You can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time. ~ Abraham Lincoln
For the last three months, Isiolo communities have subjected to another theatre of the absurd by Isiolo County Government in the name of strengthening community health systems and county’s health care with another private merchants in the name of LIVING GOODS without showcasing any definitive model where healthcare will be revolutionised. The entire deal and exercise reeks of fraud and financial malfeasance by the powers that be. Seemingly, it is becoming a “matter of life and death” for the county government to implement this suspicious deals which is nothing but another smokescreen to pilfer public coffers.
This unconstitutional deal with the said Living Goods under the guise of Public Private Partnership (PPP) is embroiled in grand fanfare, pomp and grand media publicity is outrightly shrouded in secrecy and to benefit the greedy buffoons and shadowy cartels who threw the County under the bus and subjecting it into a fiefdom micromanaged by fellows driven by narrow and skewed selfish interest. Conventionally, to benchmark the direct resultant of devolution, ten bundled and unbundled governance dynamics are used, notably:
(i) political governance (entailing “voice & accountability” and political stability/no violence); (ii) economic governance (involving regulation quality and government effectiveness); (iii) institutional governance (comprising the rule of law and corruption-control) and (iv) general governance (entailing political, economic and institutional governance)
This stale Public- Private partnership (PPP) or what they call Memorandum of Understanding (MoU) deal between Isiolo County Government and the Living Goods has been a subject of public scrutiny through various prayers to the County Assembly and the House of Senate by patriotic petitioners. To the Isiolo County Assembly Members – history will judge you harshly. The entire process is devoid of comprehensive public participation and much worse the Assembly with no elaborate legal framework. In surrounding our mass storytelling function to entitles whose first priority is to is profit, we make dangerous concessions on your very cardinal duty. “Tell us”, we say in effect, as much as truth as you can, “while still making money in form of handouts”. This is not the same as asking, ” Tell us the truth”. A culture’s ability to understand the world and itself is critical to its survival. But today we are led into the arena of public discourse by seers whose main gift is their ability to compel people to continue to watch them selling the soul of Isiolo with a few pieces of silver.
Therefore, we are going to dissect this deal blow by blow, inch by an inch and soil by soil. Public service seems much easier if you don’t know what’s really going on. Evil is dominating because too many of us are ignorant. We must change that before it’s too late. What is clearly manifested here is cartels linking up with another cartels to fleece exchequer in the name of strengthening health sector in Isiolo County.
Moreover, In the agreement between LivingGoods and Isiolo County, the agreement was signed by Dr. Ruth Ngechu on behalf of the Living Goods and on behalf of Isiolo County Government was signed by the Governor and County Attorney. To the best of my understanding, Isiolo County Government does not have the office of the County Attorney! It was never advertised by the authorised corporate organ of the county government which is Isiolo County Public Service Board (ICPSB). Governor’s personal legal advisor has no authority whatsoever to enter any form of contractual agreement for or on behalf of the county government. This is an informed decision based on the circular from the Attorney Chambers, therefore, this in itself is an illegality and tantamount to gross misconduct.
HOTELS GATE PUBLIC PARTICIPATION IN ISIOLO
Constitution of Kenya (2010) and other applicable laws demands that public participation on matters public affairs is mandatory and there is no short cut about it. It cannot be circumvented. Nonetheless, public participation has a different meaning. Communities living in Merti and Garbatulla sub- counties which is normally referred to as “Isiolo proper” are not consulted on public affairs and much more they form larger majority of the population. On numerous occasions, public participation in Isiolo town has been conducted in high end/ lavish hotels where participants are selected depending on political persuasions, affiliations and leanings. The said public participation has been popularly christened “Hotels Gate consultations “. Consequently, all these hubris contravenes very cardinal law of land. Public participation and education. Kenya is considered a crucial pillar of the Kenyan Constitution. It is by providing the public with the opportunity to take part in decision making processes in government.
THE LEGAL FRAMEWORK FOR PUBLIC PARTICIPATION IN KENYA
1. THE CONSTITUTION OF KENYA, 2010
Article 1(2): All sovereign power belongs to the people of Kenya. The people may exercise their sovereignty directly or through their elected representatives.
