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Human Rights Blog

The Contestation of Rights In The Health Sector In Kenya: The Right To Health Vis A Vis Labour Rights

Human rights are universal, inalienable and extrinsically linked to each other. It is a canon point that human rights are universal, interdependent, indivisible and interrelated.[1] For instance, one cannot purport to separate the enjoyment of civil and political rights from socio-economic rights. The Universal Declaration on Human Rights (UDHR) in its Preamble recognizes the inalienability of rights and provides for equal protection. Other human rights instruments both international and regional are couched in similar terms.[2]

The Constitution of Kenya 2010 takes cue and entrenches a robust and comprehensive Bill of Rights that encompasses both civil, political, economic, social, cultural and group rights. Due to this provision, the Constitution has been hailed as one of the most progressive Constitutions worldwide.  It recognizes and entrenches the Bill of Rights as an integral part of Kenya’s democratic state and the framework for all social, economic, and cultural policies.[3] Notably, this is a departure from the repealed Constitution which was aptly described as containing a Bill of exceptions rather than rights.[4]

The Constitution breathes life into the Bill of Rights by providing for an enabling mechanism and framework for the realization and enforcement of rights.[5]  The supreme law is self-effecting in the sense that it has laid down clear timelines on the actual realization of rights taking into account attendant factors such as resource endowment, the then prevailing political structure, socio-cultural factors inter alia. It envisages the realization of the Bill of Rights at 2 levels: immediate and progressive.

On enforcement, the Constitution establishes the High Court and vests it with original jurisdiction to hear and determine matters touching on the denial, violation, infringement of the fundamental rights and liberties.

 

2.0 The Health Sector in Kenya

The Health sector operates within a policy and legal framework that comprises of both national and international instruments. Some of the key instruments include the National Health Sector Strategic Plan 2013-2017, Vision 2030 Sector Plan for Health, the proposed Kenya Health Policy of 2014-2030.

Besides the Constitution, key statutes include the Public Health Act,[6]  the Pharmacy and Poisons Act,[7] the Medical Practitioners and Dentist Act,[8]  the Nurses Act[9] whilst at the international level, the Maputo Protocol,[10] the Abuja Declaration,[11] the International Health Regulations and the Sustainable Development Goals (SDGs) 2015 [12]are instructive.

The core mandate for the Sector as established by the government is to build a progressive, responsive and sustainable technologically-driven, evidence-based and client-centered health system for accelerated attainment of the highest standard of health to all Kenyans.[13] For instance, in the Vision 2030 under the Social Pillar, the government commits to improve the quality of life for all citizens through ensuring an equitable, affordable and quality healthcare of the highest standard.

Notably, this is in conformity with the Constitution which at Article 43 provides for the right to the highest attainable standard of health, which includes the right to reproductive health services. The standard of health envisaged include progressive access to curative, promotive, preventive and rehabilitative services.

For purposes of administration, the sector is generally clustered into 4 distinct categories. These are: curative health services; preventive & promotive health services, administration & planning and research & development.

2.1 The Post-2013 Period

One of the outstanding aspect of the Post-2013 era concerns the devolution of the health function to Counties. Under the new dispensation, the Constitution provides for and establishes a 2-tier system of governance and assigns distinct functions to each level of government.

In keeping in tandem with this new set up, the President issued an Executive Order No. 2 of 2013[14] which sought to distinguish and clearly spell out the functions of the national government. With reference to the Health sector, the Order provides that the core mandate of the Ministry of Health (MoH) at the national level shall be; the formulation of the health policy, the regulation of the sector, administration of national referral facilities, capacity building and offering technical assistance to the Counties.

On the other hand, the following functions were devolved to the County governments: the administration of county health facilities, pharmacies, ambulance services, promotion of primary healthcare, licensing & control of selling of food in public places inter alia.[15]

As a consequence, this led to realignments in the sector with respect to the healthcare system organization, administration, regulation, funding (at 2 levels) and the establishment of new structures[16] at the county level.

