Health workers’ strike proves that devolution is in ICU

Mombasa Governor Hassan Joho (left) talks to patients at the Coast General Hospital on Wednesday following the health workers’ strike. Photo/Kevin Odit 

By MARVIN SISSEY

In Summary

• Scores of innocent Kenyans, especially the poor, are the latest collateral damage.

Written in the early 1880s, Ambrose Bierce’s Devil’s dictionary definitions, though tongue-in-cheek, were in many ways more accurate than even Noah Webster’s.

Check the genius in how he defines this particular phrase: Collateral Damage (n) - An armed forces tactic composed of bombing the c.....p out of innocent women and children on the off chance of surprising a terrorist.

To paraphrase this definition while keeping in the spirit of the Devil’s dictionary in reference to the on-going stand-off in the health sector. Collateral Damage (n) the government and medical staff union’s tactic composed of fighting over salaries and deployment while leaving innocent women, children and old men to die helplessly on the off chance that one of the fighting parties shall swallow their ego and compromise.

Scores of innocent Kenyan citizens, mostly among the lower class have become the latest collateral damage, succumbing to otherwise curable illness simply because the parties responsible to take care of their health matters can’t agree on simple administrative issues.

The Kenya Medical Practitioners and Dentists Union, the Kenya Health Professionals Union, the Kenya National Union of Nurses and the Union of Kenya Clinical Officers have jointly been up in arms, urging their members to boycott duty for the sole reason that they oppose their functions being decentralised from the national government and being devolved to the counties.

The move to devolve this function was not pulled from the blues. It is particular detailed in Chapter 11 of the New Constitution.

Section 186 (1) states “Except as otherwise provided by this Constitution, the functions and powers of the national government and the county governments, respectively, are as set out in the Fourth Schedule.”

The Fourth Schedule goes ahead to list the following services to lie among the confines of the county government; county health facilities and pharmacies, ambulance services, promotion of primary health care, licensing and control of undertakings that sell food to the public, veterinary services (excluding regulation of the profession); cemeteries, funeral parlours and crematoria; and refuse removal, refuse dumps and solid waste disposal.

Foreseeing difficulty in devolution, the constitution goes ahead to detail temporary switches of functions between the national and the county governments under section 187 which detail as follows in subsection 1.

A function or power of government at one level may be transferred to a government at the other level by agreement between the governments if,(a) the function or power would be more effectively performed or exercised by the receiving government; and (b) the transfer of the function or power is not prohibited by the legislation under which it is to be performed or exercised.

Under subsection 2 , the constitution goes ahead to offer more clearer guidelines that once a function or power is transferred between governments at one level to a government at the other level then (a) arrangements shall be put in place to ensure that the resources necessary for the performance of the function or exercise of the power are transferred; and (b) constitutional responsibility for the performance of the function or exercise of the power shall remain with the government to which it is assigned by the Fourth Schedule.

It is unfortunate that the constitution has to be worn like a complete three- piece suit together with the corresponding shoes. Constitutionalism does not allow us to choose which aspects we like and which ones we don’t depending on our convenience.

But as the same constitution shows, it is not arrogantly stiff but allows for a lot of room for adjustments.

Through a Gazette notice, the Transition Authority transferred several health functions to the counties after consultations with both the ministries and other external stakeholders.

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Doctors and other health workers however have real fears about devolution of their functions since they doubt the capacity of the counties to absorb them.