Article 10 (2) a, b and c : The national values and principles of governance include; democracy and participation of the people; inclusiveness; good governance, integrity, transparency and accountability.
Article 27: The Constitution guarantees equality and non-discrimination. Hence, public participation should ensure equality and non-discrimination.
Article 33: Public participation should respect the freedom of expression of all participants.
Article 35: The Constitution guarantees the right to access information by citizens
Article 61: Gives the public, individually or as a group, a say in matters of land including acquisition, management, transfer, disposal, or ownership of private, public and/or community land.
Article 69 (1)(d) : The State shall encourage public participation in the management, protection, and conservation of the environment.
Article 118: (1) Parliament shall— (a) conduct its business in an open manner, and its sittings and those of its committees shall be open to the public; and (b) facilitate public participation and involvement in the legislative and other business of Parliament and its committees.
Article 119 (1): Every person has a right to petition Parliament to consider any matter within its authority, including enacting, amending, or repealing any legislation.
(2) Parliament may not exclude the public, or any media, from any sitting, unless in exceptional circumstances the relevant Speaker has determined that there are justifiable reasons for the exclusion.
Article 174 (c): Objects of devolution are: to give powers of self-governance to the people and enhance their participation in the exercise of such powers in decision-making.
Article 174 (d): Communities have the right to manage their own affairs and to further their development.
Article 184 (1): National legislation shall provide for the governance and management of urban areas and cities and shall, in particular— (c) provide for participation by residents in the governance of urban areas and cities.
Article 196 (1): A county assembly shall—(a) conduct its business in an open manner, and hold its sittings and those of its committees, in public; and (b) facilitate public participation and involvement in the legislative and other business of the assembly and its committees.
(2) A county assembly may not exclude the public, or any media, from any sitting, unless in exceptional circumstances the speaker has determined that there are justifiable reasons for doing so.
Article 201 (a): There shall be openness and accountability, including public participation in financial matters.
Article 232 (1)(d) : The values and principles of public service include the involvement of the people in the process of policy making and (f) transparency and provision to the public of timely and accurate information.
Fourth Schedule Part 2(14): The functions and powers of the county are to coordinate and ensure the participation of communities in governance. Counties are also to assist communities to develop the administrative capacity to enhance their exercise of power and participation in governance at the local level.
2. THE COUNTY GOVERNMENTS ACT
The provisions on public participation in Kenya contained in this Act affect the county governments.
Section 113: Makes public participation in county planning processes compulsory.
Section 87: Stipulates the principles of public participation. They include timely access to information and reasonable access to planning and policy making process.
Section 88: Citizens have a right to petition the county government on any matter under the responsibility of the county government.
Section 89:County government authorities, agencies, and agents have a duty to respond expeditiously to petitions and challenges from citizens.
Section 90 : A county government may conduct a local referendum on among other local issues— county laws and petitions, or planning and investment decisions affecting the county for which a petition has been raised and duly signed by at least twenty five percent of the registered voters where the referendum is to take place.
Section 91 : The county government shall facilitate the establishment of modalities, and platforms for citizen participation e.g. town hall meetings, IT based technologies and establishment of citizen fora at county and decentralized units.
Sections 94, 95, 96: Counties are to establish mechanisms to facilitate public communication and access to information using media with the widest public outreach. Every county shall designate an office for ensuring access to information.
Sections 100 and 101: County governments should create an institutional framework for civic education
ISIOLO HEALTH SECTOR: CONTEXTUAL ANALYSIS
All governors and Members of County Assemblies (MCAs), should be very careful, the Kenyan public is not a herd of buffoons or blind. Kenyans may vote to return to a unified system with no devolution. Kenyans have to feel the benefits of devolution. Though some counties have stood out, others are still in the doldrums bogged down by poverty of leadership. there. Given the resources they have at their disposal; given how government works, and what it takes to get development projects implemented. The devolution has simply failed to take off in some counties.
It is a tragedy that Kenyans should have elected as governors, men who are obsessed with greed, and who are dedicated only to their own enrichment. Men with no sense of shame, who do not recognize the grave responsibility of leadership. All this is as a result of inadequate experience on governance. No man who has received a proper education could live with himself, spending all his time indulging his greed, when he is surrounded by poor hoi polloi’s people, who had hoped for a better life when they elected him.
