Call for Participation in Pre- Budget Forums: Pointers to Note

Raphael Muya
Post Date: 27 January 2021

The IEA – Kenya pre-budget forum is a platform that seeks to influence government decisions and help civil society develop viable alternatives to government policy. Equally, it provides a complementary avenue for deepening participatory budgeting, given the legal basis for public participation in government planning and budgeting processes. This year's pre-budget forum will be held Virtually on 27th and 28th January 2021. This is the time to share views and proposals for consideration by the National and County Treasuries either expenditure or tax oriented. 

Application of Competition Law in Kenya’s Public Sector: The Case of Kenyan Health Sector

Leo Kipkogei Kemboi
Post Date: 22 January 2021

By Leo Kipkogei Kemboi 

The article is written in commemoration of the World Competition day whose theme in 2020 was competition policy and access to health care . The main goal of the international competition day is to ensure that consumers from across the world realise the potential benefits from an effectively implemented competition regime, and also play their role in making competition regimes work worldwide . 

In the analysis, I find that failure to observe competition principles in the Constitution of Kenya and various statutes led to the loss of economic welfare. Global production of COVID19 supplies was being ramped up across the global value chains and hence there were various opportunities for the agency in charge of supplying the medical supplies to competitively source for them. The health crisis made Competition policy to be at the centre of the current COVID19 crisis because of the present competition concerns on the supply chain. I also show that by entity in charge of health in choosing  one form of purchasing COVID19 supplies led to inefficient trade-offs. 

Health care is a shared function between two levels of government with health policy and management of referral hospitals being the only function that the national government has remained with as per the Fourth Schedule of the Constitution of Kenya. Article 43 (1) says that every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.

The Constitution of Kenya 2010 emphasizes the importance of Consumer rights. Article 46 of the CoK 2010 lists out rights of consumers whose application is applied to both public and private entities. Under the fourth schedule, the function of Consumer protection, including standards for social security and professional pension plans. Reading the Competition Act together with Constitution, it’s clear the regulation of competition issues is left at the hands of the Competition Authority of Kenya.

Most of the competition concerns around government procurement were exacerbated by the COVID19 pandemic. Government is a big player in the provision of health services. At the start of the spread of COVID19 in Kenya, the Kenya Medical Supplies Authority(KEMSA) was engaged in the purchase of the non-pharmaceutical supplies which were urgently needed by medical personnel and the whole population generally. KEMSA is a monopoly by design because all government purchases have to be made through it and they are required by law to have strategic resource of medical supplies for at least 6 months . The purchases made by KEMSA were later confirmed by the Auditor General to have breached the constitution, the procurement law and other Kenyan laws . Kagume and others (2019) find that health sector was among the top six funded in the national government but with greater share of resources being queried by the Auditor General for being unlawful expenditures . The purchases made by KEMSA also violated Kenya’s competition law in the several ways as detailed below. 

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