New office at Afya House sparks storm

By PAUL WAFULA pwafula@standardmedia.co.ke and GATONYE GATHURA ggathura@standardmedia.co.ke

Nairobi, Kenya: Health Cabinet Secretary James Macharia has been accused by medics of making unilateral and unconstitutional appointments in the ministry.

The medics cited the appointment the director general, which they say was done against the spirit of the Constitution.

Leaders of 21 health workers’ groups argue that the Constitution is clear about how senior positions should be filled – competitively.

This makes Mr Macharia the second Cabinet Secretary under the Jubilee administration to come under fire over appointments. Lands Cabinet Secretary Charity Ngilu was recently forced to make a quick about turn on the appointment of a director general in her ministry.

Last week Ms Ngilu was censured by Parliament over unconstitutional, illegal and unprocedural creation of offices and arbitrary appointments, promotions and transfers of staff in the ministry.

It is emerging that Macharia could also have made sweeping changes at the Health Ministry, among them the creation of five new directorates and for the first time the office of Director General of Health, a post currently being held by Dr Francis Kimani in acting capacity. The appointments were done three weeks after the Attorney General’s office raised questions on whether the office was in line with the “best practices world over”.

Various directorates

He created the Directorate of Administrative Services to be headed by Francis Musyimi; Directorate of Health Standard, Quality Assurance and Regulations under Dr Pacifica Onyancha; Directorate of Curative and Rehabilitative Services under Dr John Odondi. Others are Directorate of Policy Planning and Healthcare Financing under Dr John Masaabi with Dr William Maina heading the Directorate of Preventive and Promotive Services.

National Nurses Association chairman Jeremiah Maina says these new posts, especially that of the Director General of Health are not supported by any legal structures since it has only been suggested in a Health Bill, which is yet to be enacted. The Bill, which proposes the creation of the post of the director general and other directorates under the Ministry of Health, is yet to be presented in Parliament for debate.

“The directorates shall be formed on the recommendation of the Health Council established under this Act,” says a draft of the proposed law. The proposed law seeks to create a powerful director general of health in charge of the directorates. In an interview with The Standard on Sunday, Kenya Medical Practitioners, Pharmacists & Dentist Union (KMPDU) chairman Victor Ngani faulted the rush to create the new post and appointments.

According to the Health Bill the director general of health shall be the technical advisor on all matters relating to health within the sector.

The director general will also be the technical advisor of the Cabinet Secretary of Health and supervise the directorates within the national government department of health.

A letter seen by The Standard on Sunday from the office of the Attorney General to the Principal Secretary of Health Fred Segor, sought more information on the position of director general to enable it “tie the loose ends in the Bill”.

“Having closely examined and scrutinised the Health Bill, kindly clarify … the status of the office of the Director General vis-à-vis that of the Director of Medical Services in view of the East Africa Community and best practice world over,” the letter dated September 5, 2013, reads in part.

It was signed by Mr James Mwenda, the senior principal parliamentary counsel for the AG and copied to the Director of Medical Services.

The AG is also seeking clarification from the Health Ministry on the linkage between the health services commission, the Kenya oversight authority, health products and technologies, Kenya national blood transfusion service and health insurance services. The government’s legal advisor also wanted to know how they would be sustained.

“Will this be a further charge to the Exchequer? Will the roles of these bodies be duplication? Would separate legal instruments not suffice if indeed these bodies are necessary?” the AG asks.

The Bill is yet to resolve the raging conflict between the Kenya Health Professions Oversight Authority and other statutory bodies.

Another contentious part of the Bill is a proposal that emergency treatment in all private facilities be paid for by the taxpayer. “The Bill introduces new measures on human blood, blood products, tissue and other organs. This area requires a further re-look in view of the eminent challenges in line with the aspects outlined that are not in tandem with Kenyan jurisprudence,” AG’s letter concludes.

New departments

Devolution experts argue that since the health sector is yet to have structures put in law, the Cabinet Secretary in the sector may have some headroom to create some new departments, a luxury his counterpart in Lands may not have.

“I don’t think it is necessary at this point given that we are still at that stage of deciding who does what and such an appointment may be reversed after the law is put in place,” Mr Abraham Rugo, a devolution expert at the Institute of Economic Affairs said. Rugo said such an appointment may end up to haunt the office holder should the position be scrapped before the new law is passed, a scenario that may see them either fired or redeployed. “My concern is why create new departments at this time when we know that the size of the central government should be shrinking. But nothing stops either of the governments to create any institution or department under the current law,” Rugo said. 

This comes at a time when the health sector is staring at a crisis following the standoff between employees of the sector and the two governments over the ongoing devolution process.

“Everyone is managing health and this lack of a centralised chain of command has caused a lot of confusion. We have been tossed from the Commission tasked with implementing of the Constitution to the ministry, to the Treasury and the Transition Authority when we need some of these issues addressed,” KMPDU secretary general Sultan Matendechere said. Health workers have vowed to reject the plan to devolve health services.

Medics also want creation of the Health Service Commission, that would be in charge of human resources in the health sector.

“This confusion is what we want government to fix or we go ahead with our strike. We want first the law to be put in place that creates a Health Service Commission. This way, to get to health workers, then any of the governments or stakeholders will have to pass through one place,” Dr Matendechere said.