"The functions and powers of the county are...county health services, including, in particular county health facilities and pharmacies...promotion of primary health care..." Part 2 of the Fourth Schedule, Constitution of Kenya
Sections 23 and 28 of Part 1 of the Fourth Schedule list the functions and powers of the national government in relation to health as "national referral health facilities" and "health policy".
So far as I can tell, the health sector is not mentioned anywhere else in the Constitution of Kenya, except tangentially in reference to the right to life (Art. 26), the prohibition of discrimination (Art. 27), environmental rights (Art. 42), economic and social rights (Art. 43), consumer rights (Art. 46), the rights of children (Art. 53), affirmative action for minorities and marginalised groups (Art. 56), the regulation of land use or property (Art. 66), a conflict of laws between national legislation and county legislation (Art. 191), and in relation to the Equalisation Fund (Art. 204). But it is the Fourth Schedule that is the sum and substance of the relationship between the national government and counties in relation to the health sector.
Any public policy made in relation to the health sector must account for these constitutional provisions, especially the delineation of functions and powers in the Fourth Schedule: national government has power over national referral health facilities and health policy, and counties have power over and perform functions related to county health services, including, in particular county health facilities and pharmacies and promotion of primary health care.
The promulgation of the Constitution should have triggered a complete reform of the management of the health sector in accordance with the provisions of the Fifth Schedule which was the timetable for the enactment of primary legislation to give force to the provisions of the Constitution. The deadline for legislation for the management of the health sector was five years, 27th August 2015. This deadline would have been met if the policy had been agreed upon after 27th August 2010. The legislation is yet to be enacted, though the Health Bill is wending its way through the Byzantine bowels of Parliament, and the health policy is yet to be settled, especially in regards to the place of the national government in the management of the health sector.
There is no health sector without doctors, nurses, dentists or allied healthcare workers such as clinicians, anaesthisologists, radiologists, pharmacists, veterinary doctors, pharmaceutical manufacturers, medical devices manufacturers, medial training institutions and health sector regulatory bodies. The health sector cannot function effectively without a coherent policy or a coherent public finance infrastructure.
The demands by doctors and other healthcare workers are just part of the demands of the entire healthcare system. We have, so far, dealt with these demands in a piecemeal fashion, robbing Peter to pay Paul, engendering confusion, frustration and unrest. The political gamesmanship between the national and county governments has made what was already a complex and complicated system even more dysfunctional. The costs have been high in both national treasure and lives. The solutions will not be easy or simple, but they must all take into account that the public health system in place before 2010 is no longer constitutionally tenable.
Kenya is notorious for establishing expensive talking shops that more often than not do not achieve much, but nothing can be done if decisions are made and implemented unilaterally. What we need for the health sector is the appointment of a joint commission that brings together public health and finance health professionals from both the national and county governments with a view to drafting a comprehensive health policy for adoption and implementation. It should have a short mandate - not longer than one year - and its recommendations must be binding. It must re-examine all known assumptions about the health sector including the constitutional wisdom of devolving healthcare. Nothing should be off the table. It is the only sensible start that I can think of.