Fast forward, before engaging in any form of partnership or memorandum of understanding with private entities or stakeholders, Isiolo County government was expected to carry out an overhaul of the current status quo of the health sector especially at level 4 Isiolo County Referral Hospital, Merti and Garbatulla sub county hospitals. Seemingly the decision was done in haste to achieve certain unexplained sinister motives.
The county government health department should have carried disruptive measures in order to realise tangible outcome in the health services. The rallying call to revolutionise the county health sector in Isiolo was long overdue.
The Executive organ of the County Government should have first organise County Health Conference made up of all county health officials, doctors and health partners to form a “Think tank or Task Force on health services and” delivery with clear terms of reference and within stipulated timeline. This can be in collaboration with other health partners specialists and consultants.
Some of the terms of reference includes; realising a responsive, integrated, accessible and quality-focused health care delivery system for Isiolo county. With fundamental aim of re-visioning health care service delivery for Isiolo county. The conference, would have pointed out some common pitfalls currently experienced in the county health sector that requires major turning points in the evolution of health thinking and action. This will definitely invoke disruptive Innovation as a way of initiating a simple model dubbed“Think big- Start small- Act now”, to take root in the health sector.
The consultative conference should have highlighted on;
~ The status of health services delivery in Isiolo as per the task force report on health services delivery.
~ The discussions to review and modify issues cutting across health care services including;
• Quality and efficiency,
• Human resources for health,
• Universal health insurance,
• Health financing,
• Integration of ICT and governance in health services and the need to spearhead good public health practices that will lead to a preventive care system that is practical for the county.
Isiolo county has the potential to improve health care access, particularly for people with complex human service needs. Consequently the conference should resolve to have a county government innovation model and Action Plan that is designed to ensure universal health care for every household. With a population of more than 200,00 and about 94,000 households, Isiolo county is able to deliver quality health services to all its inhabitants. The current health system is capable and can improve health care outcomes and lower the cost of care.
PPP DEAL ON INTERNATIONAL PERSPECTIVE
Actually Public-Private Partnership is a model that has been largely abused and used to disguise conflicting interests, theft of public resources, failure in management of public services or amenities and worse to auction public utilities to private sector players.
It is a model that has failed in Europe and some parts of Asia. PPP projects are risky and that’s why it must be sanctioned by treasury. PPP models such as BOT, BOOT and BOO amongst others has varying effects on whether government or it’s agencies can influence utilisation of public asset or not and is subject to many legal battles and interpretations.
The irrevocable contracts and attendants legal consequences has affected many PPP contracts. The government of Djibouti terminated/cancelled deal they gave to a private sector player to operate port of Djibouti and the case is now at the London Court of International Arbitration (LICA).
Whereas World Bank is advocating PPP for many African government’s due to expanding budget deficits, huge investments required for priority infrastructure and critical sectors, PPP cannot replace need for better governance and accountability by government actors or it’s agencies.!!!
CHALLENGES FACING PPP IN KENYA
Limited recourse financing for the PPP in the country
Projects are often characterised resource financing that is leaders can only be repaid from revenue generated by projects
Greater high risks involved in carrying out some projects
Difficulty in accessing commercial lending that is only DFI funding available for such projects
Credit risk of off taker that is due to poor collections from ultimate consumers and inability to pass through various costs to consumers
Mitigations available which are not being pursued aggressively
Lack of human resources to effectively apply Private Public Partnership
Inadequate competent local service providers in the country
More than 3 million Kenyans in four counties are set to start enjoying universal health coverage after President Uhuru Kenyatta launches a pilot programme on December 1.
President Kenyatta announced that the programme will be launched in Isiolo, Kisumu, Nyeri and Machakos counties.
The launch will coincide with the World Aids Day, whose theme for this year is “Know Yourself”. The pilot phase is expected to last for a year before it is scaled up to cover the rest of the country. After registration, patients will be treated free of charge, including referrals.
President Kenyatta formally made the decision on 24th October, 2018 Tuesday after meeting the UHC Inter-Governmental Committee that also comprises governors at State House, Nairobi.