Under the devolution set up, the sector was organized along a 4-tier system comprising of community health services, primary healthcare, county referral and national referral health services.[17] In the recent times, the sector has made quite considerable strides in maternal healthcare, acquisition of specialized equipment, elevation and upscaling of several health facilities. However, the sector has also been bedeviled by a number of challenges that have only served to negate the gains made.

2.2 Programs Implemented

2.2.1 Free Maternal Services

For the first time ever, the government introduced the free maternal care programme in public health facilities in an effort to address the financial barriers preventing poor mothers from accessing skilled birth attendance. The free maternal policy sought to improve the uptake, the quality and access both-financial and geographical access- to delivery care services.

Notably, the free maternal care was preceded by the launch of the Beyond Zero campaign, a brainchild project of the Office of the First Lady in January 2014. The import of the initiative was two-fold: to improve the maternal and child health care in the country and two; accelerate the implementation of the national plan towards the elimination of new HIV infections among children. So far, the campaign now in its 3rd year, has benefitted all the 47 counties with the latest being Nairobi County.[18]

It is now on record that the number of mothers delivering in the public hospitals increased from 676, 107 to 749,987 in the 2012/13 financial year.[19] This led to a considerable reduction of maternal mortality rate from 10.1 per every 1000 in 2013 to 9.5 per 1000 live births in 2014. Reports indicate that the government disbursed Kshs. 3.2 billion for the free maternal healthcare services to over 301 hospitals and over 2,087 health centres and dispensaries countrywide.

2.2.2 Free Primary Health Care

The year 2012/13 also witnessed the abolition of all user charges/fees on primary health services. This was in relation to the governments’ endeavor to improve access to health care services and achieve universal healthcare. Reports indicate that the government disbursed Kshs. 674 million to a total of 2,481 dispensaries for the free primary health care programme.

Under this programme, the government rolled out a countrywide immunization campaign of all children under 5 years. Statistics show that the proportion of fully immunized under 1 year increased marginally from 82% in 2012/13 to 83% (2013/2014) albeit this was below the set target of 85%.

2.2.3 Budgetary allocation and expenditure

Prior to 2013, reports show that the approved budgetary allocation for the health sector rose from Kshs. 77 Billion in 2011/12 to Kshs. 94 Billion in 2012/13. It is worth noting that though there was a significant increase, this amount still fell below the recommended minimum of 15% of the total budget under the Abuja Declaration.[20]

In the 2013/14 fiscal year, the approved budgetary allocation reduced to Kshs. 45 Billion, almost by half the amount allocated in the previous year. The decrease was due to the transfer of health functions to the county governments in tandem with the Fourth Schedule of the Constitution. Notably, the year marked the first batch of disbursements from Treasury directly to counties to handle the devolved functions in the sector.

Notably, at the national level, the sector has witnessed a considerable increase in the past 3 years after the commencement of the devolved system. For instance, the overall health sector funding in the 2015/2016 budget increased from Sh47.4 billion in 2014/2015 budget to Sh59.2 billion. Out of this, Kshs 4.3 billion has been set aside for the free maternity healthcare programme while Sh4.5 billion has been set aside for leasing of medical equipment.

The national government has also given the National Aids Control Council a boost by increasing funding to Kshs. 19.7 billion for handling the HIV/AIDS, malaria and tuberculosis programmes. Allocations for the medical research programme has also registered an increase.

In terms of actual expenditure, spending at the national level also decreased from Kshs. 81 Billion in 2012/13 to Kshs. 31 billion in FY 2013/14. Granted, initially compensation (read salaries) to employees used to consume the largest share of the budget but upon devolution, this function was transferred to county governments. [21]

2.2.4 Acquisition of Specialized Equipment for treatment of Terminal Illness

In the recent times, cases of patients suffering from terminal illness such as cancer, hypertension, heart diseases and diabetes have been on the rise. This is attributable to rapid changes in lifestyles across households. Studies indicate that cancer ranks third among the main causes of death in Kenya. It accounts for up to 22,100 deaths annually. Of this number, more than 60% of those who succumb fall in the most productive years of their lives.

