KATIBA CORNER

LYNNE MUENI: Kenyans have a right to information on UHC

Article 201 of the Constitution provides that there must be openness, accountability and public participation in finance matters.

In Summary

• There should be public confidence about accessibility and standardized quality across the country.

• The backbone of this system should be clear communication and transparency.

Kirinyaga Governor Anne Waiguru, Health CS Sicily Kariuki and Devolution CS Eugene Wamalwa signed the UHC scale up plan on Monday, January 13, 2020.
Kirinyaga Governor Anne Waiguru, Health CS Sicily Kariuki and Devolution CS Eugene Wamalwa signed the UHC scale up plan on Monday, January 13, 2020.
Image: MERCY MUMO

There is no better time to talk about healthcare than now. Since the Covid-19 pandemic began, greater scrutiny has been placed on the health sector.

The sudden increase in number of patients requiring services has uncovered issues in public and private hospitals. Concerns about capacity in health facilities, and scarcity of amenities such as ICU beds has made Kenyans alive to their reality. There is now an increased need for Kenyans to feel secure in their health system.

Despite the right to the highest attainable standard of health being guaranteed under Article 43 of the Constitution, Kenyans face untold barriers in accessing the most basic medical services.

While structural issues in hospitals are hard to ignore, it is the patients’ challenges that often frustrate access to healthcare. Some pressing needs on the patients’ side include access to information on services available, how to make use of those services as well as expected cost and quality. If patients have information about their healthcare system, they will surely develop enthusiasm to interact with, and benefit from, it.

ACCESS TO HEALTHCARE INFORMATION

Unknown to most, access to information is not a luxury. It is a right protected under Article 35 of the Constitution.

The drafters of the Constitution paid special attention to the fact that access to information is essential, and mutually supporting other rights. Which is why Article 35 (1) (b) provides; that every citizen has the right of access to information held by another person and required for the exercise and protection of any right and fundamental freedom.

This applies not only to information held by the state (citizens have the right to that anyway).

The right to health is one such right. An example of the impact of information on health service uptake is when the country was preparing to receive Covid-19 vaccines. It was easy for most people with access to TV and radio to tell where to get the jab, and there was constant reassurance through the media that the vaccine was free in public hospitals. There was also regular reprimanding of people who wanted to privatize the vaccine by the Health Cabinet Secretary.

This does not mean that the information was evenly distributed throughout the country. In fact, it was only available on mainstream media.

The wealth of information also did not prevent vaccine apathy or cure shortcomings such as vaccine inequity. The argument here is that the information was to a certain extent, available, and a closely related impact was felt – the vaccines ran out in no time. 

Which begs the questions: Can the same be said for Universal Healthcare Coverage? Are Kenyans informed about the drastic change that is happening around them? Do they know the implications of this new health system?

When UHC was rolled out in its pilot phase, there were many teething problems like irregular registration, inadequate staff, lack of basic hospital necessities and an increased burden on hospital staff. There was reduced capacity of public hospitals during that time to handle patients and properly discharge their duties.

When the Linda Mama programme was introduced in 2018, an article in The Star newspaper had the headline “Mothers ignorant of Linda Mama miss out on free delivery services” It was noted in the same article that a separate registration process, other than NHIF, was required to be eligible. Was this process communicated to the public?

If the goal of UHC is to enhance the right to health by including those who are economically vulnerable, then those people need to know what is available to them, how the system works and what to expect when they go to hospitals. There should be public confidence about accessibility and standardized quality across the country. The backbone of this system should be clear communication and transparency.

HEALTH FINANCING

The most publicized tag line on UHC is that ‘everybody will get the healthcare they need without financial hardship’.

This sounds noble until you realise financial hardship is relative. The government’s National Hospital Insurance Fund (Amendment) Bill of 2021 proposes that everybody over the age of 18 years should be compelled to contribute to the NHIF (unless they already benefit, through a parent for example).

In addition, if the bill is enacted, employers will also be required to match the contributions of their employees. This is information Kenyans need to be able to participate in the law making as the Constitution promises.

It is obvious that for UHC to survive it must be financially robust, but finance is not the only pillar for its success. Countries like neighbouring Rwanda have implemented UHC without compelling its citizens into a mandatory insurance scheme. Instead, the system is voluntary and the poorest pay nothing. Enrollment is high.

PUBLIC PARTICIPATION AND ACCOUNTABILITY

Article 1 of the Constitution confers all sovereign power on the people of Kenya and grants them authority to exercise this power in two ways: directly and indirectly. Indirect exercise of power is through elected representatives, the judiciary and executive structures.

Public participation is one form of indirect exercise of power. Article 10 (2) provides that one of the national values and principles for governance is ‘democracy and participation of the people’.

Article 118 (1) (b) puts a responsibility on parliament to create forums to enhance public participation. It is through these forums that people contribute to governance. Public participation gives legitimacy to government plans. It will take convincing through collaboration - not imposition - for Kenyans to buy in to this system.

The issue of participation becomes more important for UHC because people’s money is involved. Article 201 of the Constitution provides that there must be openness, accountability and public participation in finance matters. As stated earlier, the NHIF Amendment Bill would make NHIF contributions mandatory to finance UHC. As seen during the pilot phase and in other countries, UHC also stirs foreign donor interest and financial support.

If our recent history is anything to go by, we need to tread with caution. At the onset of the pandemic, the country received a lot of donor support which the BBC estimated to be about $2 billion (£1.6 billion).

This financial support, though well intended, led to a scandal within the health sector where it was alleged that $7M donated for purchase of Personal Protective Equipment (PPE) was misappropriated.

The impact of this mismanagement of funds was that frontline workers were exposed to the virus and many lost their lives.  Recently, the NGO Human Rights Watch published a report on the Covid-19 cash transfer programme.

This programme was created to relieve vulnerable members of society by providing cash to cushion them from negative economic effects of the pandemic.

The report revealed that the programme was tainted with irregularities. It came as no surprise therefore, that part of the recommendation by Human Rights Watch was that ‘all information on the criteria for allocation and distribution of social protection funds aimed at mitigating the socio-economic impact of the COVID-19 pandemic ought to be published’.

If this information was readily available, it would have helped hold the people involved accountable. Information is key to accountability, participation, and most national values.

MOVING FORWARD

The Association of Kenya Insurers has already sent out warnings that, if employers are asked to match employee NHIF contributions, they might pull out of private insurance schemes they have taken for employees.

This would drive up the cost of private insurance forcing most people to be highly dependent on UHC. It is only right therefore, that the government assures Kenyans of UHC viability by allowing public discourse and setting up accountability structures. Care should be taken to honour the rights of citizens (such as to information) while implementing UHC.

When information is available, people are able to understand and question laws and policy. They are also able to seek redress when rights are infringed. 

 

The author is an advocate of the High Court of Kenya and a public interest litigation Fellow at Katiba Institute