ministry of health and child care - ministry …...hsb health services board imt inter-ministerial...

24
MINISTRY OF HEALTH AND CHILD CARE Northern Region Workshop Report on the Alignment of Legislation to the Constitution of Zimbabwe 2013: Health Service Act [Chapter 15:16] Holiday Inn, Harare 22 & 23 March 2017 Prepared By: INTER-MINISTERIAL TASK-FORCE ON THE IMPLEMENTATION OF THE CONSTITUTION (IMT) TECHNICAL COMMITTEE

Upload: others

Post on 07-Apr-2020

2 views

Category:

Documents


0 download

TRANSCRIPT

Page 1: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

MINISTRY OF HEALTH AND CHILD CARE

Northern Region Workshop Report on the Alignment of

Legislation to the Constitution of Zimbabwe 2013:

Health Service Act [Chapter 15:16]

Holiday Inn, Harare

22 & 23 March 2017

Prepared By:

INTER-MINISTERIAL TASK-FORCE ON THE IMPLEMENTATION OF THE

CONSTITUTION (IMT) TECHNICAL COMMITTEE

Page 2: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

Acronyms

AHFOZ Association of Healthcare Funders of Zimbabwe

CALR Centre for Applied Legal Research

CWGH Community Working Group on Health

HPAZ Health Professions Authority of Zimbabwe

HSB Health Services Board

IMT Inter-Ministerial Taskforce on Alignment of Legislation to the

Constitution

MoHCC Ministry of Health & Child Care

MoJLPA Ministry of Justice Legal and Parliamentary Affairs

MoPSLSW Ministry of Public Service, Labour and Social Welfare

ZINA Zimbabwe Nurses Association

ZHRC Zimbabwe Human Rights Commission

ZLHR Zimbabwe Lawyers for Human Rights

ZPCS Zimbabwe Prisons and Correctional Services

Page 3: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

2

Table of Contents 2. STAKEHOLDER PARTICIPATION ............................................................................................ 3

2.1 Programme of the Workshop ................................................................................................ 4

3. DAY 1 PROCEEDINGS ............................................................................................................... 4

3.1 ....................................................................................................................................................... 4

3.1 Opening Remarks ......................................................................................................................... 4

4. CLOSE OF DAY 1 .......................................................................................................................... 14

5. DAY 2 PROCEEDINGS ................................................................................................................. 14

5.1 Thematic Group Discussions & Report Back ........................................................................... 14

5.2 Plenary session ........................................................................................................................... 19

6. CONSOLIDATION OF SESSION PROCEEDINGS AND WAY FORWARD ....................... 22

Page 4: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

3

1. INTRODUCTION

In May 2013, Zimbabwe adopted a new Constitution. As a result of the enactment of the new

Constitution, existing legislative provisions which were founded in line with the old

Constitutional are unconstitutional, and are in need of being aligned with the provisions of

the Constitution of Zimbabwe. The Ministry of Justice, Legal and Parliamentary Affairs

(MoJLPA) has been tasked with the role of coordinating the process of alignment of

legislation with the new Constitution in terms of Section 324 which provides that ‘all

constitutional obligations must be performed diligently and without delay.’

In pursuit of this, the MoJLPA with the technical support of the Centre for Applied Legal

Research (CALR) established an Inter-Ministerial Task force on the Alignment of Legislation

to the Constitution (IMT) as an institutional platform to facilitate the implementation of the

Constitution of Zimbabwe to ensure that all legislation is consistent with the Constitution.

The overall objective of the IMT led project entitled ‘Implementation of the Constitution in

Zimbabwe: Supporting the Constitutional Legislative Alignment Process’ is therefore to

support the Constitutional Legislative Alignment Process in Zimbabwe.

The Ministry of Health and Child Care (MoHCC) submitted a request for support to the IMT

in aligning the Health Service Act [Ch. 15:16]. The Ministry had identified legislative gaps

therein that are inconsistent with the Constitution and International Conventions and Treaties

relating to the health service and had outlined these in a Discussion Paper, which was

submitted to the IMT Technical Committee. The project supported the holding of

stakeholder consultation workshops to obtain stakeholder input on the Discussion Paper. The

Northern Region stakeholder consultation workshop was held at Holiday Inn Hotel in Harare

on the 22nd and 23rd of March 2017.

