An unholy alliance between the doctors’ union and the Jubilee government in 2013 has returned to haunt the health sector. The State's contentious Collective Bargaining Agreement (CBA) with the Kenya Medical Practitioners and Dentists Union (KMPDU) was fatally flawed from the start.
Aspects of the CBA are also shrouded in mystery. It is not clear why it was signed by an officer who had already left government. If the CBA was not signed out of mischief, then it would seem to have been a factor of an overzealous novice government, eager to ingratiate itself with an agitated medical fraternity and with the public, too.
From a reasoned vantage point, the flawed agreement could be the product of miscalculation by a national government keen on clawing back on devolution, by refusing to let go of some devolved functions and the funds that should have gone with them.
The doctors appear to have been a handy tool in the ploy. For their part, the medics were scornful of devolved government. They gave the national government the perfect chance to use them in the fight against devolution, with the CBA only as a ruse.
All the way, the doctors’ union has naively ignored the Council of Governors (CoG) in its search for a better health sector.
In 2012 and 2013 the medics were so keen on the agenda of returning health to the national government that they profiled the CoG as an adversary to be ignored, if not to be fought. For a while, therefore, they irritably pushed this agenda, while also rubbishing county government and getting into a moonshine treaty. They made for a good tool in the national government versus CoG confrontations.
The CBA was signed on June 27, 2013. The Jubilee administration was only a few weeks old in office, the President having been only sworn in on April 9, 2013. Even after this swearing in, President Uhuru Kenyatta took almost two months to fully constitute his new government. He completed the appointment of the Cabinet on 23 April and unveiled principal secretaries on June 7, 2013.
It was a little confounding that a fledgling government had moved so swiftly to wrap up a deal with medics over matters that date back to the 1980s. It took the new government only two weeks to clinch and sign the deal on a 32-year-old crisis. For the present impasse between the government and the doctors goes back to April 1981, when the first confrontation between the two parties began. The matters that were raised then continue to dog the nation.
Fatal flaws
There are glaring fatal flaws in the deal that has since returned to torment the national government, and all of Kenya. First the government had no business getting entangled in this matter. The devolved constitution had clearly given the health function to the county governments, except for policy and national referral hospitals.There are still only two national referral hospitals in Kenya – Moi Teaching and Referral Hospital in Eldoret and the Coast General Hospital. Kenyatta National Hospital is in a category of its own, falling as it does under a separate arrangement as a parastatal. The national government shot itself in the foot by trapping itself in a matter that should have had the CoG at the centre. Instead the CoG was conspicuously absent from the negotiation rooms and from the final accord.
Rather than identify and free the devolved functions, the national government quickly generated suspicion and hostility against the CoG. At the heart of the matter was the annual health budget of about Sh40 billion for the Ministry of Health. There were similar budgets in other ministries. The health amount has since risen steadily over the years, to reach Sh60 billion. This is despite the fact that the intended functions have been devolved. In 2014/15 the Ministry of Health received Sh47.4 billion and Sh59 billion in 2015/16.
Last year, the Cabinet Secretary for Health, Henry Rotich, said that Sh29.090 billion would go to recurrent expenditure, while Sh31.179 billion would be spent on development. This is a curious arrangement. While the Afya House budget lines have remained the same and the amount swollen each year, the functions are no longer with them. Both the recurrent and development functions reside with the county governments.
The retention of health funds at Afya House could explain why the National Government entered into a hasty agreement. There was a chubby budget to control.
The ministry has since controversially leased medical equipment and imposed it upon the counties. It has also bought mobile clinics that are still idling near the port of Mombasa.
It also turns out that the leased equipment was handled through a company with links to powerful offices in the National Government. Issued under the government’s affirmative action policy for women and youth, this procurement was not open to competitive bidding.
The chickens of a precipitate CBA are now coming home to roost on a defective agreement that should never have been. Even a cursory perusal reveals shocking details. Mr Mark K Bor signed the CBA on June 27, 2013 in his capacity as Permanent Secretary in the Ministry of Public Health and Sanitation. It is instructive that there was no such ministry at the time. Nor was Bor a PS on the substantive date.
Under the Kibaki/Odinga Nusu Mkate Government, the public health and sanitation portfolio was one of the two health ministries.
The other one was the Ministry of Medical Services. An agreement of this kind would have fallen more squarely under the Medical Services Ministry. How it ever ended up being signed by a non-existent Public Health and Sanitation Ministry is a mystery.
But even more confounding is that the two ministries had ceased to exist by June 27, 2013 when Bor signed as the PS in charge of one.
At that time there was an effective brand new principal secretary – under the new constitutional dispensation and nomenclature – in the person of Mr Fred Sigor. And the ministry was simply the Ministry of Health and not the Ministry of Public Health and Sanitation as is reflected in the CBA. How did Sigor fit in?
Other anomalies assume that the Ministry of Health is the doctors’ de facto employer, which is misleading.They include things like deduction of union dues that the ministry is expected to pass on to the union. There is also training, promotion and leave, all of which assume that the ministry and not the individual county governments will be in charge. Indeed, the section on remuneration gives a list of allowances that will be paid to “doctors employed by the ministry.
These grey areas ought to have been streamlined by the defunct Transitional Authority, the Ministry of Health and the CoG.
At the crucial time, however, both the doctors’ union and the national government behaved in a manner suggestive of joint hostility against devolved government. If the doctors were asking to be restored to the national government, the national government seemed to be deliberately stoking the fires of discord between the doctors and the county governments. Doctors’ salaries seemed to be deliberately delayed while the rest of their welfare was thrown into confusion. Their CBA did not even recognise that devolution was a reality and that the new authority in town was the county government.
Would the culpable myopia that informed the CBA in 2013 seem to be still at work, four years later? If the current phase of agitation began in 2012 before devolved government, devolution is now a reality. Yet most of the time the Ministry of Health has sat with the doctors while ignoring the CoG.
Even if they were to reach an agreement tomorrow, the two would constitutionally still need the CoG to implement it. It is not clear, for example, whether the ministry planned to provide conditional grants to the counties to cater for the proposed 40 per cent pay rise, or from which fund they purposed to draw whatever amount they might agree on.
Pulsating need for sobriety remains. Primarily, the national government may need to let go of health as a devolved function, complete with the funds that go with it.
Informed feelings
There are informed feelings that if the devolved funds that the ministry has cringingly clutched on were allowed to go, it would be a lot easier for the CoG to reach a lasting understanding with the medics. The same authorities also suggest that it would be important for the medics to come out of denial and accept that devolved government is here to stay.
Rather than pursue a hopelessly flawed CBA with the national government, it might help their course a great deal for them to push for the health funds to follow the health functions in the counties. That way, they are likely to negotiate for better perquisites for themselves, as well as for a robust working environment.