BY DENNIS NDIRITU
The adoption of a new constitution characterized by devolution of resources and responsibilities to autonomous multi-level governments has been credited as one of the key transformative tenets of the 2010 Constitution geared towards addressing previous, real and perceived, exclusions to bring about equity in development.
Among the normative features of the new transformative dispensation is the provision of Devolution engrained under Article 10 of the Constitution and which is a common thread pervading the whole order.
A mere glance at Article 6(2) provides the conclusion that in establishing Devolution, as a common thread cutting through the Constitution, Kenyans chose a co-operative system of devolved government and not one specifically emphasizing on autonomy. In embarking on this highly ambitious decentralization that seeks to fundamentally change the relationship between the government and citizens under the 2010 Constitution, it was destined to have significant implications on the right to health and access to health care
Devolution of health
After years of centralisation of health services and control of the health docket from Nairobi, Devolution was seen as the antidote to the ailing health sector. The reasons for devolution of health have striking similarity to the objectives of Devolution under the 2010 dispensation, and these include, but are not limited to, promoting accountable exercise of health power by the counties; give powers of financial self-governance with regard to health to the people and enhance the participation of the people in the exercise of these financial powers; recognize the right of communities to manage their own health affairs and to further their development; protect and promote the interests and rights of minorities and marginalized communities with regard to their health; promote social and economic development and the provision of proximate, easily accessible health services throughout Kenya and to ensure equitable sharing of national and local resources that enhance adequate provision of healthcare throughout Kenya.
Further, Kipchumba Murkomen, Leader of Majority in the Senate notes that Devolution also sought to promote access to health services throughout Kenya, address discrimination of the “low potential areas” since urban areas have had better health services than rural areas, address problems of bureaucracy in matters of health service provision especially procurement related problems, promote efficiency in the delivery of health services and address problems of low quality of health services.
Central to the heart of Kenya’s devolved structure of government and key to the efficiency of the right to health under the new constitutional dispensation is the allocation of functions and powers with regard to the health sector. The constitution under schedule four identifies functional areas and confers functions upon the levels of government. It provides the function for the national government as majorly policy formulation with regards to health and responsibility over referral facilities and regulation of the veterinary profession.
National government health functional areas postulate the idea that the national government is responsible mostly for policy formulation functions. This therefore means that implied in the policy formulation powers conferred on a national government is the power to legislate in the identified functional area as it is the policy, which informs legislation and legislation reflects policy decisions. Schedule four further goes on to provide for county functional areas. Part two which lists the functional areas of the counties gives the idea that counties majorly perform social health functions. These functional areas include health services; control of air pollution, noise pollution, other public nuisances and outdoor advertising; public entertainment and public amenities; animal control welfare; trade development and regulation; county planning and development; pre-primary education and village polytechnics; home craft centers and childcare facilities and implementation of specific national government policies on national resources and environmental pollution. This places the obligation of health services delivery squarely at the doorstep of County Governments.
This constitutional provision on health functional allocations was subsequently followed by constitutional requirements on Parliament to make legislations providing for the way in which national governments would facilitate the devolution of power, assist county governments in building their capacity to govern effectively and provide the services for which they are responsible and support county governments.
Further, the Transition to Devolved Government Act was enacted in 2012, establishing the Transition Authority mandated to facilitate and coordinate the transition to the devolved government system. The facilitation has been undertaken through the approval of the transfer of schedule four functions to the respective county governments. Pursuant to this transfer, the responsibility for the personnel and emoluments relating to the discharge of the devolved functions was from then on to be managed by the national government for a period not exceeding six months as was to be agreed between the two levels of government. As a result, the transferred functions were those of County health facilities, which included county and sub-county hospitals, rural health centers, dispensaries, and rural health training and demonstration centers.
Also subject to the transfer were county health pharmacies, ambulance services, promotion of primary health care and veterinary services to the effect that county governments were mandated to carry out, coordinate and oversee veterinary services.
However, with the onset of devolution, a number of health law issues arise regarding the impact of devolution on the right to health in Kenya.
Hesitant goodwill from National Government
This can be seen from media utterances by high rankling government officials who speak negatively about Devolution of health and, which clearly shows the Government’s luke-warm receptance of this constitutional mandate. Such was the tone in 2016 by Dr James Macharia, then Cabinet Secretary of Health, who in otherwise no light terms categorically stated the Government’s intention of taking back the health docket if the then ongoing health crisis, which involved the striking of nurses in various counties was not resolved.
The subsequent utterances by the Central Organization of Trade Unions (COTU) that it was a mistake to devolve the health function in the first place and its rallying call on the government to revert health services to the national government does not help the quest for this devolution.
It is further complicated by development of new legislations which may be seen to claw back the gains of Devolution. Such is the case with the Health Act 2016 which allocates the national government the function of Procurement of pharmaceutical and non-pharmaceutical goods for public health facilities through Kenya Medical Supplies Agency (KEMSA) except as otherwise delegated to procuring entity within the County government. This, although fashioned in good intent may ultimately end up frustrating the devolved health sector especially with our “bandit economy” filled with procurement cartels and ‘tenderpreneurs’.
