Crisis in health sector is far from over, needs more players

Gervase Akhaabi
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The recent strike by officers in the medical field that caused untold suffering to Kenyans, including death, may have momentarily died down, but the crisis is far from over. This is not just a medical or industrial problem but also a constitutional one that requires more players to address. One of the principal objects of devolution under Article 174 of the Constitution of Kenya is to facilitate decentralisation of state organs, their functions and services from the capital and to provide proximate and easily available services.

Pursuant to and in accordance with Article 186, section 2 of Part 2 of the Fourth Schedule to the Constitution now devolves and assigns certain functions in the health sector in Kenya to county governments.

There is, therefore, no issue as to whether or not these functions have been transferred from the national government and assigned to the county governments. Article 187 (2) (b) is clear that once a responsibility for the performance of a function has been transferred and assigned by the Constitution, it will remain with the government to which it has been transferred or assigned by the Fourth Schedule. Moreover, as the constitutional provisions in this regard relate to the objects of devolved government, they are entrenched and can be altered only by a referendum.

The functions that have been assigned to the county governments in the health sector are critical to the basic health services delivery in the country and the realisation of the objectives of devolution.

The county governments do require necessary human, financial and infrastructural resources to perform the assigned functions and exercise the powers in health services. They also require the resources necessary for the performance of the functions or exercise of the powers that have been transferred and assigned to the county governments in the health sector.

But the national government contends that it has put in place the necessary financial and infrastructural resources to enable the county governments perform their constitutional functions regarding the devolved health services. These have been transferred to the county governments. The national government has also transferred the financial resources through the parliamentary budgetary allocations. The major point of contention is in relation to the human resource in the health facilities.

The public health sector employees, like all other public service employees, fell under the management of the country’s public service through the Public Service Commission. Their terms and conditions of service have been determined and regulated by the Commission. The Commission has been and remains, in law, the employer of all public officers in Kenya except those in the employment of the now defunct local governments.

If the health workers in the public health sector are transferred to the county governments they will, of necessity and law, have to sever their contractual relationship with the Public Service Commission and enter into new contractual arrangements with the County governments. Public officers in the devolved health services contend that appropriate and suitable arrangements have not been made for them to transfer their services to the county governments and have made their demands, which they wish to be met before they transfer their services.

No modalities have been made or agreed upon for their transfer to the county public service and no suitable arrangements seem to exist in the public domain to facilitate this. The result is that the health workers are in the employment of the national government under the Public Service Commission but their services are transferred to and deliverable in the counties.

On the other hand, the counties have the constitutional responsibility to perform the devolved health functions but have no human resource to deliver those services. This problem will persist and continue to create crises similar to what was experienced during the doctors’ strike. The way around it is – first and foremost – the Transition Authority ought to have initiated the process to facilitate the transfer of all necessary resources to enable the county governments to perform the assigned functions.

Secondly, under Article 96, it is the role of the Senate to represent the counties and serve to protect the interests of the counties and their governments. The Senate has a legislative function, which it should discharge, and initiate appropriate legislation that will facilitate the transfer of the services of health workers from the Public Service Commission to the county governments.

Thirdly, with the statutory responsibility of ensuring that State organs and institutions comply with and implement the constitutional requirements, the Constitutional Implementation Commission should ensure that Parliament carries out its constitutional mandate and establish an appropriate legal mechanism to implement Article 186 (2) (a) of the Constitution regarding the transfer of human resources in the health sector to the county governments.