Pharmaceutical Society Of Kenya & Another V Attorney General & 3 Others (Petition 85 Of 2018)  KEHC 85 (KLR) (Constitutional And Human Rights) (22 September 2021) (Judgment)
|Petition 85 of 2018||22 Sep 2021|
Weldon Kipyegon Korir
High Court at Nairobi (Milimani Law Courts)
Pharmaceutical Society of Kenya & another v Attorney General & 3 others
Pharmaceutical Society of Kenya & another v Attorney General & 3 others (Petition 85 of 2018)  KEHC 85 (KLR) (Constitutional and Human Rights) (22 September 2021) (Judgment)
Sections 16, 17 and 33 and the First Schedule to the Health Act, 2017, are unconstitutional as they discriminated against certain health care professionals by barring them from holding administrative posts.
The 1st petitioner filed Petition No 85 of 2018 and the 2nd petitioner filed Petition No 123 of 2018. The two petitions were consolidated with the consent of the parties and Petition No 85 of 2018 was designated the lead file. The petitioners main contention was about the constitutionality of sections 16, 19, 33, 45 and the First Schedule of the Health Act, 2017 which they alleged essentially placed health professionals with equal competence on unequal platforms. The effect of the provisions was to bar pharmacists and nurses from holding certain administrative posts which they had previously been able to hold. The introduction of the requirement that holders of such posts should be registered under the Kenya Medical and Dentists Board meant that professionals that were regulated under the Pharmacy and Poisons Board and the Nurses Council were not eligible for such posts.
The petitioners stated that they had expressed concerns on several clauses of the Bill that came before the enactment of the Health Act. Their concerns were not incorporated into the statute in question. An additional contention from the petitioners was that the Health Act breached the provisions of article 234(2)(a)(i) of the Constitution as it purported to create offices in the public service without authorization of the Public Service Commission.
The 1st and 2nd respondent responded to the 2nd petitioner's case by filing grounds of opposition. They advanced arguments that included the assertion that the impugned provisions of the Health Act enjoyed a presumption of constitutionality and that the presumption had not been rebutted. They stated that the Health Act was enacted in accordance with constitutional dictates. They contended that for various reasons the objects of the Health Act would be defeated without a justification if the prayers sought were granted. Among the reasons advanced was that there would be poor coordination of health services between the national and county governments and that there would be lack of coordinated leadership between the national and county governments. The 1st and 2nd respondent also stated that the court lacked jurisdiction to entertain the matter as the petitioner had not exhausted an alternative mode of seeking redress (petition to Parliament) and that the matter should have been filed at the Employment and Labour Relations Court.
The Attorney General filed grounds of opposition in relation to both petitions. He also stated that the petitioner had not rebutted the presumption of constitutionality with respect to the impugned provisions of the Health Act. The Attorney General added that the petitioner had not exhausted alternative remedies (petition to Parliament) and that the court lacked jurisdiction to handle a matter about the employment of nurses either at the national or county level of government.
- Whether the High Court had jurisdiction in relation to a claim where it was alleged that certain professionals in the health care system, including nurses and pharmacists, had been discriminated against by being barred from holding certain administrative posts.
- Whether the provisions of article 119 of the Constitution, that allowed any person to petition Parliament for any matter concerning an enactment, ousted the High Court's jurisdiction to entertain a matter about the alleged unconstitutionality of a statute, in the first instance.
- Whether there was adequate public participation in the enactment of the Health Act, 2017.
- Whether an issue that was not pleaded could be introduced for the court's consideration through submissions.
- Whether the provisions of sections 16, 19 and 33 of the Health Act, 2017 and the First Schedule of the Health Act, 2017, which limited the holding of certain administrative posts to members of the Medical Practitioners and Dentists Board, discriminated against other health care professionals, including nurses and pharmacists.
- The petitions before the court did not raise employment and labour relations issues but they raised issues that sought a determination relating to the constitutionality of statutory provisions, for which the court had jurisdiction under article 165(3) of the Constitution. Therefore, the court had jurisdiction to hear and determine the matter.
- The Petition to Parliament (Procedures) Act ,2012, provided that every person had a right to petition Parliament to consider any matter within its authority, including questions as to whether Parliament ought to enact, amend or repeal any legislation. It was necessary to consider whether it was a viable remedy that the petitioner had outside the court.
- The exhaustion doctrine served the purpose of ensuring that there was a postponement of judicial consideration of matters to ensure that a party was, first of all, diligent in the protection of his own interests within the mechanisms in place for resolution outside the courts.
