- Two CoG lawyers said these are just a few examples of continued aggression by the national government in grabbing health from the counties.
- The President’s Executive Orders are difficult to overturn because they do not require approval from MPs, who also lack the powers to simply stop them.
Image: FILE
The incoming administration is already facing an attack from governors who accuse the national government of grabbing health functions through the backdoor.
They have filed two petitions at the High Court in Milimani to overturn Executive Orders issued by President Uhuru Kenyatta giving two new agencies sweeping powers to manage health services.
The petitions will be mentioned later this month and in November during the reign of President-elect William Ruto, who will have powers to rescind his predecessor's orders.
Council of Governors lawyer Peter Wanyama petitioned the court to stop the establishment of a new body called the National Syndemic Diseases Control Council, with powers to mobilise government ministries, counties, all NGOs, research institutions, the private sector and universities to participate in diseases control and prevention.
President Kenyatta established the council under the Ministry of Health on August 4 to replace the National Aids Control Council.
“The Legal Notice No. 143 of 2022: The National Aids Control Council (Amendment) Order 2022 is unconstitutional because it contradicts the very foundation of devolution,” Wanyama said. His petition will be mentioned on November 7.
CoG has also petitioned to overturn an August 1 legal notice that created Kenya Tissue and Transplant Authority, a new agency with powers to inspect and collect revenues from all hospitals.
“The Executive Order is unconstitutional as it is an attempt to assign to national government entity some of the revenue-raising powers of county governments provided for by Article 209 (4) without their consent,” CoG lawyer Eugene Lawi said in the petition that will be mentioned on August 22.
Both lawyers said these are just a few examples of continued aggression by the national government in grabbing health from the counties.
Wanyama said they have tried in vain to resolve the disputes through the Inter-Governmental Relations Committee as required by the Intergovernmental Relations Act, 2012.
“The respondent (Ministry of Health) has continued to exhibit utter disdain to the process by continuing to restructure, re-assign their functions and allocation of resources at the disadvantage of the county governments,” he said.
CoG chief executive Mary Mwiti, in a letter to governors, said the orders are meant to claw back on the roles of county governments.
Mwiti said they have enjoined the Senate in both cases.
“The council is seeking for, among other reliefs, an order for prohibition stopping continued implementation of the impugned legal notice,” she said. “We shall attend the same and defend the interest of the counties.”
The 2010 Constitution fully devolved the health function: the national government was assigned only policy, national referral services and capacity-building for counties.
The Executive Orders are difficult to overturn because they do not require approval from MPs, who also lack the powers to simply stop them.
Once issued, the orders remain in force until they are cancelled, revoked, or expire on their terms. However, the courts can overturn them, if they are deemed unconstitutional.
-Edited by SKanyara