By Dennis Ndiritu
The establishment of the Health Bill 2016 sought to, among other things, establish a unified health system, and coordinate the inter-relationship between the national and county governments through regulation of healthcare services – the preamble of the Bill illustrated its intention to resolving the problems occasioned by devolution.
From its objectives, we note that the Bill sought to address other previously unaddressed areas such as what constitutes the right to emergency medical treatment, integration of health providers at the national and county level, and distinguishing the role of health regulatory bodies and their significance with the policy making functions of the national government.
Section 4, in obligating the State to fulfil its Article 43(1) duties, binds county governments to their Schedule 4 obligations regarding the provision of healthcare. However, this is tied to the provision of necessary resources to match these allocated functions, which clouds the deafening silence of the Constitution on provision of emergency medical treatment.
However, the rather lenient fine for violation of this provision maybe its greatest weakness.
The Bill further, in Section 12, in providing for the rights of health workers to a safe working environment that minimises the risk of disease transmission and injury or damage to the health care personnel or to their clients, families or property, seems to address the harassment of healthcare providers by county governments, such as through threats of dismissal from employment when they issue strike notices. Such was the case in Kenya National Union of Nurses vs. Nairobi County Government & 5 Others  eKLR, where the court granted the applicants’ request to stop county government officials from harassing nurses, and also terming the dismissal of these health workers as unconstitutional as it was not done in line with the county public service commission regulations.
In Section 15, the Bill seeks a cooperative governance system between the two levels of government, a boost in intergovernmental relations, as evidenced by the recent turf wars on referral hospitals as was the case in Okiya Omtatah Okoiti & Another vs. Attorney General & 6 Others  eKLR. Here, 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 in regard to the meaning of the words, “national referral health facilities” and “county health facilities”. They claimed 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 Levels 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 merit as the Local Government Act had been repealed, and the Constitution had created a new governmental between the two levels of government. The learned judge further asserted the new-elevated semi-autonomous position of county governments, which are inter-dependent with the national governments. The court found that there was no disputable matter in regard to the national government being in charge of national referral health facilities. The Court also pronounced itself on the Constitution’s silence on the definition of national “health referral facilities” and county health facilities, noting that the supreme law is still silent in regard to facilities that belong to Level 1,2,3,4,5 and 6 hospitals, so as to categorise 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, further noting that 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.
Address human resource problem
Further, the creation of the office of the Director General whose duty is to advise national and county governments on national security with regard to health matters, as well as who is in charge of internships of county health workers, is an attempt at addressing the human resource problem at the counties especially the recent crisis as to the absorption of trainee doctors after their residency period. The creation of the County Executive Department, responsible for implementing the national health policy and standards as laid down by national Ministry of Health – and coordination of service delivery – further enhances this cooperation with national government to realise this devolution goals and goes along way in addressing the human resource problem.
The National Health System is meant to work in a manner that respects the distinct levels of government, while respecting the principles of cooperation and coordination as outlined in this Act, and in legislation regulating the relationships and functions of the county, a great effort in aligning healthcare provision with the provision of devolution under the new constitution.
The requirement on national and county governments to ensure the progressive equitable distribution throughout the country of publicly owned health institutions, including hospitals, health centres, pharmacies, clinics and laboratories, as are deemed necessary for the promotive, preventive and rehabilitative health services together with the incentive to enter into public-private partnerships goes along way in achieving the devolution of health goal of promoting access to health services through the country, and addressing discrimination of “low potential areas”. This also doubles up as a good resolution attempt at the human resource problem in county health facilities, since roping in private partners in provision of health care serves to increase the financial base from which better perks will be set for these employees thus preventing industrial actions and therefore ensuring a smooth provision of healthcare services throughout Kenya.
However, the Bill, in Section 24, through provision for the management of referral health facilities by the national government still seems to leave the matter of referral hospitals unresolved, negating calls by counties to devolve these referral hospitals so as to enhance public health delivery.
The Health Bill has created various institutions such as Kenya Health Sector Intergovernmental Consultative Forum, The Kenya Health Human Resource Advisory Council, The Kenya Health Professions Oversight Authority, and the National Research for Health Committee, to help streamline the human resource problem in the county health sector, and establish a national health system which encompasses public and private institutions and providers of health services at the national and county levels to facilitate the highest attainable standard of health services in a progressive and equitable manner.
The Bill on procurement provides that the procurement for the public health services of health products and technologies shall be undertaken in line with the Public Procurement and Disposal Act, as well as the inter-governmental arrangements for medicine and medical products agreed upon where the Kenya Medical Supplies Authority is the primary provider. This, together with the requirement that the national government shall provide guidelines on procurement, distribution and management of health products and technologies, including essential medicines, laboratory chemicals and reagents and non-pharmaceuticals at all levels of the national health system, aim at addressing the mismanagement that has been happening in procurement of health facilities in county hospitals, that has enabled cartels and corruption to flourish to the benefit of a few individuals in these county offices, at the expense of quality healthcare.
Financing of the health sector has been addressed through provision for consultation between the national government and individual county authorities on cost sharing mechanisms for services provided by the public health system, without significantly impeding the access of a particular population groups to the system in the areas concerned. This is a thorn in the flesh of devolution of health, which has repeatedly led to industrial actions by health workers in county hospitals.
Finally, the Bill categorises the various levels of hospitals – namely Levels 1, 2,3,4,5 and 6 – with referral hospitals to be established in every county. This establishment of referral hospitals in the counties seeks to open up quality health care throughout the country at an affordable fee, thus also relieving pressure on the minimal referral hospitals already present.
The success of devolution of health in Kenya will depend on how the two levels of government go about enacting and implementing the Health Bill 2016, and interpreting how the Bill seeks to resolve the problems brought about by devolution. Though healthcare has been devolved, the national government remains the policy-making supremo, and hence will be pivotal in the realisation of this right in this new setup.
The Health Bill needs to be implemented effectively to help shed light on the grey areas in existence and iron out the problems addressed. As to whether the Bill has or will fully resolve the health debacle in Kenya remains a “time will tell” question hinging principally on the goodwill of existing governments to fully implement it upon enactment.