Health Cabinet Secretary Sicily Kariuki, who co-chairs the committee with Isiolo Governor Mohammed Kuti, briefed the President on the preparations ahead of the pilot launch.
• The Cabinet Secretary said the pilot programme will cost the government around Sh3.17 billion.
• The national government will allocate Sh800 million for each of the participating counties, with an additional 800 million for referral cases.
• Governors will also contribute a similar amount towards the programme.
• The success of the pilot programme in the four counties will clear the way for the national rollout, which will mark the beginning of a new era in public health service provision.
Governors Mutahi Kahiga (Nyeri), Prof Anyang Nyong’o (Kisumu) and Dr Alfred Mutua (Machakos) represented the counties taking part in the pilot.
President Kenyatta gave the committee his approval to finalise the launch plans and also draft the respective Memoranda of Understanding between the Ministry of Health and the four counties.
The Head of State encouraged the governors to actively sensitise their people before the pilot project is launched.
√ The new UHC package will benefit at least 3.2 million Kenyans in the four pilot counties and is expected to contain a new bouquet of services accessible in public health facilities.
√ According to the government, the decision to pilot the programme in the four counties was based on existing evidence on their disease burdens.
Kisumu was identified because it leads in the infectious diseases category, especially for HIV/AIDS and tuberculosis, while Machakos records the highest number of injuries mostly from accidents occurring along the busy Mombasa-Nairobi highway.
Nyeri was selected because it leads in non-communicable diseases, especially diabetes, while in Isiolo, the government will seek to establish how the package is well suited for nomadic and migratory populations.
√ Community health volunteers will be paid a monthly stipend of Sh2,500 plus National Hospital Insurance Fund membership as part of efforts to recognise their work.
√ Community Health Volunteers were previously known as volunteers, but now will be eliminate from the health sector’s vocabularies. They will be paid Sh2,500 a month in addition to securing their NHIF membership. This is not a salary since the work they do is much more valuable than that, but a stipend to initiate efforts to bring them into the ranks of the remunerated.
√ Expenditure on health is a major contributor to poverty. Many families are falling into poverty because they are spending their savings on health-care services. But under the new scheme, people will not be paying for health services.
√ If the funds lost to corruption were used for health service delivery, every Kenyan would be comfortably covered in the UHC scheme.
√ Piloting the package in a controlled population ensures less chances of failure and can minimise the risks when the programme is later scaled up to cover the entire country.
√ The programme would also encompass public health education in order to scale up preventive measures and reduce the prevalence of non-communicable or lifestyle diseases. They will be reorganisation of the community health workers’ service delivery systems to address issues of water, sanitation and health, nutrition, screening for diseases, physical health education and dietary discipliner so that people can be empowered to make the right lifestyle decisions and avoid falling sick unnecessarily. Courtesy ~ ” Daily Nation”
DEEP SEATED LACUNA IN THE DEAL
• The project was not envisioned in the County budget 2018/19 or the County Integrated Development Plan hence it is unlawful to arbitrarily introduce the project without aligning it with the national and county development policies and subjecting it to the budgeting process including appropriation by the County Assembly as demanded by the Constitution, the Public Finance Management Act and the Public Finance Management (County Governments) Regulations.
• As provided by the Public Finance Management (County Governments) Regulations, the envisioned project should have been budgeted for first before being considered since it seeks to impose multi-year obligations on the county government.
• As demanded by the Public Finance Management (County Governments) Regulations 2015, the negotiations and draft Agreement should have clearly assessed, quantified and identified the
proposed contribution of Living Goods.
• The draft Agreement proposes to bind the county government to co-fund the cost of the project which is projected to be Ksh. 345, 542, 327 without the necessary budgetary approvals by the County Assembly.
• The proposed opening of a joint purpose account with a private entity flouts the Public Finance Management (County Governments) Regulations requirement that project bank accounts be opened at the Central Bank of Kenya.
• The draft Agreement proposes the transfer of control of huge sums of public funds to a private entity thereby exposing public funds to private management in contravention of constitutional principles of financial management.
