Proposed law to take away health sector from governors

Health workers will finally get a central body to manage their own affairs if President Uhuru Kenyatta assents to the final Health Act 2017.

The proposed Kenya Health Human Resource Advisory Council to be anchored in law will manage all human resource matters in the public health sector.

In a mediated document, by the two houses of Parliament and now awaiting Presidential assent, health workers’ issues will no longer be managed by either the national or county governments.

Crafted to mimic the Teachers Service Commission (TSC), the Council will deal with posting of interns, transfer of health workers, welfare and scheme of service for all health professionals and maintenance of a master register for all health professionals in counties.

The creation of such an agency has been a central demand by health workers since the debut of devolution and the cause of numerous health workers strikes. One of the conditions for striking doctors to return to work during the 2014 strike was the promise by Jubilee government to fast tract the Health Bill.

Such a Bill, health workers had demanded, would create an independent agency to manage their affairs just like the TSC does in the education sector.

But proposals in consequent drafts of the Health Bill to have health workers run own affairs have met strong opposition from the governors with support from the Senate.

This opposition was strongly articulated by the two past chairmen of the Council of Governors, Isaac Ruto and Peter Munya and in the Senate by Wilfred Machage and Mutula Kilonzo Junior.

Presidential assent

Their central argument was that health, including management of health workers are devolved functions protected by the Constitution and could not be taken away.

The National Assembly was largely sympathetic to the creation of some form of agency to deal with human resources in the health sector without infringing on the Constitution.

“We need a powerful Health Service Commission even if it means a referendum to change the Constitution,” Samuel Oroko chairman of the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU) had told striking doctors in February.

Oroko was addressing striking doctors at Nairobi’s Uhuru Park soon after union officials had been released from jail.

The Uhuru Park protests had also been attended by Opposition leaders who had promised to support the doctors’ quest for an independent agency to manage own affairs.

Meanwhile, efforts by a parliamentary mediation committee of the two houses chaired by the MP Rachel Nyamai deputised by Senator Machage were going on to develop an agreed version of the Health Bill which could be approved by the two houses.

Contested issues

The Health Bill passed by Parliament on May 25 and, now awaiting Presidential assent, is the fruit of this process. However the establishment of the human resource management council was only one of the many contested issues. “While the workers may not have got a body anchored in the Constitution as they had demanded this is a move in the right direction,” says Jeremiah Maina, chair of the newly formed Health Providers Association.

The Bill says the council will make own annual financial estimates which will be funded by the Exchequer through Parliament and independently manage own financial matters. Maina, a longtime unionist in the nursing sector, says financial independence makes all the difference.

“It will now depend on whether the council leadership, once constituted, will be assertive enough to grab the requisite power.”

Of the 12 members of the proposed council, eight will come from the two levels of Government, three from academia and one; the chief executive officer will be recruited by the Public Service Commission. The chair will be appointed by the President.

Fierce struggle

If assented to, the Bill is likely to trigger a fierce struggle at Afya House and within the health community because for the first time it proposes the creation of the powerful post of the Director General of Health. The long awaited Health Bill, first drafted in 2010, during the coalition government, is the central law that will guide the entire health sector in the county.

It is on this that other subsequent legislations in the sector will follow.

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