Further, sub-sections 4 and 5 of the Act cast aspersions on the place of Kenya Medical Supplies Agency (KEMSA) as this provision may be misused to the disadvantage of provision of the highest quality of drugs in the counties. It is perhaps these events that led the applicants in Republic v Transition Authority & Another Ex parte Kenya Medical Practitioners, Pharmacists & Dentists Union (KMPDU) & 2 Other to claim that the counties were not yet ready for devolution of health services as they had a serious shortage of doctors and did not have adequate finances to finance this devolution. These outright outbursts by both the national government and trade unions and developed Bills and government policies do not augur well for implementation of Art 43 as it already shows a clear indication by the national government not to effectively effect this right.
There is seen to be a big lacuna in the law regarding resolution of the problem brought by health functions, which do not necessarily fall under any level of government as per the Constitution. The Leader of Majority in the Senate notes that the following health functions have been left undefined; preventive and promotive health services, HIV/AIDS programme and other Sexually Transmitted Infections (STIs), family planning, health inspection and other public health services and quarantine administration.
Dr Mutakha Kangu, a legal and public policy professional with expert proficiency in constitutional theory, architecture and design, devolution of power, fundamental rights and freedoms and governance echoes Murkomen’s inclinations by calling for clarity in distribution of functions. For him, the consequential effects of lack of clarity are duplication of functions, easy shift of blame between national and county governments hindering accountability and poor resource allocation.
These undefined functions will end up being characterized as residual functions to remain at the national level, which may be a dent on the effective realization of the right to health as national government will be obligated to perform a function that the county government is easily capable of undertaking. It is for this reason that these functions need to be unbundled and prevent confusion and conflict over overlapping functions, ensuring performance of functions by accountable bodies and effective distribution of assets and liabilities between the two levels of government.
Under schedule four, the function of referral hospitals is to be maintained by the national government. However, the contention is “what amounts to a referral hospital.” In Okiya Omtatah Okoiti & Another v Attorney General & 6 others the petitioners sought an interpretation of Sec 23, part 1 of the Fourth Schedule and section 2 of part 2 of the fourth schedule of the Constitution as regards the meaning of the words “national referral health facilities” and “county health facilities”. They said that the respondents and the second interested party had given the wrong interpretation to the words “national referral health facilities” in section 23, part 1 of the fourth schedule and the words “county health facilities and pharmacies” in section 2(a), part 2 of the fourth schedule. According to the petitioners, the words “national referral health facilities” not only meant Kenyatta National Hospital and Moi Teaching and Referral Hospital, but also meant all public hospitals from level 2 to 6, as designated by the Ministry of Health. Further that the words “county health facilities and pharmacies” referred to health facilities previously managed by local authorities, or which presently, counties should and are expected to establish.
However, the court opined that the petitioners’ arguments did not hold much juice as the Local Government Act had been repealed. The learned judge asserted the new-elevated semi-autonomous position of county governments, which are inter-dependent with the national governments finding that there was no disputable matter as regards the national government being in charge of national referral health facilities.
The court said the supreme law is silent as regards the facilities that belong to level 1,2,3,4,5 and 6 hospitals so as to categorize them as either national referral health system or county health system. It is this obscurity that led the court to hold that classification of the hospitals into levels and subsequently into referral health facilities or national health system and county health facilities and system is a policy issue to be determined in accordance with the provisions of Section 15 of the Sixth schedule which establishes guidelines for the devolution of functions to be made by an Act of Parliament to make provisions for the phased transfer of functions assigned to it under Art 186 of the Constitution from the national government to the county government.
It will therefore be prudent for posterity’s sake to have a clear and final determination on the matter of referral hospitals; what they entail, and what they are currently so as to prevent eventual turf wars that might retract huge leaps made in the achievement of the devolved right to health given the continued growth of hospitals and the albeit silent graduation mechanisms in place.
Emmanuel Nzaku, a law graduate with a bias in health law, suggests a very persuasive solution to this problem, through the adoption of schedule four criteria in pronouncing the respective education functions of national and county governments to the health sector so as to decipher the intended functions and meaning of county health services, which in turn would be operation of primary healthcare. Maybe, just maybe, this might prove the “light bulb moment” for implementers of devolution of the health sector and will effectively guard against the erosion of the right to health by devolution. But that is for judicial
time to tell.
Under Art 253, counties are empowered to establish offices and employ people. This spells more trouble to the already existing marginalization between counties as some of them, especially those not found in hardship areas will have the privilege of employing qualified health personnel.
As correctly predicted, counties have become the new arena of industrial actions. This incapacity of dealing effectively with human resource at the county level has further escalated into controversy over recruitment of doctors and employment of student doctors after internship where counties object to this recruitment and employment citing financial constraints. The financing of the health sector further worsens this human resource dilemma. Currently, financing of the health sector is still way below the 15% Abuja commitment.
Devolution of health, despite all the aforementioned constraints, has still created a lot of positive results with regard easy access to health facilities, creation of employment opportunities, opening up counties for development of more health facilities through provision of infrastructure, channeling of experienced health manpower to provide efficient health services, enabling design of innovative models and interventions suiting the unique county health sector needs, easy determination of health systems in line with citizen priorities, quick and autonomous decision making on resource mobilization and management for effective delivery of health services at the grassroots, among many others.
The success of devolution of health will depend on how the two levels of government go about implementing the Health Act and interpreting how the Act seeks to resolve the problems brought about by Devolution.