An Act of Parliament to to make provision for the training, registration, and licensing of community health workers, to regulate their practice and to provide for the establishment, powers and functions of the Community Health Workers Council of Kenya.
| PROPOSED PROVISION FOR AMENDMENT | PROPOSED AMENDMENT | OUR COMMENTS |
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| PART I-PRELIMINARY | ||
Clause 2 Interpretation | “certificate” means a certificate of registration issued by the Council to a person entitled to be registered under this Act. | A certificate of registration serves as evidence that the person has successfully completed the necessary education and assessment required for that profession. This helps maintain professional standards and protects members of a community from unqualified persons. |
“community health unit” means a health service delivery structure within a defined geographical area covering a population of approximately five thousand people. | A community health unit focuses on delivering accessible and comprehensive health care services to meet the specific needs of the communities they serve. |
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“community health worker” means a person who: a. resides in a particular community health unit; b. is selected by the members of that community health unit; c. undergoes a prescribed course of training in a training institution, is a holder of a certificate issued by that institution and is registered under this Act; and d. after the prescribed training, continues to reside in that community health unit while offering services to that community health unit. | Community health workers serve as a bridge between communities and formal healthcare systems as they understand the cultural, social, and economic contexts of the communities they serve. | |
“register” means the register of community health workers which the Registrar is required to maintain under section 19. | A register helps verify the credentials, training, and experience of community health workers, ensuring that they possess the necessary skills and knowledge to provide effective and safe health care services. |
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PART II- ESTABLISHMENT, FUNCTIONS AND POWERS OF THE COMMUNITY HEALTH WORKERS COUNCIL |
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Clause 3 Establishment of the Council | There is established a Council to be known as the Community Health Workers Council. The Council shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of: a. suing and be sued; b. taking, purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property; c. borrowing money or making investments; d. entering into contracts; and e. doing or performing all other things or acts necessary for the proper performance of its functions under this Act, which may lawfully be done or performed by a body corporate. | The purpose of this clause is to give the Council legal capacity to act in its own name. |
Clause 4 Headquarters of the Council | The headquarters of the Council shall be in Nairobi. | We propose the addition of a sub-clause that states as follows: “The Council may establish additional offices outside Nairobi”. This proposal ensures compliance with Article 6 of the Constitution which ensures reasonable access to the Council’s services in all parts of the country. |
Clause 5 Functions of the Council | The Council shall perform the following functions: a. assess the qualifications of community health workers; b. ensure the maintenance and improvement of the standards of practice by community health workers; c. establish a professional code and supervise the professional conduct and practice of community health workers; d. take the necessary disciplinary measures in cases of violations of professional conduct and discipline; e. maintain the register and keep a record of all community health workers registered under tis Act; f. collaborate with other bodies such as the Medical Practitioners and Dentists Board, the Central Board of Health, the Clinical Officers Council, the Nursing Council of Kenya and the Pharmacy and Poisons Board, in furtherance of the functions of the Council and those bodies; g. advise the Cabinet Secretary and county governments on community health matters; and h. consider and deal with any other matter pertaining to community health workers including prescribing badges, insignia or uniforms to be worn by community health workers. | The Council’s functions are clearly stated to prevent the Council from performing tasks that are ultra vires. |
Clause 6 Membership of the Council | The Council shall consist of: a. the Director General of health or a representative designated in writing; b. the Head of Primary Health care from the ministry for the time being responsible for matters relating to health; c. the Director of Education or a representative designated in writing; d. one person from a non-governmental organization in the health sector nominated by the Non-Governmental Organization Coordination Board; e. one registered community health nurse nominated by the Nursing Council of Kenya; f. one lecturer in community health from the department dealing with community health, nominated by the Kenya Medical Training College; g. one community health worker nominated by the Cabinet Secretary; h. one community health worker nominated by the Council of County Governors; and i. the Registrar who shall be an ex-officio member of the Council. The Chairperson shall be appointed by the Cabinet Secretary from amongst the members under paragraph (g). A person shall not be qualified for appointment as a member of the Council under sub-section (1) (f) and (g) if the person: a. has been and remains removed from the register or his or her registration, enrolment or licence has been suspended under section 27 (a) and (b); b. has been removed from public office for contravening the Constitution or any other law; or c. is an undischarged bankrupt; All appointments shall be notified in the Gazette. | For sub-clause (3) we propose that a person who fails to meet the requirements stipulated in Chapter 6 of the Constitution shall not be appointed as a member of the Council. Chapter 6 of the Constitution contains principles and standards of conduct applicable to state officers in execution of their duties. In Trusted Society of Human Rights Alliance v the Attorney General & 2 others (2012) eKLR, the Court stated that the provisions of chapter six of the Constitution were not merely suggestions. The people of Kenya expected the provisions of chapter six to have a substantive bite. |
