: The Health Service Commission IS Constitutional! by Dr. Oduwo Noah Akala

In a written communication dispatched yesterday, December 9th, 2013, hours to the start of the Health Workers Strike, from the Council of Governors working in tandem with the Ministry of Devolution and interested State Commissions, the above named rubbished the primary reason for the strike; the establishment of a Health Service Commission. The position put forward is that the establishment of such a commission is contrary to Article 234 of the Katiba which basically spells out the functions and powers of the PSC establishing it as a Constitutional Commission entrenched in law.What the Governors' Council failed to mention is that this same article establishes several other Constitutional Service Commission such as the Judicial Service Commission, the Teachers Service Commission, the National Police Service Commission and the Parliamentary Service Commission. Therefore, the assertion that the existence of a Service Commission for Healthcare Workers is incompatible with that of the Public Service Commission does not hold water. How come there is no conflict between the PSC and the other Service Commissions?

It is the norm for this government to quote or ignore the constitution whenever it suits them. While the same government actively contravenes article 143 (4) of the constitution which clearly states that the President is not immune to prosecution under any of the treaties that Kenya has signed and domesticated, and pushes for a deferral from trial of suspects of crimes against humanity, they turn around and conveniently quote randomly an article that does not limit or impede them from creating a Health Service Commission. In fact this much needed commission would indeed be service to humanity!

Moreover, a keen eye would observe that the Constitutional Service Commissions are based around services pegged on basic human rights; education (Teachers Service Commission), security (National Police Service Commission), access to justice (Judicial Service Commission) even representation (Parliamentary Service Commission.) What of health? What right could be more basic than this? If the Government is to be taken seriously in its purported commitment to health for all as a Vision 2030 goal, it must take the appropriate steps to establish healthcare as a priority in its national agenda.

At this juncture, I would remind the Council that the Constitution clearly states, in the Bill of Rights, that human rights belong to the individual and are not granted by the State. In adopting the stance they have taken, they violate not only Healthcare Workers' right of fair labor practices but more importantly, the citizens' right to health. The Health Service Commission should not be viewed as a favor to be granted, but as a requirement to preserve the dignity of the Kenyan people.

I quote Article 24 of the Katiba on the limitation of rights:

Limitation of rights and fundamental freedoms
(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

The question Kenyans must ask themselves is this, is the Governors' Council's position in line with the intention of the framers of our Constitution? Does it seek to abide by the article above? Judge for yourself, below is the article the Council quoted in terming the HSC unconstitutional:

Article 234:
Functions and powers of the Public Service Commission

(1) The functions and powers of the Commission are as set out in this Article.

(2) The Commission shall—

(a) subject to this Constitution and legislation—
(i) establish and abolish offices in the public service; and
(ii) appoint persons to hold or act in those offices, and to confirm appointments;
(b) exercise disciplinary control over and remove persons holding or acting in those offices;
(c) promote the values and principles referred to in Articles 10 and 232 throughout the public service;
(d) investigate, monitor and evaluate the organization, administration and personnel practices of the public service;
(e) ensure that the public service is efficient and effective;
(f) develop human resources in the public service;
(g) review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service;
(h) evaluate and report to the President and Parliament on the extent to which the values and principles referred to in Articles 10 and 232 are complied with in the public service;
(i) hear and determine appeals in respect of county governments’ public service; and
(j) perform any other functions and exercise any other powers conferred by national legislation.

(3) Clauses (1) and (2) shall not apply to any of the following offices in the public service—

(a) State offices;
(b) an office of high commissioner, ambassador or other diplomatic or consular representative of the Republic;
(c) an office or position subject to—

(i) the Parliamentary Service Commission;
(ii) the Judicial Service Commission;
(iii) the Teachers Service Commission;
(iv) the National Police Service Commission; or
(d) an office in the service of a county government, except as contemplated in clause (2)(i).

(4) The Commission shall not appoint a person under clause (2) to hold or act in any office on the personal staff of the President or a retired President, except with the consent of the President or retired President.

(5) The Commission may delegate, in writing, with or without conditions, any of its functions and powers under this Article to any one or more of its members, or to any officer, body or authority in the public service.

Dr. Oduwo, Noah Akala (M. B. Ch.

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