County bosses want to be allowed to buy drugs and medical supplies from different dealers instead of being restricted to the Kenya Medical Supplies Authority (Kemsa).
The Council of Governors claims that Kemsa has not been fulfilling its end of the bargain thus jeopardising health service delivery in the grassroots.
In a case filed against the National Assembly, Senate and Attorney General, lawyer Eugene Lawi told High Court judge James Makau that Kemsa's delays have resulted in some county hospitals going without medicine for two to three months.
The governors claim the National Assembly amended the Kenya Medical Supplies Authority Act by inserting punitive clauses targeting those who fail to buy medical supplies from Kemsa.
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Justice Makau heard that the law now provides a penalty of Sh2 million or five years imprisonment, or both, for anyone who purchases drugs from other firms.
“Kemsa is completely unable to meet the demands for county governments. Unless this honourable court intervenes, health service delivery in the counties will be adversely interfered with and Kenyans, especially children under the age of five, risk losing their lives,” argued Mr Lawi.
According to the county chiefs, the contested sections of law were passed by the National Assembly, but were not taken to the Senate for deliberation.
The governors claim the legislation has clipped their independence, contrary to the spirit of devolution.
“Despite the Bill being an ordinary Bill concerning county governments, the same was not forwarded to the interested party for further consideration as required by the Constitution. The amendments are unconstitutional as they contradict the very foundation of devolution,” Lawi added.
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The lawyer cited a recent malaria outbreak in Baringo, saying Governor Stanley Kiptis was at the mercy of Kemsa to deliver medicines urgently needed in county hospitals.
“The Constitution primarily devolved health service delivery to the county governments thus giving them power to make decisions on health investments. But the amendments created a monopoly,” Lawi said.
MPs amended Section 4 of the Kemsa Act in May this year before President Uhuru Kenyatta signed it into law.
National Assembly lawyer Mbarak Ahmed, however, told Justice Makau there was a similar case filed by the Senate before the Supreme Court.
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