It is estimated that over 82 000 new cases of cancer are reported annually in Kenya. For instance, at the KNH cancer treatment centre, the number of out-patients attendance increased from 18,510 in 2012 to 22,130 in 2013.[22]

It is appalling to point out that there existed only 2 cancer treatment centres in the entire country. This caused delays in accessing actual treatment let alone containing the new incidences of cancer.

As a response, the government has rolled out a progamme of improving the healthcare infrastructure countrywide.  According to the Finance CS, Rotich, the government recently launched the Managed Equipment Services project which shall be implemented in partnership with all the 47 counties. Under the current budget, the government has earmarked Kshs 39.1 B for the acquisition of specialized and state of the art health equipment in health facilities in all counties.[23] It is projected that each county will have 2 fully equipped hospitals with appropriate equipment by end of the 2015/2016 fiscal year.

2.3 Challenges Faced

For quite some time, the public health sector in Kenya has grappled with a number of issues and challenges. The issues range from funding constraints, professional malpractices, poor administration, infrastructural capacity vis-a vis provision of services, critical shortage of health workforce,[24] the health insurance debate, recurrent diseases, emerging issues such as road carnage, enhanced terrorism threats among others.

Studies indicate that the disease burden is still high. The all-time top five causes of outpatient morbidity that have been identified include malaria, respiratory diseases, skin diseases, cholera/diarrhea and road carnage. These causes account for about 70 per cent of morbidity.[25] Although HIV and AIDS prevalence rate has come under control, infectious diseases such as TB and malaria have proven problematic due to increased antimicrobial resistance and activation of infectious agents in people whose immune system is weakened by AIDS.[26]

The recent heightened security concerns due to escalated acts of terrorism have both a direct and indirect bearing on the sector. The increased number of causalities and fatalities put a strain on the resources of existing facilities.

In its report in 2011,[27] TI-Kenya sums up the key challenges affecting the sector as: low numbers of health workers to population ratio, acute shortage of requisite medicines and other essential supplies in health facilities, low budgetary allocation, over-reliance on external funding which form a significant share to development budget.

On the regulatory framework, the report posits that the regulatory systems in the sector are uncoordinated, very fragmented, and lack harmony since they are spread under different pieces of legislation that relate to the sector. The regulatory bodies established are not effective in enforcing laws, guidelines and standards that govern the quality of healthcare services. As a result, cases of professional malpractices go unpunished.

 

3.0 The Health Crisis in Counties

The Constitution the under Fourth Schedule assigns distinct functions to each level of government. Under Part 2, County governments are mandated to handle the administration of county health facilities, ambulance services, promotion of primary healthcare, licensing & control of selling of food in public places among others.

The devolution of the health function took effect in the 2013/14 fiscal year. County governments now took charge of their respective functions as stipulated under the Constitution. Conversely, the role of the Ministry of Health considerably reduced as it was restricted to regulation, capacity building and offering technical assistance to counties.

However since then, the sector has witnessed a couple of issues some ‘inherited’ while most emerging under the new governance system. The issues range from constant strikes and threats by health workers, delayed disbursement of funds from Treasury, cumbersome procurement processes, endless squabbles, grandstanding between national and county governments, the rising shortage of doctors in public facilities, low quality healthcare services offered, increasing cases of professional malpractices among others.

The most outstanding aspect of all these issues regards the (mis) handling of the human resource function in the sector. It is the most contested between the health workers on one part and the county governments on the other hand. The media is awash with reports of closure of key health facilities in a number of counties due to strikes by health workers. So far counties such as Nakuru, Meru, Embu have experienced recurrent shutdown of public health facilities due to strikes. Others such as Mombasa, Kilifi, Nyeri, Makueni, Siaya, Nandi and Bungoma counties have similarly experienced intermittent paralysis of health services. In other counties, threats to strike and counter threats of dismissal by county health officials have become commonplace.

The grievances range from unpaid/delayed salaries, discrepancies in allowances, poor working terms and conditions, lack of harmonization of contracts, lack of career progression due to delayed promotions which used to be effected automatically at 3-year interval for the common cadre.[28] There have also been claims of irregular annual salary adjustments across counties.

