Monday, November 28, 2011

The key steps in a review of health legislation

SN 27 November  2011

As the ministries of Health grapple with the enormous task of reviewing all health legislation in line with constitutional requirements, certain steps are necessary to ensure the product of this exercise meets the stated objectives.

The first step in this process should involve a review of all existing legislation on health, as well as all the enabling executive orders that have had a bearing on health in Kenya. This audit will reveal the true scope of the problem, including the existence of some archaic health legislation dating back to the colonial days, side-by-side with modern laws and regulations.

In my view, input from legal experts will be required for this process to be done successfully. Doctors and other Afya House technocrats may not be able to conduct the legislative audit efficiently simply because they are not trained for it.

The second step in this process will be to identify the constitutional provisions relating to health.These include provisions for the right to health, emergency care, clean environment, dignity and so on and so forth. This will provide Afya House with the scope of the problem as far as harmonising existing legislation with the Constitution is concerned.

Such a review may reveal that some of the health laws need to be repealed, and new Acts of Parliament will have to be drafted in order to address issues that had not been addressed under the previous constitutional regime.

In my opinion, once these reviews have been done, it will then be necessary for the government to develop a national health policy that is in line with the constitution, in order to provide a framework for the enactment of the necessary legislation. Given that a policy framework already exists in the health sector, tweaking it to redirect it towards constitutional requirements should not be difficult.

Once the policy has been reviewed and redirected, a few laws will have to be written to implement the policy directives and ensure full compliance with the constitution. In my view, such laws must include provision for a health services commission to coordinate the deployment and remuneration of all health workers in the public service.

Although it had earlier been suggested that this commission be provided for in the constitution, this commission was ignored probably due to the docility of the health workforce in this country. The situation may, however, be remedied by an Act of Parliament.

The second provision that the proposed health law must include is a health professionals’ council which will help craft the definitions of the various health professionals. It will provide benchmarks to be fulfilled for one to be considered a medical doctor, nurse, clinical officer, nutritionist or physiotherapist, among other health professionals. Apart from regulating ethical practice in the health professions, the council will also help clarify constitutional terms such as health, abortion and emergency care.

Finally, we must ensure that the process of making the proposed health law is fully participatory, and the health ministries must initiate a consultative process both within and without the health sector. They should also ensure that the concerns of health workers through their professional associations and unions are addressed in the new law.

These are the minimum requirements that will ensure that the health of Kenyans is in safe hands under the new dispensation.

Dr Lukoye Atwoli is the secretary, Kenya Psychiatric Association, and lecturer at Moi University’s School of Medicine

Sunday, November 20, 2011

Government should not use war as a stock excuse


Sunday Nation 20 November 2011

Lecturers went on strike on November 9 after a two-year wait for negotiations with government bore no fruit. It is claimed that a circular from the head of the civil service advised all public service employers that there should be no negotiations until the Salaries and Remuneration Commission was in place.

Even after that purported circular was released, teachers threatened industrial unrest, and their demands were met with alacrity. Money was also allocated for police and military salaries and allowances after some low-level grumbling and veiled threats to national security. More recently, money has been found to address problems at the two national referral hospitals, after work stoppages at both institutions threatened to get out of hand.

The message that is coming out of these events is that it is pointless to engage the government in civilised conversation when it comes to improvement in terms and conditions of work in the public service. Apparently the only language top government officials understand is of unrest and strikes.

Indeed, preparations are under way for a nationwide strike by doctors and other health workers in the public service over poor pay, unhealthy working conditions and uncertain career progression. The government is aware of the preparations, but has kept mum, waiting for the crisis to explode so it takes action.

Lately, senior government officials have taken to asking workers to be patriotic, suggesting that all government resources have been diverted to the war in Somalia against the Al-Shabaab. The PM practically accused striking lecturers of being unpatriotic by creating a second “war front” at a time when the country is at war.

This accusation has been repeated by the minister for Higher Education and her assistant, both former lecturers, who would be expected to be more sensitive to their colleagues’ demands. It seems, therefore, that the government has decided the stock response to any salary demands will feature the war in Somalia and appeals for patriotism. This implies the war was impulsive and unplanned, and that necessary resources were not set aside for the war in order to allow the rest of the economy to function normally.

If this is true, then it is clear that we are being led by government devoid of any sense of direction, and we are in real trouble. A more plausible explanation is that the war is being used to hoodwink Kenyans about the true cause of financial haemorrhage in this country.

