The nation continues to watch as the National Health Insurance Fund is embroiled in controversy over how a certain Clinix Healthcare Ltd received Sh202 million for treating civil servants, of which Sh91 million went to non-existent or ‘ghost’ clinics. Understandably, everyone is interested in knowing who are the directors and shareholders of Clinix Healthcare Ltd. However there is a larger issue that we must grapple with, that of responsibility. Responsibility here must be seen in two ways: collective and individual. Collective responsibility means that because of the actions of a greedy few within NHIF, both its Board and Management owe Kenyans Sh202 million. By extension, the government through NHIF’s parent ministry: Ministry of Medical Service is also responsible since it failed to regulate, supervise and monitor the goings-on at the embattled health parastatal.
But to many the more pivotal question is that of individual responsibility.
During the Nuremberg Trials, Nazi German officers who committed war crimes could not rely on the excuse of superior orders. Since then, international law recognizes that there are certain crimes whose commission cannot be excused simply on the grounds that you were a soldier carrying out orders handed down by your commanding officers. For instance if your superior asks you as a junior officer to execute non-combatant women and children, your failure to disregard those orders as illegal and immoral will be held against you. In essence, the law is placing an important emphasis on individual conscience.
Returning back to the NHIF fiasco, I see this idea of individual conscience being applicable, particularly to the members of the Board. Each of those members represent key stakeholders in the health sector and have both a legal and ethical duty to ensure that the mandate and objectives of the Fund are not circumvented.
Apart from piercing the corporate veil of Clinix, minutes of the Board meetings must also be made public so we may learn how such decisions were reached by Board members who are meant to be representing the interests of Kenyans within their various government entities. As we know, our laws all expressly provide for a composition of Boards of State Corporations that includes all key stakeholders, relevant experts and interested parties. In this regard, the law envisages a constructive tension within most statutory Boards where competing views and interests are in play and ultimately the majority vote is deemed to be the collective voice of the Board. This concept of constructive tension is in line with the Constitution which requires that the State promotes democracy, inclusiveness and participation. That said, the Public Officers Ethics Act recognizes that any Board Member has the option to dissent from any majority decision of the Board and insist that this dissent is recorded in the minutes of the Board. Therefore, copies of the minutes of the meeting where Clinix was discussed should laid open for public scrutiny. It would be interesting to know what information the Board relied on to allocate the funds to Clinix and more importantly whether there was unanimous consensus that Clinix was the most suitable choice.
Therefore, access to the relevant minutes of NHIF’s Board meetings would allow Kenyans to determine the extent to which their fundamental rights and freedoms under the Constitution (particularly life, dignity and health care services) have been affected. Article 35 on Access to Information provides that the State must publish and publicise any important information affecting the nation. However despite having article 35, there is no enabling legislation to-date setting out the procedures and rules to be followed when disclosing information held by the State. One of the important questions this enabling legislation would have to address is whether Kenya should have an own-initiative disclosure system or a request-based system vis-à-vis access to information in the hands of either a public or private entity. In the absence of such a law, Kenyans are strongly encouraged to invoke Article 35(3) as cited above, which requires that the State must publish and publicise important information such as the minutes of NHIF Board meetings as well as any other information they have on Clinix.
While on the subject of disclosure of information, we must agree that government officials owe an ethical duty to the bodies they represent on these Boards. Therefore, government officials that sit on Boards must desist from making attention-seeking press conferences, idle finger-pointing or even asking other government officials to resign. If the public officer comes across damning information while sitting on a Board, he or she must use the proper channels for disclosing the matter within the organisation first instead of always rushing to the media. The law could step in and provide rules and procedures for disclosures by public officers made to serve an overriding public interest.
Therefore the Official Secrets Act should be found to be unconstitutional to the extent that it provides that any person who leaks confidential information regardless of its content or nature is guilty of a criminal offence. This Act criminalises disclosure of information by a public officer and does not provide any exceptions even on the grounds of public interest and/or individual conscience.
To sum up, we must be able to see past the murmurs that the funds from NHIF are being used to finance political campaigns. The real issue here is that we have dozens of State Corporations just like NHIF with similar Board structures making important decisions that will affect our lives in one way or another. So the challenge lies with us to ensure that a proper legal and institutional framework is in place to ensure that these State organs are properly constituted and remain at all times open, accountable and transparent. More importantly, the duty to monitor, regulate and evaluate the actions of these State organs should not simply be left to the State. Individual and collective responsibility does not only bind the decision-makers in government, it also compels citizens to be actively involved. Interested individuals must always insist on being consulted and fully participating in public affairs that will ultimately impact on their lives. However, in order for this participation to take place in a meaningful way, the law must provide a suitable mechanism for access to information for all.