3.1 The Effect

The net effect of this paralysis has been multifold. Innocent lives have been lost,[29] patients in need of emergency treatment have been turned away, others have camped at the facilities clinging on the hope that the strike will be called off at the earliest so that they can access services, some have gone back home and resorted to self-prescription or sourced for treatment from traditional healers. A few others have been forced to dig deeper into their pockets to access medical services from private facilities.

Under the county governments, the sector is slowly degenerating further into a ‘no-access’ to healthcare at all let alone the quality of services offered. It is disturbing to see patients in dire need of treatment lying desolate on waiting benches in county hospitals. It is equally moving to see frail patients, some carried on wheelbarrows because they could not afford ambulance charges being turned away. Notably, the shutdown has also negated the gains made through the free maternal programme since there are no medical personnel to attend to patients inspire of the free charges.

It begs the question; what is ailing the administration of the health function in counties? Was the devolution of the health function rushed? Granted, the health sector has had its fair share of challenges since time immemorial. However, what explains the current crisis which is seemingly becoming cyclic from county to county. One of the KMPDU Union official’s is quoted stating thus; ‘we have always had challenges but devolution only made them more apparent.’[30] The unions have petitioned the Council of Governors to address the numerous challenges so as to avert a total collapse but all has been in vain. 

It is on record that close to 2,000 doctors have quit public service in search of better terms in private practice and abroad.[31] This further compounds the already existing shortage of specialized healthcare providers in public facilities. Ultimately, access to specialized treatment will only become a preserve of those who can afford private services.

Again, it is has been reported that the continued strikes have forced patients to travel long distances to other counties to seek medical services.[32] This in itself has a twin-fold effect: one, it puts a strain on national referral facilities which ideally ought to operate and handle referral cases only. Two, it defeats the whole essence and spirit of devolution since one of the main objectives of the devolved system was to bring services closer to the people.

A closer scrutiny of county budgets reveal that though there has been considerable allocation to the health sector, the actual expenditure in most counties paints a grim picture. A big share of this amount goes to cover the recurrent expenditure. Incidentally, the absorption rate for the recurrent vote is higher as compared to the absorption rate under the development vote. In the Auditor General’s report,[33] it was revealed that quite a huge amount of funds spend was unaccounted for.

It is quite telling that despite the governor’s assertion of delayed disbursement of funds from treasury, the CS Health points out that there is Kshs. 31 Billion lying idle in the county revenue fund. This he attributes to the mismanagement of public funds at county level as revealed in the Auditor General’s report.

3.2 The Right to Health vs Labour Rights

Since time immemorial, the medical field has been regarded as a calling, meant for only those who have a calling to serve. At its elementary understanding, it is a service industry. An industry whose nature of service involve offering emergency and lifesaving services. It is a trite principle that saving life is the first and utmost priority. However, in the light of the recent spate of strikes in the health sector, does this principle still hold? Has the field become so commercialized that the current workforce can and have indeed sacrificed this age-old principle of saving lives at the altar of clamoring for labour rights?

Admittedly, the Constitution explicitly entrenches the right to fair remuneration, reasonable working conditions and labour practices.[34] Fair enough. Taking cue, it is worth noting that the employment law[35] provides for a catalogue of rights under the labour clause. These include; the right to go on strike, right to picket, stage sit-ins, demonstrate and more so, rights of employers.

The law further prescribes the mechanism and fora through which recourse may be pursued in the event of infringement of such rights. These include; the labour office, the Employment and Labour Relations Court[36] and through the ADR mechanism.

Now the question that arises; is going on strike the best/only way of exercising and/or pursuing such rights? What are its attendant effects on patients’ rights? Perhaps yes, a quick answer may be in the affirmative. However, this ought to be considered in the light of the limitation clause under Article 24. One; both rights are subject to limitation. Two; the limitation clause provides for the threshold of limiting rights. Article 24 provides thus:

A right or fundamental freedom shall not be limited except by law [….] and taking into account all relevant factors including:

  1. the nature of the right or fundamental freedom.
  2. ……
  3. …..
  4. the need to ensure that enjoyment of rights and freedoms by an individual does not prejudice the rights of others.
  5. the relation between the limitation and purpose and whether there are less restrictive means to achieve the purpose.