Kenya experiences economic difficulties towards an election year, as politicians engage in schemes to raise campaign funds. It is not inconceivable that massive looting is going on on both sides of the grand coalition, and that we shall only be able to appreciate the scale of the looting after the General Election next year.

The PM repeatedly reminds us that it is possible to chew gum and climb stairs at the same time. Is he now suggesting that this is no longer the case?

Dr Lukoye Atwoli is secretary, Kenya Psychiatric Association and lecturer at Moi University’s School of Medicine 

Sunday, November 13, 2011

Finally, tribe is king in the Kenyan public service

By Lukoye Atwoli
Sunday Nation 13 November 2011

Last Wednesday, a parliamentary committee made a decision that should have wide-ranging repercussions across the governance structures in this country. The parliamentary Labour and Social Welfare Committee reportedly rejected the nomination of Ms Winfred Lichuma to be the chair of the National Gender and Equality Commission, and questioned the grounds on which the selection panel overlooked three others in making their choice.

Apparently, the panel rejected the top three contenders on the grounds that their nomination would skew the ethnic composition of the commission and other government organs, and run afoul of the constitutional requirement for ethnic balance in state institutions.

A point of concern was that their ethnicity was determined by others, and none of them was asked about their tribe during the interviews. For instance, it was assumed that Prof Maria Nzomo was Kikuyu despite having a mother she considers to be Kikuyu and a father she considers to be Kamba. To further muddy the waters, she is married to a person considered to be Luhya.

Another candidate, Dr Jane Dwasi, was rejected allegedly because despite having Luhya parentage, her father had moved to “Luoland” and she now “prefers to be identified as a Luo”. The selection panel allegedly decided not to nominate her on the grounds that another of her “tribesmates” had already been appointed to a senior post in another constitutional commission.

Serious concerns

Two serious concerns emerge in this case. The first regards the injustice of allowing others to define an individual’s ethnicity using some vague criteria.

The examples of Prof Nzomo and Dr Dwasi demonstrate the difficulty inherent in using a vague social attribute to make decisions that have a bearing on people’s lives and the opportunities available to them. For no fault of their own, and in spite of their obvious qualifications, they were stood over because it was thought that their brilliance was subordinate to the tribe they were boxed into by some government functionary which, in any case, turned out to be inaccurate.

Ethnicity is a very complicated social construct, and must be approached with great care. For instance, a European student of mine was scandalised to learn that children whose parents hailed from different ethnic communities were considered to belong to their father’s tribe. She felt that the only thing the children shared with their father’s tribe was the language. Their personalities and values were so heavily influenced by their mother that they should, for all intents and purposes, be considered to share her ethnicity.

The second concern is the relevance of tribe in national decision-making. In a functioning meritocracy, people take credit for their own success, and accept responsibility for their failures without excuses. In Kenya, it seems we are moving towards a system where the fortunes of our tribesmates will determine how far we go in securing public office.

If one intends to apply for a senior post in government, they must make sure that none of their tribesmates apply for the same job. They must further ensure that they find a way of flaunting their ethnicity in a way that is obvious to the interviewers, so that qualifications become secondary to that ethnic expression.

Tribe has finally become the key qualification for positions in the public service.

Dr Lukoye Atwoli is secretary, Kenya Psychiatric Association and lecturer, Moi University’s school of medicine

Sunday, November 6, 2011

Elections can be held any time during 2012

Sunday Nation 06 November 2011

Last week, the chair of the Interim Independent Electoral Commission, while being interviewed for the same post in the successor electoral body, asserted that “it will be impossible to hold elections in August 2012”. He went ahead and recycled the same arguments that have been presented in the past by the government, including the budgetary cycle, time for preparations, voter education and others in a similar vein.

As a layperson, I must admit that my reading of the law is usually very plain, and devoid of the refined nuances that I suspect are imparted in law schools all over the world. However, my understanding of the law is that everyone must strive to know it, and try to understand the implications. Indeed, the lawyers will be the first ones to tell us that ignorance of the law is not a legitimate defence.

It is in this spirit that I would politely beg to differ with the IIEC chairman. Making an assertion such as the one he made during the interview is dangerous, and indicates that Kenya is already facing a constitutional crisis.

Under the constitution and the laws of the land, it is a basic assumption that elections can be held at any time whenever necessitated by happenings in the political arena. Indeed, the IIEC has successfully carried out several by-elections and a referendum, without telling us that it is impossible to fulfil its mandate.