- Article 119 of the Constitution mandated every person to petition Parliament to consider any matter within its authority. That was one avenue for rectifying unconstitutional legislations that could have slipped through the keen eyes of parliamentarians. The remedy did not, however, oust the constitutional authority of the court to determine the constitutionality of any enactment by the legislature. Where there was a clear procedure for redress of any particular grievance prescribed by the Constitution or statute, that procedure should have been followed. However, the right to petition the court was a fundamental constitutional prescription which could not be deemed to be of lesser effect than the right to petition Parliament. It was upon the parties to opt for what they deemed to be the most effective and efficient remedy. There was no merit in the assertion by the 1st and 2nd respondents that the petitioners failed to exhaust a statutory remedy.
- Public participation was a constitutional dictate recognized in article 10(2)(a) of the Constitution. At paragraph 36 and 37 of the 1st petitioner's petition the issue of lack of public participation in the enactment of the Health Act was mentioned in passing. The issue was mentioned casually and the manner in which it was violated was not specified. It was in the submissions where it was explained that the Legislature did not take into account the petitioner's views. The petitioners conceded that the Legislature called for the views of the public with respect to the impugned legislation and the petitioners expressed their views. The legal position with respect to public participation was that the Legislature had to facilitate public involvement in its enactments but that did not mean that any particular view that was expressed had to prevail.
- The 2nd petitioner's submission included the assertion that the public was not given enough time to present its views as part of public participation but the argument had to fail. The issue was not pleaded but it was introduced through submissions and submissions could not replace pleadings. The petitioner did not give particulars as to how much time was actually given for purposes of public participation in order to assist the court to make a reasonable determination on that issue.
- In determining the constitutionality of a given provision of a statute, the court had to consider its purpose and effect on constitutional provisions. If its purpose did not infringe a right guaranteed under the Constitution, the court had to examine the effect of its implementation. If either the purpose or effect of the statute infringed on a right guaranteed by the Constitution, the impugned statute or section had to be declared unconstitutional.
- The cardinal rule of statutory interpretation was that a statute should be construed according to the intention expressed in the statute itself. The intention of a statute could be identified through a number of factors. Reference could be made to the precise words used, their particular documentary and factual context and, where identifiable, their aim and purpose.
- The right not to be discriminated was recognized in article 27 of the Constitution and a number of international and regional instruments. For example, article 26 of the International Covenant on Civil and Political Rights (ICCPR) which inter alia provided that all persons were equal before the law and were entitled without discrimination to equal protection of the law. Further, article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provided that State Parties undertook that the rights enunciated in the Covenant would be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
- It was sometimes necessary to treat people differently in order to achieve equality. Different treatment would not amount to discrimination if the criterion for differentiation was reasonable and objective. Equality before the law required that persons should be treated uniformly unless there was some valid reason to treat them differently. Therefore, it was necessary to determine whether there was a discernible justification in the Health Act 2017 for excluding members of the petitioners from occupying certain posts created under the Act. Lack of a justification would mean that the impugned provisions were discriminatory.
- There was no attempt by any of the respondents to explain and justify why certain posts in the health care system were preserved for medical practitioners registered by the Medical Practitioners and Dentists Board. It was not the case that the respondents were not aware that health care professionals were registered under various organisations. It had not been demonstrated that members of the Medical Practitioners and Dentists Board had unique administrative skills not available to the members of the petitioners hence justifying the reservation of the managerial positions to its members. The differentiation introduced in the impugned provisions was unreasonable as there was no valid reason to treat health care providers and health care professionals differently yet they all served in the same health care system with the aim of attaining the goals identified in the Health Act, 2017. Accordingly, the impugned provisions of sections 16, 19 and 33 of the Health Act, 2017 violated article 27 of the Constitution and were therefore unconstitutional.
- The First Schedule of the Health Act, 2017 provided a technical classification of levels of healthcare delivery. The problem with the Schedule was that it limited the managers of certain facilities to registered clinical officers and medical officers. The affected offices were not defined in the Act and that could easily lead to the exclusion of the members of the petitioners from managing the health care facilities at the different levels. The First Schedule of the Health Act was unconstitutional only to the extent that it locked up jobs for a specified group of health care providers or professionals.
- Section 6 of the Health Act which provided for reproductive health care and certain procedures to be done by a health professional with formal medical training at the proficiency level of a medical officer, a nurse, midwife, or a clinical officer who had been educated and trained to proficiency in the skills needed to manage pregnancy-related complications in women, and who had a valid license from the recognized regulatory authorities to carry out that procedure. The petitioners had not discharged the burden of proving that the provision was discriminatory.
- Section 45 of the Health Act, 2017 established a statutory body known as the Kenya Health Professions Oversight Authority. Section 48 of the Act provided for the functions of the Authority. No reason was advanced as to why the provision should be found to be unconstitutional. Therefore, section 45 of the Health Act was constitutional.