Urgent intervention may prevent South Sudan from unraveling

President Uhuru Kenyatta on 26^th December led a special EAC contingent into talks with President Salva Kiir of South Sudan 11 days after fighting broke out in the youngest African nation, leading to thousands being killed and hundreds of thousands being displaced.

In the most vicious conflict in Eastern Africa since the 21 year war that led to the formation of South Sudan, President Kiir is pitted against his own deputy president in what he called an attempted coup. With the spread of the violence it emerges that it is the President’s tribe the Dinka who are at loggerheads with the Nuer tribe of Deputy Riek Machar. 

What is shocking about the conflict is the escalation of violence, with reports of Sudanese killing Sudanese in horrific manner; using knives and stones and amputating limbs of victims. United Nation officials believe thousands have been killed since violence erupted at a SPLM meeting, when President Kiir accused his deputy Machar of plotting a coup. Violence has since spread to half of the country’s 10 states.

The speed at which the situation has deteriorated has given rise to fears of a civil war and the thousands of deaths thus far warn of an impending genocide. It is for these reasons that President Kenyatta’s drive to negotiate between the warring factions is timely.

This being the first international crisis of its kind that President Kenyatta is handling as the leader of the East African Community, as a nation we are keen to see him emerge successful from the talks. Barely 11 days ago, President Salvar Kiir had full control of his country, a matter that has since become contentious, with rebel forces at first seizing control of key towns of Bor the capital of Jonglei State and Bentiu the main town of the oil producing state of Unity. Since then, the government troops have retaken Bor and are attempting to regain control of Bentiu.

The struggle to stabilize as a nation is one that South Sudan has had since the referendum forming the state in 2011, the country is divided ethnically and politically and there are still several armed groups still active. 

The genesis of the situation in South Sudan speaks volumes of the casual manner in which we as African nations dealt with the young state. Even as they struggled to unify under one flag, the African Union stoically ignored the simmering tensions and flare ups in the country. Never once during its short national history has South Sudan fully experience national peace and security. Sporadic fighting continuously interrupted the fragile fabric of the nation, and an ongoing tense relationship with the Khartoum government of Sudan would from time to time contribute to the insecurity in the region.

It is imperative that this time round, not only the East African Community but the African Union as well step in to seek long term resolutions to the conflict in South Sudan. At the rate of the violence going on, it is only a matter of days before a full on civil war erupts in the country, and this would dramatically affect the region.

Unlike the past 21 year war that the South has endured, this time, both parties to the conflict are well armed and well trained. Indeed from the reports of the violence, deaths and displaced people, the propensity for a civil war in South Sudan becoming a terrifying and devastating conflict the likes of Syria is quite high.

As a continent, we have the nasty habit of ignoring conflicts within to our own detriment, always waiting for the UN or Western nations to intervene. Even in the case of Libya, the African Union merely made a few rather toothless resolutions far too late in the day when the country was far gone.

Seeing as the conflict in South Sudan is only 11 days old, the intervention of the EAC led by President Kenyatta is applause worthy. However, with an estimated 81,000 people already displaced and a death toll of nearly 3000 people in just 11 days, this situation has escalated far too rapidly for it not to have deeply rooted precedents that the EAC must have known about and did not respond to.  It certainly is no secret that there was indeed a power struggle between President Salva Kiir and his Deputy Riek Machar. 

Even as we hope for a positive outcome from the talks and hopefully an end to the conflict, we need to acknowledge that our response to simmering tensions in neighboring countries like South Sudan and the Central African Republic is lackluster. It’s time the leaders of the African Union as a collective stop spewing rhetoric about African solutions and actually forge towards realistic and sustainable measures.

#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 (5^th) 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
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#sickat50 - Health crisis escalated by unreasonable government stand!

The healthcare workers strike has been on for 10 days now and still there is no progress in terms of reaching a mutually satisfactory arrangement. This is despite the unions approaching the government several times in the past 6 months and in turn issuing a strike notice 6 weeks ago that requests a stay of human resource devolution to the county level and implementation of the Collective Bargaining Agreement struck in July 2012. 