Ten months

Coming out 10 months before the scheduled date of elections to tell us that it is “impossible” to plan and organise elections on time is an admission of serious lack of foresight, and brings into question the competence of the chairman and his team.

Since it is clear that the IIEC and the government have identified possible bottlenecks that will make it difficult to hold a General Election in August next year, why have they not set in motion strategies to eliminate the constraints?

Why did the IIEC not include budget estimates for the next elections in the last budget? Why have they not begun voter education both locally and in the diaspora? Why have they not begun recruiting the manpower needed for elections in August, and identifying suppliers who may be approached for various services related to the elections?

If the IIEC and government have not started addressing these issues with the seriousness they deserve, one can only read a conspiracy to make it “impossible” to hold elections when they are due in order to facilitate some obscure agenda.

If, on the other hand, steps are already being taken to ensure that these problems are addressed, why is the IIEC chair supporting claims that elections cannot be held on schedule next year?

Further insight may be gained by reading Part 3 of the Sixth Schedule of the Constitution. Section 9(2) of this schedule clearly anticipates the possibility that the coalition established under the National Accord may be dissolved even before 2012, resulting in a General Election as provided for under the Constitution.

Reading this section, and of course keeping in mind that nature has its own designs on our lives, what would the IIEC (or its successor) do in case vacancies arise in all elective posts in the republic before August next year? Will they just wring their hands and proclaim their impotence?

I don’t think so.

Dr Lukoye Atwoli is secretary, Kenya Psychiatric Association and Lecturer, Moi University School of Medicine

Thursday, November 3, 2011

Government responsible for deaths at Moi hospital

Sorry for the delayed posting of last Sunday's article. Here goes!


Sunday Nation 30 October 2011

Last week the Moi Teaching and Referral Hospital in Eldoret was virtually closed down due to a shortage of essential supplies that would allow it to function as a referral hospital. Specialists at the hospital concluded that the hospital could hardly operate at the level of a sub-district hospital, and stopped offering all specialist clinical services as a result.

The hospital’s Intensive Care Unit had long ceased to function after all the machines broke down, and the theatre was closed due to lack of essential supplies to ensure that patients could get safe surgery at the facility. The few emergency cases that were attended to before the theatre was closed had poor outcomes as a result of lack of sterilising supplies and antibiotics to prevent infections.

In the rest of the hospital, lack of bare essentials such as medicines, gloves, syringes and needles, and stationery, together with a demotivated workforce combined to make a patient’s stay at the hospital a living nightmare. Doctors at the hospital agreed that the ethical thing to do was to refer patients to safer facilities, and advise colleagues not to refer their clients to the second largest referral hospital in Kenya.

The government response was typical. A new acting director was appointed, and promises were made about funds being made available to address the hole in the hospital’s budget. Supportive noises were made by politicians, and a turf war even erupted when the vice-president visited the facility on Sunday.

On the same day the VP visited the hospital, a patient died at the private wing of the hospital due to anaemia. Although her relatives and well-wishers were willing and ready to donate blood to save her life, the hospital and the regional blood transfusion centre did not have blood screening kits to ensure the safety of the product. Many patients died, and continue to die, of easily treatable conditions due to lack of cheap antibiotics in the wards.

Health workers in the hospital have been exposed to grave risks due to a shortage of protective gear while handling highly infectious material.

It is time someone took direct responsibility for this state of affairs. Several individuals must sleep with these preventable deaths on their conscience.

The hospital management should not have allowed the situation to deteriorate to this level. If necessary, they should have left their posts and gone back to the wards if they felt that the government was prepared to let patients die for whatever reason.

The hospital management board cannot escape responsibility by pretending that the situation deteriorated suddenly without their knowledge. If the board was unaware about the true financial position of the hospital, then the whole lot of them should bear responsibility for the preventable deaths.

The minister for Medical Services, under whose docket the hospital falls, was aware of the financial problems at the hospital long before the crisis exploded into the national limelight. He must not be allowed to have one more peaceful night’s sleep until he exorcises the ghosts of the innocent patients who died, and continue to die unnecessarily under his watch.

Above all, President Kibaki and Prime Minister Raila Odinga must be held to account. The blood of these innocent Kenyans is on the collective head of these two men and their “nusu mkate (half a loaf)” Cabinet.

Dr Atwoli is secretary, Kenya Psychiatric Association, and lecturer at Moi University’s School of Medicine