Legality of ‘Linda Mama’

Health systems must respect levels of government

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By Tabitha Griffith Saoyo & Nerima Were

“We find that NHIF is not even minimally transparent. If the corporation is going to continue to increase its management share of public health resources, and to eventually act as the principal financier in a universal health insurance scheme in Kenya, it must improve its transparency and financial management practices” – J. Lakin & V. Magero

On December 22, 2017, then Acting Chief Executive Officer of Kenyatta Hospital issued an internal memo indicating the transfer of free maternity services to the National Hospital Insurance Fund, a national government body established under the NHIF Act. The free maternity services would now be offered under the Linda Mama Program.

Linda Mama is an expanded program for free maternity health package benefits that targets all pregnant women who are Kenyan citizens. The package includes antenatal care, delivery, post-natal care, conditions and complications during pregnancy and outpatient care services for the infant for a period of one year. Undoubtedly, Linda Mama is a program geared towards achieving the broader right to health as enshrined under Article 43 (1) (a) of the Constitution which demands for the highest attainable standard of health, including reproductive health care.

Health is a devolved function. The Fourth Schedule in particular sets out a wide and distinguishable array of county functions including the provision of primary health care, which is interpreted to include maternal health care.

This distinction is further reinforced by Section 5 of the Health Act, 2017, which reaffirms the right to free maternal health care and thereafter attributes this role as a county function.

This article interrogates the legality, or otherwise, of anchoring free maternity care (under the auspices of the Linda Mama program) on NHIF, a state corporation and national social health fund. The article argues that the legislative framework, anchored on the Constitution, the Health Act, County Governments Act, Inter-governmental Relations Act and several internal directives from the Ministry of Health are all indicative of maternal health as a county function, for which funds must be directly allocated to county governments. For the government to therefore divert maternal health funds to NHIF it is not only unethical and questionable in principle, but also illegal in law.

To appreciate the genesis of this argument, one must first review recent shifts and trends in maternal health care since the enactment of the Constitution, 2010. In June 2013, in an effort to give life to the constitutional underpinnings on socio-economic rights, and in particular, the right to adequate health care, President Uhuru Kenyatta issued a directive that maternity services would be free of charge. This Directive was shortly followed by a circular issued on June 7, 2013 by then Director of Medical Services to all national referral facilities and the interim county health coordinators giving further guidance on the free services. This circular acknowledged the role of county facilities in the provision of free maternity services. This recognition of county functions was perhaps informed by the forth schedule of the Constitution, which in its attempt to clarify and distinguish between county and national roles, assigns promotion of primary health care to counties.

The assignment of functions was further elaborated in the Legislative Supplement, Legal Notice 137–183 of August 2013 whereby, in exercise of the powers conferred by Section 23(1) of the Transition to Devolved Government Act, 2012, certain functions were transferred to county governments. The Legal Notice clarified county functions to include promotion of primary health care including health education, health promotion, community health services, reproductive health, child health, amongst others.

The Health Act, 2017, further reinforces the role of counties in the provision of maternal health care under Section 5(3) which stipulates as follows:

The national and county governments shall ensure the provision of free and compulsory — (a) vaccination for children under five years of age; and (b) maternity care.
The Act goes further to clarify that for the purposes of implementing the above duties, the National Government shall in consultation with the respective county governments provide funds to county governments. Section 20 of the Act mandates county governments, in furtherance of the functions assigned to them under the Fourth Schedule of the Constitution, to be responsible for service delivery, including the maintenance, financing and further development of those health services and institutions that have been devolved to them. The first schedule of the Health Act further clarifies that maternity services are assigned to level three facilities (health centres) which primarily rest in county governments.

Similarly, the 2014 Beyond Zero Campaign spearheaded by the first lady, Margaret Kenyatta, as part of the wider attempts to reduce maternal and child mortality, recognised that maternal health care is a county function. An examination of the Memoranda of Understanding (MOU) duly executed between the Health ministry and several county governments recognised that maternal health is a function vested in county governments and for which Section 5 (2)(c) of the County Government Act vested this function on counties.

In light of the above, what mandate does NHIF have in regulating reimbursements and financing of maternity health care which in law ought to be a prerogative of the county governments? This move places barriers towards counties effectively offering maternal services and further undermines the mandate properly put under the ambit of the county government by the law. The rationale informing a transfer of this function to the NHIF entity is not clear. Whereas NHIF dominates health insurance in Kenya, in terms of membership, this simply cannot be a justifiable reason for re-directing maternity care funds to the Linda Mama program that is currently housed at NHIF.

Article 187 of the Constitution gives clear guidance as to when a function can be transferred from one level of the government to the other. This transfer of functions, as further elaborated under Section 26 of the Intergovernmental Relations Act, must be in writing. Was there a transfer of maternity health functions from the county government to the national government? There has been no written agreement brought to light on the Linda Mama program hosted by NHIF.

Moreover, the litmus test, under Section 25 of the Intergovernmental Relations Act requires that a government transferring a power, function or competency must ensure the assignment is to the level of government best placed to exercise or perform the power, function or competency in accordance with Article 187 of the Constitution. Were we to assume that the transfer of function was legally acceptable and agreed upon, is NHIF truly the best placed platform for the exercise of this power given its previous and most recent history as a poorly managed state outfit that lacks transparency?

Be that as it may, even if the constitutional foundation of the above were to be explained, the Constitution does not foresee the transfer of this function from Ministry of Health to NHIF. The National Hospital Insurance Fund Act establishes the objects and functions of the Board to the fund which includes receiving contributions and other payments required by the Act to be made to the fund.

Contributions are of two broad natures: first, compulsory contributions from citizens in a formal working set up. This also encompasses special contributions from persons who are self-employed. Secondly, there is voluntary contribution from people in the informal sector. Whereas the Board has powers under Section 6 of NHIF Act to receive donations, grants and endowments in respect of the fund, Tax payers’ money given to NHIF cannot be classified as a contribution or fall under the category of what an endowment, gift, donation or grant is.

The logical conclusion from the above readings would thus be that the NHIF anchored refund mechanism under the Linda Mama program is not constitutionally founded. Furthermore, it cannot stand the test of Section 5(4) of the Health Act which clearly stipulates that the national government must provide funds to counties. The use of NHIF as a third party agency thus creates a system of barriers for effective implementation of maternal health care. Devolution was aimed at promoting social and economic development and the provision of proximate, easily accessible services throughout Kenya. Refunds to county governments for expenses incurred in offering Maternal health services cannot be pegged on NHIF, a system that has over the years been discredited for lack of transparency and good practice.

The national health system must work in a manner that respects the distinct levels of government, while respecting the principles of cooperation and coordination as outlined in the Constitution and supported by the existing legal framework. To therefore hinge reimbursement of free maternity services on NHIF is to proceed in fault, and will only act as a barrier towards realization of reproductive health care within counties.

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