 

Suffice it to say, the Constitution puts safeguards against the enjoyment of a person’s right that may prejudice or negate the rights of others. It further guarantees that such enjoyment ought not to take away another person’s dignity. By and large, the law requires that as one exercise’s his/her rights, s/he ought to take into account the rights of others. Thus, it constitutes a violation if and where such enjoyment infringes upon another person’s rights.

The question that arises is such a violation actionable? Put differently, can a patient/person who has been unable to access the right to health care services due to an existing strike seek recourse? If so, against whom does such a claim lie? Notably, the Constitution stipulates that a person shall not be denied emergency medical treatment.[37] In cases where a patient who has been turned away from a health facility and subsequently, succumbs to the illness, can a claim lie against the hospital administration for indirect causation of the loss of life?[38]

In such crises, it is imperative to map out the actors involved and establish the extent of responsibility/liability. As is often the case in most labour relations, the dispute here involves the health workers as employees, unions [39] as workers representatives and county governments as the employer. The issue will be whether or not, there exist other better ways of handling their dispute(s) especially taking into account the very nature of services offered under the sector which include emergency services. As discussed earlier, some of the less drastic and appropriate measures include; referring such a dispute to ADR mechanism for amicable settlement or instituting a case in Industrial court.

4.0 Conclusion

It is instructive to note that against the backdrop of this paralysis, some counties have made relative progress in the health sector and have not experienced such crises. For instance, Machakos County is a case in point.

It is reported that the county government has refurbished Machakos County referral hospital and equipped the facility with assorted modern equipment in the maternity ward, x-ray machines and cancer screening machines.[40] Besides, the county seeks to enhance its human resource personnel by recruiting at least 283 medical staff to handle the increasing numbers of patients flocking the hospital for medical attention. At its inception, the county also acquired 70 new ambulances and distributed them per each location in the count to help boost emergency response services. Could it then be a case of bad leadership in the affected counties? The jury is out there.

Two, Kenya as a state party to international instruments is bound to honour and fulfill its commitments towards achieving universal healthcare. The primary duty lies with the State (read national government). It is in this light that the CS Health is record stating that the national government might consider reverting the health function to the national government. As expected, this suggestion has been met with outright resistance from the Council of Governors and other political leaders who view it as part of national government’s sinister motive to portray counties in bad light. Regrettably, this is at the expense of addressing the underlying issues in the sector.

In this regard, it has been proposed that the management of the human resource function in the sector be reverted to the national government and let counties manage infrastructure and supplies in the sector only.[41] The health crises require a sober objective approach from all concerned stakeholders for the citizenry need real-time solutions. Notably, it is in the same vein that there are proposals to establish the office of Director General to achieve a unified health system and quite importantly, coordinate the inter-governmental relations in the health sector. These proposals are contained in the Health Bill 2014.[42]

The Bill though instrumental in laying framework for harmonizing operations in the sector, has also been a casualty of intergovernmental conflict which has unfortunately delayed its legislative life.[43]

 

[1] Vienna Declaration and the Programme of Action UN GAOR 1993 which informs the official position of the UN.

[2] See the Preambles of the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic and Social Cultural Rights (ICESCR) and the African Charter on Human and People’s Rights (ACHPR).

[3] Article 19 (1) Constitution of Kenya 2010

[4] J Mutakha-Kangu ‘The Theory and Design of limitation of fundamental rights and freedoms’ (2008) 4/1 The Law Society of Kenya Journal 1.

[5] Article 22 as read together with Article 23 of the Constitution of Kenya 2010

[6] Cap 242 Laws of Kenya

[7] Cap 244 Laws of Kenya

[8] Cap 253 Laws of Kenya

[9] Cap 257 Laws of Kenya

[10] Protocol to the African Charter on Human and People’s Rights (ACHPR) which was adopted in Mozambique on

   July 11, 2003. Article 14 (2) (c) obliges states to take all appropriate measures to protect the reproductive rights of

   women by authorizing medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy

   endangers the mental and physical health of the mother or the life of the mother or the foetus.