The nationwide strike has resulted in thousands of healthcare workers downing their tools and a complete paralysis of public health facilities at the county level. The recent high court ruling against the unions further escalated the stalemate. Sadly, President Kenyatta’s statement soon after this ruling did nothing to reconcile the situation.

The county governors now have permission to hire other healthcare workers to replace the striking force. This sort of directive just shows the level to which this government completely lacks coherence of the issues at hand. There are no other healthcare workers (HCWS) to hire; in fact Kenya is dismally short of HCWs by a massive shortfall of at least 50,000 doctors and hundreds of thousands of nurses and other cadres.

So this plan to hire other workers is just ridiculous and of course will not work. The main thing that such directives do is place the blame for patient suffering squarely where it rightly belongs, at the feet of insensitive and incompetent government officials. 

One of the recurring accusations from the government towards the unions is that the HCWs are causing patient deaths and should go back to work for the sake of their patients. But this argument is just a baseless guilt trip that has no bearing in reality. Does the government care about patients ONLY when HCWs are striking? As one medic states “You cannot chronically under invest in health and at the same time talk about how you care about Kenyans, the two are incompatible. While the government has the luxury of pretending to care about patients, we (HCWs) who have to care for the patients “all the time” do not have the luxury to fail patients in future. We know this irregular devolution will hurt the patient in future, why should we go back to serve the patient today and forever fail the patient due to poor staffing?”

We voted in a new constitution with the hope that the transition and devolution of services would be done in a structured and systematic manner. This means that even in the devolution of health services, proper policies and legislation must be in place such that the process is implemented across the country in a manner that will genuinely deliver healthcare services to all citizens and for the foreseeable future. 

Instead, this government chooses a hard line position that completely ignores the concerns of the healthcare unions and harasses and intimidates the HCWs with no regard whatsoever for the public.

Healthcare is one of the most sensitive institutions and services that this government is obliged to provide. It is just criminal negligence on the part of government officials to reject a call to follow the law and order the devolution process in a responsible and considered manner.

While the governors choose to sack and hire HCWs through the media, the propaganda machinery is hard at work to blind the public from the grave realities being presented by this situation. Firstly, the governors did not hire the HCWs thus they cannot fire them, they cannot evict them from government housing and there is no pool of unemployed HCWs from which to source HCWs. 

Politicians should not be allowed to interfere with healthcare in such a manner, their utter ignorance of how sufficient and effective healthcare systems are established ultimately creates collapsed facilities. The best example of a devolved hospital that has been graphically mismanaged due to incompetent political leadership is Pumwani Maternity hospital, the country’s largest maternal care facility. Pumwani is currently in a consistent state of collapse, barely able to cater to the thousands of women who attend this facility each year and the maternal and infant mortality rate is unfortunately very high because of this.

While political leaders claim that the HCWs strike and in particular the doctors contravenes the Hippocratic oath, its best to remember that such claims are rooted in clear ignorance of the doctors’ creed. Kenya’s medical fraternity does NOT administer the Hippocratic Oath which incidentally is an outdated oath to the god Apollo and other goddesses. Rather, they administer the Geneva Declaration also known as the Physician’s Oath which was developed by the World Medical Association in 1948 and was revised as recently as 2006. Moreover, medicine is a PROFESSION and not a CALLING, so to claim that doctors should treat patients without consideration of their own needs by the government is absurd. 

In fact it is the words of the Physician’s Oath that absolutely justifies this HCWs Strike, as it clearly states that : “I will not permit considerations of age, disease or disability, creed, ethnic origin, gender nationality political affiliation or any other factor to intervene between my duty and patient; I will maintain the utmost respect for human life; I will not use my medical knowledge to violate human rights and civil liberties even under threat, I make these promises solemnly freely and upon my honor.”

The refusal by this government to structurally and properly implement the devolution of health services to the nation is a violation of citizens’ human rights and a complete disregard for human life. Were the doctors to resume duty in decrepit, mismanaged, underfunded and under resourced institutions that are in a constant state of collapse, it would be a violation of human rights and a continuation of needless deaths of patients who have consistently been denied proper medical care by a callous leadership. 

