Hospitals are on national land not county land,court told
07 March 2014, 09:18
Nairobi - The devolution of health services dispute took a new twist on Thursday when a court heard that hospitals are built on national land not county land.
In the petition seeking orders to suspend legal notices on the transfer of health services from the national government to the counties, activist Okiya Omtatah said that the alleged transfer is illegal since hospitals are structures built on national land.
Omtatah said that hospitals are referral structures created with a nationwide consideration not the counties hence the transfer of health services is improper as they are properties found on national land.
He warned that removing any level of the referral in hospitals will decapitate the under developed health sector in the name of devolution.
“All these facilities sit on national land, Article 62 of the constitution should be amended to allow those transferred functions, you can transfer buildings not land,” Omtatah said.
The alleged illegal legal notice purports the transfer of Level 2 to Level 5 health facilities that constitute the national referral health system from the national government to the county government.
The Council of Governors and the Attorney General are the sued parties while the Commission for the Implementation of the Constitution (CIC) and the Kenya National Union of Nurses (KNUN) are listed as interested parties in the suit.
According to Omtatah and Nyakina Gisebe the petitioners, implementing the legal notices in the name of devolving health services, an institution like the Mathare mental hospital will lose its purpose that is specifically meant to cater for psychiatric cases as it will have to be framed to cater for other needs like other hospitals for its county and not act as a special national referral facility.
He also pointed out referral health facilities like the Mbagathi district hospital for TB and respiratory cases, the national spinal Injury hospital for spinal cord injuries and the Alupe sub district hospital for leprosy and skin diseases and serves East Africa as some of the referral hospitals that would be affected and possibly be scraped off their functions.
He argued that the state and public authorities should not be permitted to proceed and implement the decision to distribute health functions between the national government and county governments.
He also argued that county health services include health facilities and pharmacies established and operated by the local authorities and the constitution does not state anywhere on the existence of county referral health services.
He suggested that for the alleged transfer to take effect there should be a national referendum to amend the constitution.
“Justice will be served by preventing the dismantling and subsequent destruction of the national referral health system,” he said.
The hearing of the case continues on April 4.
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