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New Kenyan Health Law Review

February 2013 KMPDU Articles, By Elesban Kihuba;  PROPOSED HEALTH LAW CANNOT PASS THE PATH DEPENDENCE TEST.

A health system provides the means through which health care services are planned and delivered. They are socially constructed and their basic arrangements are a product of historical negotiations with the environment. A complete conception of its guiding ideology is captured in the social and legal legislation that has been developed over time. Key among these is the constitution which was promulgated in 2010. The document envisages a health system whose management is devolved to the county level. County governments will own and manage county health facilities, pharmacies and ambulance services. They will be responsible for providing the resources required for health services provision. This means that the responsibility and the centre of power will move to the 47 independent county health management systems. National health system on the other hand is charged with provision of tertiary services, policy formulation and providing technical assistance to counties. This background arrangement defines the path dependence in our sector.

The enactment of a new health law to align the health sector with the regulae iuris is at an advanced stage. It recommends creation of numerous state agencies which should report to an autonomous hegemonic corporation. This has already elicited condemnation from commissions responsible for protecting public interests during this transition period. Should the national health system expand its administrative structure to cover a function that it’s no longer directly involved in? Is the proposed administrative bureaucratic structure consistent with the expectations for a Ministry offering professional health services? My intuitive idea is this-the move to expand the technostructure at the ministry of health is wrong because it’s not consistent with devolution as contained in the constitution and the policy action in its current state is not crafted in a way that can maximize our long-term expectation on our health status.

The proposed health law provides for formation of an independent central health service authority with both executive and advisory functions while at the same time it declares that the Ministry management structure will be based on functional directorates headed by the Director General. This introduces two unnecessary centers of powers and two parallel line of command (two hierarchy) all competing to remain relevant at the expense of the tax payers. It can also be read as a motive to introduce an autocratic policy process which goes against the goal of establishing an open process where the bureaucrats should play an impartial role in the policy process. There is limited chance that a single authority can acquire adequate resources-namely time, money and adequate technical capacity to enable it take a leading role on all policy issues we will face in the future. The bill also fails to recognize the legitimacy and independence of the County government on matters of health and public health administration. It goes without saying that if counties are responsible for resource production and economic support in the health sector, then they can’t be a pawn in this game. The new normal is that Social policies (health services, sanitation, water, waste management, animal health) formulation is the reserve of the counties. Judging from the number of times and the tone by which the documents requires the Secretary of Health to consult the health service authority before making a decision,  one can  easily deduce that this is a calculated move to undermine the Secretary of Health office and more importantly the Director General of Health office. An autonomous agency served with the responsibility to support management activities in the mainstream management structure has no authority to insist that their advice be taken as they act in the name of the ultimate authority at the Ministry. The overall bureaucratic environment dictates that the proposed agency cannot be held accountable for coordination of health services/management activities in the sector because they do not have authority over it. The health authority can only exercise expert power which can only be tolerated in its proper place.

Based on the changes that have taken place in our governance fabric, the target should be to formulate a law that will create a democratic bureaucratic structure and promote an open policy process. It’s time to move away from a closed policy community dominated by one or two donor agencies to a platform where all bonafide stakeholders have a say. Directorates should be empowered to develop policy instruments with a medium and a long term range which can provide a core coordination mechanism. With good policies, we will not need a corporation to control and micromanage counties. Counties should be empowered to determine their priority health problems and determine the means of overcoming it in a manner that the unity of purpose prevails. Gagging the counties is likely to be counterproductive. I strongly believe the health sector is now of age and we should relax on central regulation and start appreciating external regulation and control in the form of consumerism and professionalism.

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