2. STAKEHOLDER PARTICIPATION

Stakeholders that participated in the consultative workshop were composed of various

government Ministries (MoHCC, MoJLPA, MoPSLSW), Community Working Group on

Health, Health Service Board, Zimbabwe Nurses Association, Allied Health Professionals

Council of Zimbabwe, Citizens Health Watch, IMT, Office of the President and Cabinet

Health Advisor’s Office, Pharmacist Council of Zimbabwe, Medical Rehabilitation Council,

Page 5: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

4

Environmental Health Practitioners Council, Provincial Medical Directors (PMDs) and

District Medical Officers (DMOs) from the Northern region of Zimbabwe, representative of

various public hospitals, Zimbabwe Lawyers for Human Rights, Women and Aids Support

Network, Albinos Trust of Zimbabwe, Combined Harare Residents Association as well as

media representatives (Star FM, ZiFM, Newsday, Herald, New Ziana) Fig Multimedia and

CALR.

2.1 Programme of the Workshop

The workshop was held over a two-day period. The programme is attached hereto marked as

Annex 1.1

3. DAY 1 PROCEEDINGS

3.1 23.1 Opening Remarks

The Principal Director Policy and Planning of MoHCC gave the opening remarks on behalf

of the Permanent Secretary, MoHCC. Participants were welcomed to the Northern Region

consultative workshop on the alignment of the Health Service Act to the Constitution. He

outlined the background of the Commission Review into the Health Sector, which was

established in December 1997 by His Excellency the President..

Amongst their terms of reference, the Commission was expected to look into the human

resource health management systems in the public sector, including the review of the role of

the Public Service Commission in the recruitment, appointment, promotion and determination

of conditions of service for health professionals. Following extensive consultations

nationally, regionally and internationally, the Commission recommended the creation of the

Health Service Commission, which would consist of a chairperson and 9 – 12 members

drawn from professional associations and the private sector, all appointed by the President.

This had birthed the creation of the Health Service Board through the Health Service Act

(Chapter 15:16) in 2004.

1 The Workshop Programme

Page 6: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

5

The Permanent Secretary further underscored the importance of involving citizens in the law

making process, particularly health workers in this instance since they were the backbone of

Zimbabwe’s healthcare system.

3.2 Update on the Constitutional Alignment Process The Principal Law Officer of Constitutional and Parliamentary Affairs from the MoJLPA

outlined the process of constitutional alignment, highlighting the stages that had to be

followed in aligning each Act and the role that the IMT played since its creation in October

2014. He noted the progress that had been made thus far and shared with participants a list of

Bills that were now at the consultative stage.

4. OBJECTIVES OF THE WORKSHOP The Legal Advisor of the Health Service Board (HSB) outlined the objectives of the

stakeholder consultative workshop, which primarily consisted of bringing together key

stakeholders with an interest or expertise in the area to converge to share ideas on how best to

align the Health Service Act with the Constitution of Zimbabwe and also giving them an

opportunity to participate in the law reform process. The workshop would also allow

participants to be made aware of the IMT’s work generally and to be updated on the ongoing

alignment of other pieces of legislation.

He noted that the current Health Service Act was promulgated in 2004 and so it was not

consistent with the new Constitution of 2013 in some respects. Thus, in the spirit of achieving

transformative constitutionalism in the health service sector, the resultant aligned Act should

be a legitimate product, owned by both internal and external stakeholders. He further

expressed the hope that these consultations would not be a once-off exercise but an ongoing

process.

5. OVERVIEW OF THE HEALTH SERVICE ACT A Legal Officer from the Health Service Board gave a brief background of the history of the

Health Service Act. He noted that the recommendation to the President in 1999 had been for

the formation of a Health Service Commission not a Board so structurally and operationally,

there was a need to interrogate why it was not created as a commission in 2004 as

recommended in the report. Emphasising the differences in the two types of entities, he also

Page 7: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

6

noted that there was widespread confusion regarding the Board’s status and also the corporate

status of hospital management boards and whether they should be regarded as a government

entity or a private/independent institution, hence there is need for clarity in that regard. For

example, whereas commissions reported to Parliament directly, the HSB has to report

through the Minister. The unfortunate result had been that the HSB could not independently

move quickly to address issues that were arising in the Health Service and they would get tied

up in the red tape and bureaucracy of the Ministry of Health and Child Care.

5.1 Constitutional provisions relating to the alignment of the Health Service Act The Director of Pathology Services from the MoHCC went through the relevant

Constitutional provisions in detail in order to assist participants to see which areas needed to

be captured in the new Health Service Act.