[11] The Abuja Declaration of 2001 where Heads of State under the auspice of the African Union pledged to set a target 

   of allocating at least 15% of the annual budgets towards improving the health sector.

[12] Under the Sustainable Development Goals (SDGs) 2015, Goal No.3 provides for ensuring healthy lives and promoting the wellbeing for all at all ages.

[13] The Health Sector Medium-Term Expenditure Framework (MTEF) for the period 2015/16 -2017/18

[14] The Executive Order titled ‘Organization of the Government of the Republic of Kenya’ was issued by President    

     Kenyatta in May 2013.

[15] The Fourth Schedule, Constitution of Kenya 2010

[16] The Intergovernmental Relations Committee, County governments established the Council of Governors, County

     health ministries under leadership of CEC Health

[17] KPMG Report titled ‘Devolution of healthcare services: Lessons learnt from other countries.’

[18] http://www.beyondzero.or.ke/h-e-margaret-kenyatta-handover-47th-beyond-zero-mobile-clinic-nairobi-county

[19] Supra note 13

[20] Dr. Muga R. Overview of the Health system in Kenya.

[21] Supra note 13

[22] Supra note 13

[23] During the budget speech in Parliament in June 2015, the CS noted that the program will see each of the selected hospitals fitted with surgical and sterilization equipment, modern theatre equipment, laboratory, equipment, kidney dialysis equipment, ICU facilities, digital X-ray machines, ultrasound and imaging equipment.

[24] WHO report titled ‘Global Atlas of Health Work Force,’ August 2010

[25] Supra note 10

[26] The Kenya Aids Indicator Survey 2012 Report indicated that HIV prevalence reduced to 5.6% thus surpassing the

     set target of 6% in 2012/2013.

[27] The Kenya Health Sector Integrity Study Report launched in 2011 by TI-Kenya.

[28] https://citizentv.co.ke/news/crisis-in-meru-as-health-workers-strike-144179/. Common cadre refers to junior staff such as nurses, clinical officers, health workers, midwives etc.

[29] See a compilation of media reports on http://www.standardmedia.co.ke/health/article/2000217258/health-officials-tight-lipped-as-doctors-strike-drags-on; www.standardmedia.co.ke/thecounties; citizentv.co.ke/news/there-are-more-deaths-since-health-crisis.

[30] Article titled ‘Devolution causes a storm in the Health Sector’ in Kenya reported in the Business Daily of December 2014.

[31] Reported in the Business Daily on 28th August 2015. Statistics show that current doctor to patient ratio stands at 1:17,000 patients which falls short of the WHO recommended ratio of 1:1000.

[32] Case of current shutdown in Meru County has forced patients to seek services in the neighboring Isiolo County. 

[33] The Audit report on the Appropriation Accounts, other Public Accounts and the Accounts of Funds for the FY

     2012/2013.

[34] Article 41

[35] Employment Act of 2007, Labour Relations Act of 2007

[36] Established under Article 162 (2) of the Constitution and vested with jurisdiction on all labour disputes and other

    incidental matters.

[37] Article 43 (2) Constitution of Kenya 2010

[38] See an article titled ‘Kin buried as talks to end nurses’ strike hit deadlock in Nyeri County’ in the Standard on

     Monday 31st August 2015.

[39] Unions which have at the forefront of clamor for better terms include the Kenya Medical Practitioners, Pharmacists

    & Dentist Union (KMPDU), Kenya National Union of Nurses (KNUN)

[40] See www.monitor.co.ke where it is reported that due to the renovation of Machakos Level 5 hospital, the facility

     has started receiving patients form across counties.

[41] Supra note 26

[42] The Bill seeks to establish a unified health system through the office of the DG and further lay a framework for the coordination of the inter-governmental relations between the national government and county governments.

[43] See a compilation of media reports on http://www.standardmedia.co.ke/health/article/2000174666/governors-      unhappy-with-health-bill; county bosses oppose proposed Health law

 

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