Clause 7 Term of office | The members appointed under section 6 (1) (e), (f) and (g) shall hold office for a term of three years and shall be eligible for reappointment for one further term only. | By stating the terms of appointment in a statute, it ensures clarity and transparency in the appointment process. This leaves no room for ambiguity or misinterpretation regarding the terms and conditions under which an individual is appointed to a specific position. |
Clause 8 Vacation of office | A member of the Council, other than an ex-officio member, shall cease to be a member of the Council if such person: a. is unable to perform the functions of the office by reason of mental or physical infirmity; b. is adjudged bankrupt; c. is convicted of a criminal offence and sentenced to a term of imprisonment of more than six months; d. is absent from three consecutive meetings of the Council without good cause; e. resigns in writing by a notice addressed to the Cabinet Secretary; f. dies; or g. is removed in accordance with the provisions of the Constitution. The Council shall be properly constituted notwithstanding a vacancy in its membership. | A clause on vacation of office provides clarity and transparency regarding the circumstances under which a person’s position is considered vacant. Secondly, a clause on vacation of office allows for accountability and discipline. It outlines the circumstances under which an individual may be removed from their position due to misconduct or other breaches of professional conduct. |
Clause 11 Remuneration | The members of the Council shall be paid such remuneration, allowances and disbursements for expenses as may be approved by the Cabinet Secretary in consultation with the Salaries and Remuneration Commission (“SRC”). | This clause ensures compliance with article 230 of the Constitution. Article 230 (4) (b) of the Constitution gives the SRC power to advise the national and county governments on the remuneration and benefits payable to public officers. |
Clause 12 Staff | The Council may appoint such officers, agents and staff as are necessary for the proper and efficient discharge of the functions of the Council under this Act, upon such terms and conditions of service as the Council may determine in consultation with the SRC. | We propose that members of staff are appointed through a fair, transparent and competitive process. A fair and transparent process creates an equal playing field and prevents discrimination or bias in the selection process. This is because candidates are evaluated based on their qualifications, skills, and experience. |
Clause 13 Experts | The Council may engage the services of such experts in respect of any of its functions in which the experts have special competence. A person attending a meeting as an expert under this section may participate in any discussion at the meeting but shall not vote. | Experts and consultants possess specialized skills that may not be available internally. Experts and consultants possess specialized knowledge and experience that contribute to better decision-making, improved outcomes and enhanced organizational capabilities. For sub-clause (2), we agree with this proposal. The expert cannot vote as he is not a member of the Council. |
Clause 14 Common seal | The common seal of the Council shall be kept in the custody of the Registrar or of such other person as the Council may direct and shall not be used except on the order of the Council. The affixing of the common seal of the Council shall be authenticated by the signature of the Chairperson and the Registrar. The Council shall in the absence of either the Chairperson or the Registrar, in any particular matter, nominate one member of the Council to authenticate the seal of the Council on behalf of either the Chairperson or the Registrar. The common seal of the Council when affixed to a document and duly authenticated, shall be judicially and officially noticed, and unless the contrary is proved, any necessary order or authorization by the Council under this section shall be presumed to have been duly given. | A common seal provides a legal means of authenticating official documents and transactions. It acts as a formal signature of the Council, indicating that the document or action has been authorized by the Council. |
Clause 15 Protection from personal liability | No matter done by a member of the Council or by any officer, member of staff or agent of the Council shall, if the matter or thing is done bona fide for the purpose of executing the functions, powers or duties of the Council under this Act, render the member, officer, employee or agent or any person acting on their directions personally liable in an action, claim or demand whatsoever. Any expenses incurred by any person in any suit or prosecution brought against him or her in any court, in respect of any act which is done or purported to be done by him or her under the direction of the Council, shall , if the court holds that such act was done bona fide, be paid out of the funds of the Council, unless such expenses are recovered by him or her in such suit or prosecution. | This clause protects members of the Council from personal liability for acts done in good faith. |