• The process completely disregarded the constitutional principles and objects of devolution including democratic and accountable exercise of power; power of self-governance to the people;
enhancing public participation in the exercise of power and in making decisions; promoting socio-economic development; effective service delivery; promoting decentralisation of services; and enhancing checks and balances and separation of powers.
• Both the Constitution and the Health Act demand that the county government must provide appropriate, adequate and comprehensive information to the public on its health functions including the organisation of health services and to ensure public participation in the planning, management and governance of county health services.
• The county executive has disregarded the constitutional provisions on transparency and accountability and the obligation to publish and publicise information of public importance; the process is shrouded in mystery, misinformation, disinformation and a general lack of relevant information to the public.
• Consequently, the principles of public finance including openness, accountability, public participation and the promotion of equitable development as provided in the Constitution of Kenya 2010 and the Public Finance Management Act have been ignored by the county executive.
• The county executive has failed to timeously and extensively update the County Assembly on this matter as required by the Constitution; scant information was only provided to the Assembly after public concern.
• As provided by the Constitution and the Health Act, delivering healthcare services is a county government functions for which the county executive is answerable to the people of the county.
• Development of policies and standards is, however, a national government function.
• Consequently, the county government must consult the responsible national government organs for guidance when embarking on a project with such significant health and financial implications.
• The county government should have consulted the relevant national government organs, specifically the national Ministry of Health and the National Treasury.
• Failure to conduct due diligence on Living Goods as demanded by the Public Finance Management (County Governments) Regulations 2015 in order to ascertain and disclose the: annual reports of activities; annual return of details of directors, office bearers and auditors; and its sources of funding.
• Living Goods is not registered to undertake the activities envisioned in the project. Contrary to the Public Finance Management (County Governments) Regulations 2015.
• The county executive is attempting to unprocedurally delegate its constitutional functions to a private entity which has no responsibility or accountability obligations to the people.
• The county executive is attempting to unconstitutionally delegate the Assembly’s legislative power to a private entity.
• The draft Agreement denies the county government practical and meaningful participation in and control of the actual implementation of the project by LivingGoods.
• Living Goods is only obliged to provide an accurate record of assets purchased using the common funds if such record is demanded, thereby contravening the constitutional principles on transparency and accountability and the legal requirements of the Public Procurement and Asset Disposal Act of 2015 on acquisition and disposal of public assets.
• The proposed Agreement is silent on the responsibilities of Living Goods Limited to the county government in relation to funds upon termination of the Agreement.
• Alternatively, the process also appears to be a thinly-veiled attempt to enter into a Public Private Partnership (PPP) engagement without following the procedure provided in the Public Private Partnerships Act.
• Since the project has characteristics of a PPP, the county executive should have consulted the Public Private Partnerships Unit at the National Treasury for guidance on possible implications and on the relevant procedure.
• The proposed Agreement irresponsibly exposes public funds to potential misuse, misappropriation, embezzlement and corruption in contravention of the constitutional and
statutory principles of fiscal management cited above.
• The proposed Agreement potentially exposes an essential public service to unregulated capture by private entities and poses a health risk to the people of Isiolo County.
WEAPONIZATION OF PUBLIC PARTICIPATION IN ISIOLO COUNTY GOVERNMENT.
“When you’re dealing with frauds and liars, listen more to what they don’t say than what they do.” ― DaShanne Stokes
The much hyped Public Participation forum hosted by the Isiolo County Government that brought together several leaders of Isiolo both current and previous was meant to shed light on the “agreement” the County has entered with Living Goods. The forum was also beamed live on Citizen T.V and the forum full of theatrics and showbiz left little to be admired as different leaders seemed not to have the right information or they deliberately hoodwinked the audience regarding the deal worth millions which the County is appending its signature to. Let me chip in briefly just make it clear some of the misinformation and contradictions that was clear all through the live coverage.
1. Living Goods Deputy County Director Dr. Ruth Ngechu informed the audience that for every Ksh. 63 the County gives they supplement it with Ksh. 37. In brief that’s a 63% versus 37% but if you analyze the agreement you will realize a complete opposite. In 2018/2019 the contribution is 50%-50% however the contribution of Living Goods seems to decline as that of the Isiolo County Government of keeps increasing exponentially as follows: 2019/2020 the contribution is 57% against 43%, in 2020/2021 the contribution is 71% against 29%, and in 2021/2022 the contribution is 84% against 16% for Isiolo County Government and Living Goods respectively.
