Experts: Reverting health function to National government will negate importance of devolution

By John Kioria

Legal experts opine that the national and county governments are to blame for the current health crisis that has rocked the country for almost two months and a half.

Constitutional expert Ekuru Aukot and Lawyer Salma Ochieng say the two levels of government have only engaged in a supremacy battle since the devolving of the function the results being the doctors strike that is on its 67th day.

Health care is a constitutional right but it has been denied to millions of Kenyans following the two months and a half stalemate.

The twists and turns have resulted to yet another platform for a supremacy contest between the national government and the county governments over who takes the responsibility to implement a controversial Collective Bargaining Treatment signed in 2013.

And as the hardline positions continue to be the order of the day, legal experts Ekuru Aukot and Salma Ochieng are of the opinion that it is a breakdown in leadership at both levels of government that has resulted to the crisis.

A plain reading of article 6 paints clear roles of both levels of government.

Sub article 2 says the governments at the National and county levels are distinct and in interdependent and shall conduct their mutual relations on the basis of consultation and cooperation.

Sub article 3 says that a national state organ shall ensure reasonable access to its services in all parts of the republic, so far as it is appropriate to do so having regard to the nature of the service.

Article 187 1 says 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; the function or power would be more effectively performed or exercised by the receiving government; and the transfer of the function or power is not prohibited by the legislation under which it is to be performed or exercised.

Sub article 2 goes ahead to state if a function or power is transferred from a government at one level to a government at the other level; 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 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.

According to Dr. Aukot the current crisis is further occasioned by the failure by the national government to release all resources meant for the health function while county executives were also plundering the little the counties get.

While the Governors have largely boycotted the talks initiated by the national government to end the stalemate, the experts argue that policy formulation and resolving labour disputes is a preserve of the national government but not in exclusion of the council of governors.

Both experts argue that it is almost becoming norm for any labour dispute to end up in court which might result to an abuse bearing in mind that Doctors union officials have missed going to jail by a whisker almost three times in the current crisis.

The two however caution that any attempt to introduce debate to revert the health function to the national government is an affront to the spirit of the constitution and the concept of devolution.