Moreover, the decision by the national government to pass on new payroll to the county level that includes a slashing of gross salaries by up to 45% is not only illegal it is a further abuse of HCWs civil rights. With all the propaganda flying around driven at turning the public against their own medics, it is a shame that these truths concerning the health sector are ignored. It is for our own sake that these doctors are insisting on the formation of a Health Service Commission and the implementation of the Collective Bargaining Agreement which would inherently establish the exact structures that ensure consistent and effective medical services for all Kenyans. It’s time for the public to wise up to the lies being propagated that seek to deny them what is rightfully theirs!

#sickat50 – Health Care Workers should not relent in their strike!

12^th December 2013 marked Kenya’s 50th year as a sovereign nation. As the countdown to the birthday began some minutes before midnight, the healthcare workers (HCWs) strike entered its 3^rd day. This is the third strike instituted by the Kenya Medical Practitioners and Dentist Union and the first time that all cadres of healthcare workers are on strike at the same time.

That means that at nearly all health facilities nationwide at the district level and below there is not a single healthcare practitioner to assist patients. These facilities are completely paralyzed and shut down. I am saying this as a matter of fact, because in the coming days you will see fabricated media reports that certain cadres of workers in some areas are back at work.

The reasons for the nationwide strike are simple. The government breached Collective Bargaining Agreement struck to implement devolution, they also illegally passed the HCWs payroll onto the County Governments without firstly creating the laws and legal framework necessary for devolution of health and they instituted a slashing of healthcare funding across the nation from a recommended 15% of government budget to a miserly 2.7% which subsequently resulted in projected expenditure of only 24-50 kshs per person per year. In totality, what the governors, senators and politicians are calling devolution is actually just an illegal slashing of HCWs salaries, nothing more. 

There is no dedication of more resources so that more people get adequate healthcare.

As expected, the government ignored issues raised by the unions. In fact, this government was given 6 weeks’ notice of industrial action prior to the strike. A day before the strike some governors even threatened to sack HCWs in their counties, of course forgetting that they are not the Public Service Commission and thus did not hire and cannot fire.

Speaking of Commissions, the governments’ response to the legitimate demand to create a Health Service Commission was that it was unconstitutional according to article 234. Well, article 234 simply names other public service sector commissions it does not limit or prevent a Health Service Commission from being formed. Indeed it’s utterly hypocritical for a government that is blatantly ignoring the constitutional implementation process on devolution of healthcare to even talk about the same constitution. They actually claimed that they will devolve salaries’ and then later on create the laws under which salaries would be managed. How absurd!

Of course, such absurdities are a hall mark of government. Once they realized that they cannot use some random quote from the constitution they ran to the high court to get court orders to force the HCWs to end their strike. As if that was not enough, politicians in different counties have stepped up the intimidation and harassment, some even threatening to evict HCWs from government housing if they don’t return to work. As I said, county governments did not hire the HCWs, they cannot fire them and they cannot evict them.

I urge the HCWs to stay resilient and not to relent in their fight for justice. It is unimaginable how horrific the healthcare sector will become under such politicking and selfish leadership especially with such drastically slashed budgets. Surely the death toll will be astronomical, when the hospitals can only afford to spend a miserly 24 ksh on your treatment!

More importantly, as we celebrate Kenya’s Jubilee anniversary, let us not forget that it is those who sacrifice their entire lives and dedicate their work to the service of the people who need to be honored the most in this country. We should not be as shallow and superficial as to call the many roads, parks, hospitals, buildings and airports named after one or two people the achievements of this land. Rather it is the people, who have committed themselves, and are enduring the most deplorable working conditions, who are our greatest achievements.

As we look forward to the next 50 years, I wish to celebrate our Healthcare workers as well as our other civil servants who indeed are heroically doing their best to keep the systems running despite the best efforts of greedy and selfish politicians to plunder the nation. Solidarity!