2. Ms. Ngechu also informed the public that the Agreement they are about to enter with the County is for technical assistance. What is Technical Assistance?. “Technical assistance is non-financial assistance provided by local or international specialists. It can take the form of sharing information and expertise, instruction, skills training, transmission of working knowledge, and consulting services and may also involve the transfer of technical data.” If they are in the County for Technical Assistance what is the use of all the millions of money being channeled to that?
3. The Deputy Director termed the entity as a non-profit Making Company. The truth is that nowhere even in their own website and from the records of registrar of companies (Certificate of incorporation No.CPR/2013/99245 ) are they listed under that as such. A brief on what they do is here: “supports networks of ‘Avon-like’ health entrepreneurs who go door to door to teach families how to improve their health and wealth and sell life-changing products such as simple treatments for malaria and diarrhoea, safe delivery kits, fortified foods, clean cook stoves, water filters, and solar lights”. Any entity that sells is in business and therefore it is means PROFIT- MAKING!
4. The leaders who spoke one after the other were trying to convince the audience that the deal is not a Public Private Partnership but rather Living Goods is only coming in as a Charitable Organization! . This was a classical Russian roulette heavily clipped with game of musical chairs. This is outright blatant lie as a any credible charitable organization will not need money from the County Government. The leaders who were paraded to sing for Living Goods should explain the use of the word partnership! And why is the county dishing out millions of money into this private limited company?
5. One leader was heard talking about cancer patients receiving treatment. Living Goods has no single expertise and technical know-how when it comes to matters cancer whether benign or malignant. The County is spending millions of money on an entity supposedly helping reduce infant mortality rates a condition that has largely been attributed to inadequate health facilities, jalopy or lack of ambulances and dilapidated infrastructure.
6. Stage managed: The facilitator of the function one Mr. Simba Guleid seemed to have a list of individual who seemed to have been handpicked to respond and give comments. The individuals picked didn’t ask any questions but were only giving comments struggling to praise the County probably following the scripts given to them prior to the function. Only 3 questions were asked but no one took time to respond to it. This was stage managed from the beginning as individuals who were the blue-eyed boys of the regime were given a field day to be a court poet.
7. Living Goods intends to use 1 motorbike per ward and employ between 700-1000 CHVs paying them between 10$ to 20$. The situation in the Health docket is already deplorable and with few health facilities as well as lack of ambulances. What impact will this have on the poor residents of Isiolo? The reality is that the millions being put into the hands of this unknown entity could be of great use if it were spent to improve the current infrastructural and streamline health management.
I want to end with an excerpt about what Living Goods is actually engaging in and then I will let each and every one of you to be the judge in this. This is a statement by the Founder of LivingGoods Mr. Chuck Slaughter.
“If you live in a semi-rural or even urban area in Africa and your kid gets sick, you’ve got some bleak choices,” Slaughter says. A mother can trek to a government health clinic that may or may not have the medicine or means to treat her kid. Or she can self-diagnose and try her luck with drugs from a local
pharmacy. But now in places where Living Goods has set up shop, that mom can call the local Living Goods agent.
“She’ll come to your home. She can diagnose your child with a living goods mobile app that we designed. It’s automated to diagnosis those 3 diseases [malaria, pneumonia and diarrhea] that kill half the kids in the
continent,” Slaughter says. “And if your kid is positive for any of those diseases she has the medicine you need in her bag.”
Why not just invest in village public sector community health workers as the government has done in Ethiopia?
“Ethiopia is great,” Slaughter says. But he quickly adds, “It’s an exception. There are two countries in sub-Saharan Africa that have leadership in public health — Ethiopia and Rwanda. The others all have community health systems that are broken.”
He sees door-to-door capitalism as a way to fix them.
Whispers from the North is an online platform that appreciates the ecological, cultural and socio-economic diversities of Northern Kenya. We also acknowledge that the lives of the communities of northern Kenya has been shaped by a number of intrinsic and extrinsic factors which have led to complex challenge that calls for a multifaceted approach.