Win for governors as court declares state authority illegal

Governors have won their fight against the Kenya Tissue and Transplant Authority, an agency established last year to manage organ transplants and licence health facilities.

On Monday, the High Court declared the new authority illegal.

Former President Uhuru Kenyatta established the authority on August 3 via Legal Notice No 142 of 2022.

It took over all blood transfusion services, organ transplants and additional roles to register and licence facilities and establishments dealing with human cells, tissues and organs and transplant services as well as maintain a registry of transplant service providers, donors and recipients.

Governors rushed to court on August 17 complaining most of these roles were already devolved.

Justice Lawrence Mugambi on Monday said President Kenyatta’s order was unlawful and violated sections of the Constitution and the Health Act.

“An order of prohibition be and is hereby issued stopping the implementation of legal notice 142 of 2022 establishing the Kenya Tissues and Transplant Authority. This order however does not affect past action that has already been undertaken by the said authority,” Justice Mugambi ruled.

Mugambi also agreed with the governors there was neither consultation nor public participation before the authority was established.

He said this was contrary to Articles 6, 10, 187 and 189 of the Constitution which provide for public participation and consultation and cooperation between both levels of the government.

He said the Executive is constrained by the principle that it shall exercise no power and perform no function beyond that conferred upon it by law.

The Council of Governors alongside some civil society organisations also have an ongoing petition before the High Court seeking the de-gazettement of the National Syndemic Diseases Control Council.

The NSDC was created last year to replace the National Aids Control Council (NACC) but came with added mandates including the management of tuberculosis and malaria, formation of policies to ensure prevention of terminal diseases and the coordination of related programmes.

Earlier, Margaret Nyambura, a lawyer with the health lobby Kelin, noted the Constitution was clear that licensing of county health facilities is a county government function.

“The Constitutional Court will be called upon to determine the particular functions of the health docket which are to be managed by the county governments so as to put this, and any future debates, to rest,” she said.

Separately, CoG chairperson Anne Waiguru called for the audit of all laws that had been passed since devolution.

“We note with utmost concern that the following authorities were established by the Ministry of Health through Executive Orders issued by the former President a few months preceding the August 9th General Elections: The Kenya National Public Health Institute Order of 2022, National Syndemic Diseases Control Authority and Kenya Tissue and Transplant Authority,” she said.

“This continues to be a trend whereby the national government creates institutions to undertake devolved functions. The council calls for the audit of all laws that had been passed before the inception of devolution in 2013 and also post-2013, with a bid to align those to the devolved system of governance,” Waiguru added.