Clause 16 Liability for damages | The provisions of section 15 shall not relieve the Council of the liability to pay compensation or damages to any person for any injury to him or her, his or her property or any of his or her interests caused by the exercise of any power conferred by this Act or any other written law or by the failure, wholly or partially, of any works. | We propose that compensation or damages paid by the Council shall be derived from the funds of the Council. This will be similar to clause 15 (2) where expenses incurred by a person in a suit is paid from the funds of the Council. |
PART III- REGISTRATION AND TRAINING OF COMMUNITY HEALTH WORKERS |
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Clause 17 Appointment of Registrar | There shall be a Registrar of the Council recruited and appointed by the Council through a competitive process. The Registrar shall hold office on on such terms and conditions of employment as the Council may determine. | A transparent and competitive appointment process ensures that all candidates have equal opportunities to compete for positions based on their qualifications, skills, and merit. |
Clause 18 Qualification of the Registrar | A person shall qualify for appointment as the Registrar if that person: a. is a citizen of Kenya; b. has a minimum of a degree from a university recognised in Kenya; and c. is a registered community health worker with at least ten years’ experience in community health. | Clearly stating the qualifications of a vacant position attracts candidates who possess the necessary skills, knowledge and experience required for that role. It provides potential applicants with a clear understanding of the specific qualifications they require to be considered for the position. This helps streamline the recruitment process by targeting individuals who are most likely to meet the requirements. |
Clause 19 Functions of the Registrar | The Registrar shall: a. receive applications for registration; b. advise the Council on matters relating to the profession; c. keep and maintain a register of community health workers; d. publish in the Gazette a list of names, addresses and qualifications of the registered community health workers not later than 31st March in every year, and e. subject to the directions of the Council, make any necessary alterations or corrections in the register in relation to an entry including the deletion of names of community health workers who have died and entries which have been fraudulently or incorrectly made. | The Registrar’s functions are clearly stated to prevent the Registrar from performing tasks that are ultra vires. For clause 19 (d), publishing names in the Gazette notifies the public of qualified community health workers. |
Clause 20 Particulars of the register | The register shall contain the following particulars of community health workers: a. name and address; b. qualifications of the community health worker; and c. place of business or employment of the community health worker. A community health worker shall notify the Registrar of any change of particulars. | For sub-clause (2), we propose that the Registrar is informed of any change of particulars through e-mail or a written letter. The use of e-mail and letters prevents misunderstandings as they are a permanent record which the Registrar can refer to in the future. |
Clause 21 Inspection of the register | Any person may inspect the register and any documents relating to any entry, and may obtain from the Registrar, a copy of, or an extract from the register on payment of the prescribed fee. | Inspecting the register allows for verification of the community health workers’ qualification, training, and credentials. Regular inspections of the register ensures that only qualified individuals are included, maintaining a high standard of care within the community. |
Clause 22 Registration and effect of registration | A person shall be qualified for registration if he or she: a. has successfully undergone a prescribed course of training at an approved training institution; b. has applied for registration in the prescribed form; c. has paid the prescribed fees for registration; d. has engaged in training under the supervision of a registered community health worker for such period, being not less than one year or such period as the Council may prescribe; and e. is a fit and proper person to be registered. Any person who is aggrieved by the decision of the Council not to register him or her may appeal to the High Court within sixty days of such refusal and the High Court may confirm, annul, or vary the Council ’s decision. The Registrar shall, with the approval of the Council, issue to every person registered under this Act a certificate of registration in the prescribed form. | Sub-clause (2) is silent on whether the High Court’s decision is final. We propose that the High Court’s decision should be final. This proposal ensures that litigation proceedings are brought to an end. For sub-clause (3), a certificate of registration provides professional recognition to a community health worker. It acknowledges their skills, training, and qualifications, thereby validating their role as a health care professional within the community. |
Clause 24 Surrender of certificate | A person whose name is deleted from the register for any reason shall within thirty days of publication of the deletion in the Gazette, surrender his or her certificate of registration to the Council for cancellation. | We propose making it an offence if a person whose name has been deleted from the Register fails to surrender his certificate of registration to the Council within the thirty (30) days’ prescribed period. Consequently, we propose a fine of KES 1 million, imprisonment of a period not exceeding one (1) year, or to both. The addition of punishments in this clause will act as a deterrence i.e., it will ensure that community health workers whose names have been deleted from the register comply with the provisions of this clause. |
