No heroes of conscience, only victims.

The Ministry of Health, the principal institution of the national government in the health sector, is responsible for national referral health facilities (such as the Kenyatta National Hospital and the Moi Teaching and Referral Hospital) and health policy while county governments are responsible for County health services, including, in particular (a) county health facilities and pharmacies; (b) ambulance services; (c) promotion of primary health care; (d) licensing and control of undertakings that sell food to the public; (e) veterinary services (excluding regulation of the profession); (f) cemeteries, funeral parlours and crematoria; and (g) refuse removal, refuse dumps and solid waste disposal. Those are the broad provisions of the Fourth Schedule to the Constitution on the distribution of functions between the national government and county governments.

The functions of the national government are restrictive while those of the county governments are not exhaustive. Neither of these facts is sufficient to resolve the question of who is ultimately responsible for the state of the health sector. In August 2013, the Transition Authority published in the Kenya Gazette its interpretation of "county health services". These included,

county health facilities including county health facilities including county and sub-county hospitals, rural health centres, dispensaries, rural health training and demonstration centres. Rehabilitation and maintenance of county health facilities including maintenance of vehicles, medical equipment and machinery. Inspection and licensing of medical premises including reporting;

and

promotion of primary health care including health education, health promotion. community health services, reproductive health, child health, tuberculosis, HIV, malaria, school health program, environmental health, maternal health care, immunization, disease surveillance, outreach services, referral, nutrition, occupational safety, food and water quality and safety, disease screening, hygiene and sanitation, disease prevention and control, ophthalmic services, clinical services, rehabilitation, mental health, laboratory services, oral health, disaster preparedness and disease outbreak services. Planning and monitoring, health information system (data collection, collation, analysis and reporting), supportive supervision, patient and health facility records and inventories.

It is its interpretation of promotion of primary healthcare that is interesting because it entails providing community health services, maternal health care, immunization, outreach services, referral, ophthalmic services, clinical services, rehabilitation, mental health, laboratory services, and oral health [services]. These are services that can only be provided by doctors. If these are services provided by the county government, then these doctors are employees of the county government, that is, county public officers. Their terms of service, whether they are members of a national union or not, are the responsibility of the respective county governments. Unless they are doctors employed in national referral health facilities or for the purposes of developing a health policy, the national government has nothing to do with their terms of service.

The Kenya Medical Practitioners', Pharmacists' and Dentists' Union attempted to prevent the devolution of health services to county governments in 2013. Their argument that devolution of health services would be prejudicial or public interest was rejected by a three-judge High Court bench of judges Weldon Korir, Mumbi Ngugi and George Odunga. The doctors' union was determined to prevent the devolution of health services so much so that while it was suing the Transition Authority to get it to reverse its decision to transfer health services to counties, it was also negotiating a comprehensive bargaining agreement with the national government.

Mutuma Mathiu reminds us of the doctors' resistance to devolution and a possible motivation for that resistance:

In the past, doctors would be posted to some far-flung place. Many would rarely leave the city but would continue earning a salary. They would visit their stations in the manner of consultants while in actual fact they were on the staff.

But you can’t do that if there is a governor and local officials watching over what you are doing. This is partly what the doctors are resisting, along with the difficulties of working for corrupt and inept county governments. Daily Nation, 17th February 2017

The union resisted the devolution of health from the beginning. Few of them wanted to have the county government as their employer; after all, in 2013, none of the county governments had covered itself in glory regarding priorities, such as the improvement of health services. Things have not changed four and a half years later. Going by the precedent set by the High Court in 2013, the devolution of health services will not be  reversed by the courts; that is a political decision and neither the national government nor county governments seem interested in such a reversal.

I am sorry, I don't think the doctors are the heroes they are painted to be nor the national government the monstrous villain everyone says it is. The national government is not responsible for the terms of service of the vast majority of doctors; that responsibility falls on county governments. Therefore, the negotiations must be between a representative of all county governments, a responsibility that has been undertaken by the Council of County Governors, and the doctors' union. The Ministry of Health will do the same with the health workers under its jurisdiction. The labour ministry can only help in mediation but with the establishment of county public service boards, the labour ministry has no role to play except in the establishment of labour standards, including labour standards in the health sector.

I fail to see how the national government could have "implemented the CBA" signed in December 2013. I fail to understand why the CBA was signed in the first place. But I can understand why it was not registered with the labour court: the court would have had to point out the anomaly of the national government, which was no longer responsible for county health services, entering into an agreement with doctors it no longer employed regarding terms of service that it had no authority to entertain at all. The only thing that the national government can do is come up with a health policy; its implementation, however, must be done jointly with other stakeholders, especially county governments and doctors.

In the heat and noise of the #CBA7 and #LipaKamaTender hashtag campaigns, this important point has been lost: the proper negotiating entities with the doctors are the county governments, through the Council of County Governors, not the Ministry of Health or the Ministry of Labour. That is the constitutional bargain that Kenyans made. The insidious attempts by both the Ministry of Health and the doctors' union to undermine the devolution of health services, and the gross incompetence of the county governments in policy and financial management, has led to the almost complete shutdown of all health services in Kenya. There are no heroes of conscience in this dispute, only victims.