Doctors’ CBA runs afoul of devolution of health

The ongoing stand-off between doctors and the government highlights the long-running acrimonious relationship that has marked the implementation of devolution as provided for in the 2010 Constitution.

At the heart of the doctors’ demands are higher job grades and better pay but the elephant in the room remains the collective bargaining agreement’s (CBA) attempt to reverse the constitutional provision that devolved healthcare.

By proposing to place the hiring of doctors under the Ministry of Health (MoH), the CBA fundamentally contravenes the Constitution.

Devolution is the cornerstone of the Constitution and so doctors are better advised to challenge the foundation of the pay scales than seek to circumvent the supreme law through the CBA.

The strike points to the Salaries and Remuneration Commission’s (SRC) skewed pay scales that do not support the objects of devolution or enable counties to attract and retain high-calibre staff.  

There is also the related question of hiring and development of health personnel, which the CBA places in the hands of the national government — again contrary to the constitutional provision that clearly says county governments are responsible for personnel management (with the exception of national referral facilities) whilst training is a national function.

Such complementary sub-functions in the sector would be well served through an intergovernmental framework but none presently exists. Relations between the two levels are characterised by low trust and adversarial engagement.

The Musyimi Task Force Report of 2012 proposed a constitutional amendment to place the human resource and development aspect of the health sector under a commission as is the case in the education, a national function.

The Council of Governors (CoG) has rightly rejected the proposal of a national commission. However, the Intergovernmental Relations Act does allow for the establishment of intergovernmental bodies, including a joint commission which would be mandated through the authority of the CoG and the national government based on an intergovernmental agreement.

Another contentious issue is the role of the union as provided in the CBA. The CBA provides for a national union to represent the sector. The counties argue that the union would be required to enter into recognition agreements with all the 47 county governments and presumably the national government as well. 

Counties will equally have the right to negotiate with other unions. Freedom of association is protected in the Constitution and health personnel have the right to unionise. On the other hand medical staff have the right to choose their choice of union and so the KMPDU must conform itself to this new reality.

The CoG’s proposal for recognition agreements allows medical staff protection while ensuring unions maintain a robust accountability framework to retain union members.

There is also the question of the sustainability of a 300 per cent increment. This only caters to the approximately 13,000 doctors and not the 42,000 nurses and 21,000 clinical officers who have also expressed their demands.

The Socio Economic Report 2017 calls for the restructuring of public service pay scales. The present total wage bill is Sh627 billion (Sh850 billion projected for 2017/18) out of a budget of Sh2.2 trillion. The SRC has fallen short of its mandate and has failed to address wage bill reforms.

The SRC’s piece-meal approach has sent the wage bill spiralling. Further, by attempting to review the wage bill without addressing national budget priorities the SRC has chosen the path of political correctness but has ultimately set itself up for failure.

The gaps of the transition continue to bear upon the sector. It is noteworthy that MoH’s budget has increased by at least Sh20 billion since the devolution of health functions contrary to the principle of fund following function.

The failure to rationalise the MoH budget continues to eat into county allocations in the division of revenue process. There is also another estimated Sh40-100 billion held by parastatals which would be due to the county governments.

Of course with rampant financial mismanagement, the counties are doing nothing to strengthen their case for increased funding. Whereas the Abuja declaration sets a target of 15 per cent of the annual budget to support a robust health service system, the sector presently receives approximately Sh133 billion.

On the other hand whereas the Musyimi task force recommended Sh20 billion per year for three years to revitalise health infrastructure, the 2017 Socio-Economic Report indicates that up to Sh30 billion is going into health sector development at county level as counties spend Sh60 billion on health (40 per cent of their total budgets — half of which goes towards development). That this has not translated into better health facilities speaks to poor governance. 

Contrary to the active spin by the unions, the CBA does not address accountability issues.

In a context where Sh1.2 trillion of 2014/15 budget received qualified audit reports and Sh841 billion received adverse reports it is safe to say that poor governance is the biggest threat to service delivery and development in Kenya. 

Despite persistent losses in the sector the union has previously not engaged on corruption, misappropriation or matters of professional conduct.

That the CBA is silent on accountability betrays the real interest of the medics as getting their hands on the money and not addressing systemic issues in the sector.
So do the factors that have precipitated the strike warrant the classification of a national crisis?

• It will be imprudent for government to offer more than 40 per cent salary increase to the medics. There is, however, dire need for a comprehensive review of pay scales to support the delivery of quality services;

• The unions should join hands with the CoG to push for the rationalisation of national government institutions to release funds needed to support the objects of devolution;
• The national budget priorities need to be redirected towards deepening service delivery;

• Governance in the sector is an unmitigated disaster, undermining the benefits of development spending, and the unions should take this up as a priority.

Whereas the strike raises a formidable array of issues, the failure by the protagonists to embrace dialogue and consultation, coupled with the failure to identify causal, systemic issues and the failure to respect the Constitution is what has fuelled the crisis.

Many of these are political issues — the extent to which these will bear upon electoral choices in August waits to be seen.

Gikonyo is a local governance practitioner and National Coordinator of The Institute for Social Accountability (TISA). [email protected]; @CiruGikonyo