| PART IV-DISCIPLINE | ||
Clause 26 Establishment of a Disciplinary Committee | There is established the Community Health Workers Disciplinary Committee (“the Disciplinary Committee”). The Disciplinary Committee shall consist of: a. the Chairperson of the Council; b. one representative of the Cabinet Secretary who shall not be a member of the Council; c. an advocate of the High Court with at least ten years’ experience appointed by the Council; d. one community health worker nominated by the Public Service Commission; and e. one community health worker nominated by the Council of County Governors. The Registrar of the Council shall be the Secretary to the Disciplinary Committee but shall have no voting power. The quorum of the Committee shall be three members. The Disciplinary Committee shall receive and investigate complaints against community health workers in accordance with the rules and regulations under this Act. Subject to this Act, the Disciplinary Committee shall regulate its own procedures. | For sub-clause (2), the Disciplinary Committee has an odd number of members to prevent instances of deadlocks arising when members vote. We propose that the Committee sits in an odd number i.e., three or five members. This prevents instances where a deadlock may be reached when even members of the Committee vote. Consequently, we propose the addition of the words “or five” immediately after the word “three” in sub-clause (4). For sub-clause (5), we propose that a template of a complaint form is provided in the Schedule of this Bill. A template enhances uniformity and ensures that important information is not omitted from the complaint form. |
Clause 27 Disciplinary powers of the Committee | The Disciplinary Committee may make the following orders against a community health worker: a. removal from the register; b. suspension of registration; or c. imposition of a fine. | In addition to the disciplinary powers listed in this clause, we propose that the Disciplinary Committee has power to compel the community health worker to pay the aggrieved person compensation or reimbursement not exceeding KES 5 million. This is similar to the amount that the Advocates Disciplinary Tribunal can compel an advocate to pay in section 60 (4) (e) of the Advocates Act. |
Clause 28 Proceedings of the Disciplinary Committee | Upon an inquiry held by the Committee, the person whose conduct is being inquired into shall be afforded an opportunity of being heard either in person or through an advocate. For the purposes of proceedings at any inquiry held by the Disciplinary Committee, the Committee may administer an oath, and may subject to any regulation made under this Act, enforce attendance of persons as witnesses and the production of books and documents. Any person whose name has been removed from the register shall forthwith surrender to the Council his or her certificate od registration. A community health worker who contravenes subsection (3) commits an offence and upon conviction, shall be liable to a fine not exceeding twenty thousand shillings. A community health worker who is aggrieved by the decision of the Council in the exercise of its powers under this section may, within sixty days from the date of the decision of the Council, appeal to the High Court. | Sub-clause (5) is silent on whether the High Court’s decision is final. We propose that the High Court’s decision should be final. This proposal ensures that litigation proceedings are brought to an end. This has the following benefits: a. it will reduce the backlog of cases in Court; and b. it will save the Court’s valuable judicial time. |
| PART V-FINANCIAL PROVISIONS | ||
Clause 29 Funds of the Council | The Funds of the Council shall consist of: a. such monies as may be appropriated by the National Assembly for the purposes of the Council; b. such monies as may be payable to the Council pursuant to this Act or any other written law; c. gifts, grants, donations or endowments as may be given to the Council; d. any funds provided by bilateral or multilateral donors, for the purposes of the Council; e. fees for services rendered by the Council; and f. monies from any other lawful source provided for the Council. | This clause indicates the methods in which the Council can use to raise funds for conducting its activities. |
Clause 31 Annual estimates | At least three months before the commencement of each financial year, the Council shall cause to be prepared estimates of revenue and expenditure of the Council for that year. | The annual estimates determine how much money will be allocated to the Council. |
Clause 32 Accounts and audit | The Council shall cause to be kept proper books and records of accounts of the income, expenditure, assets, and liabilities of the Council. Within the period of three months after the end of each financial year, the Council shall submit to the Auditor General, the accounts of the Council in respect of that year together with: a. a statement of income and expenditure during the year; and b. a balance sheet of the Council on the last day of that year. The accounts of the Council shall be audited and reported upon in accordance with the provisions of the Public Audit Act. | This clause ensures that monies spent and raised by the Council can be tracked and accounted for. We propose that the Council keeps records for a period of seven years before they are disposed by way of recycling. This mode of disposal ensures compliance with Article 42 of the Constitution. |
Proposed clause to be added to the Bill Remuneration | We propose that community health workers are paid monthly remuneration by the National Government. | Currently, community health workers serve as volunteers with no regular stipend or remuneration. This is a good proposal as community health workers will be integrated into the national government’s payroll. This is because community health workers play a vital role in providing health care services at the community level. |