He advised the meeting that Commissions are generally constitutional bodies, but not always

(like the Sports & Recreation Commission), so there are different types: independent (such a

as the Human Rights Commission, Media Commission, Gender Commission) and executive

(such as the Civil Service Commission, Defence Commission, Police Commission and Land

Commission). The question that needed to be answered therefore was where the HSB

belonged in terms of being a Commission.

He looked at the Civil Service in terms of section 199 of the Constitution and highlighted the

fact that health workers did not fall under the Public/Civil Service any longer but had been

transferred to the Health Service, which means that technically they were not civil servants

but health servants. The anomaly however was that the Minister and the Permanent Secretary,

who were the responsible officers for the Ministry and also the HSB, even for accounting

purposes, were not themselves members of the Health Service but were civil servants. It was

therefore imperative to clarify the relationship between the Ministry and the Board.

The presenter also extracted principles of public administration, public finance management,

labour rights, as well as the composition and governance of other boards and commissions (as

comparisons with the Health Service Board). He emphasised the importance of aligning

every provision in the current Act with the Constitution to avoid gaps in the law.

Page 8: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

7

5.2 Plenary session In the ensuing discussions, participants made the following comments:

Issue/Comment Responses

Participants raised concerns over why health

workers were moved away from

Civil/Public Service.

Health workers would go on strike &

negotiate with the Ministry of Public

Service and agree, but they could not

implement an increase for health workers

alone as it would mean an increase of all

civil service salaries, for which there were

insufficient resources. Public Service

resorted to using allowances as a

workaround but they were piling up plus

they were not pensionable, whereas the

salary was. So this was a technical

impediment. So it was recommended that

they have their own Health Service to get

around this technicality.

The participants agreed with the sentiments

expressed but expressed that it was not

purely about workers and their money.

There were issues that relate to operations &

decisions peculiar to the health sector. As

early as 1985, some decisions had been

made then that the health sector should

stand alone. The urgency to deal with

health-related issues was not present in the

overall Public Service Commission, eg re-

training another cadre of nurses &

pharmacists after they had been taken to UK

by the planeloads. PSC would want long

explanations as they were not aware of the

critical issues, or at least pretended that they

Page 9: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

8

were not aware. They wanted to be

convinced as Commissioners. This can be

too long a process when people are dying

due to lack of medical staff.

The Board also came up with a

remuneration grading system once which

was approved but was never implemented or

funded, such that funding issues remain

problematic. This should be incorporated in

this alignment process.

Emphasis was placed on concentrating on

substance and not just the name. For all

practical & functional purposes, the Health

Service Board is an executive Commission.

Are all Commissions not chaired by the

same people at the end of the day (Civil

Service Commission)? It appears to be that

way from the previous executive

commissions.

It was submitted that there is a Chairperson

on the Board.

The presenter submitted that there is need to

distinguish between powers exercised by the

HSB and those that a Commission can

exercise. It is on this basis that the

participants would determine what to

include in the Amendment Bill. The idea

was to focus on the function more than on

the name. .

Some participants submitted that they would

have liked to see the HSB appear in the

Constitution.

The HSB is already included in the

Constitution, under section 199(e). A

Constitutional amendment would have to be

made to specifically mention HSB, which

itself is an uphill task and must be justified.

In reality, it may not be necessary.

Page 10: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

9

Participants raised concerns over the

different meanings attached to the words

“restrict” & “forbid” (under labour rights).

“Essential service” doesn’t seem to mean

much compared to other public workers, so

why can they not strike? Participants

submitted that their pay dates are always

moved just like everyone else. Let the

essential nature of health workers be seen

by improvement of conditions of service.

Drafting is a complex process and not every

single word cannot be defined. That is

where the courts come in, to provide such

interpretations of the law, especially

constitutional issues.

Lit was submitted that the process is about

alignment to the Constitution, which is the

primary focus. But at the same time, process

could be used to redefine and clarify other

issues.

The fact that health workers are not allowed

to strike is not right and is a huge

disadvantage. There is need to improve in

terms of salaries etc. to reduce the need to

strike as well.

There is need to separate money issues from

the inherent value of human life. Health is

essential because of the sanctity of life and

no amount of money will ever be sufficient

for the work done by doctors.

It may not work to make it free for all.

Clarification – section 104 of the Labour

Act allows essential service providers to

strike in certain circumstances only.

Emphasis was placed on the need to dissect

the key issues, such as being given the right

tools, appreciation, etc. which will go a long

way to make their lives better. Further

emphasis was placed on the need to have a

serious look at the establishment as the

Page 11: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

10

Participants agreed that it is important that

essential services do not go on strike,

however, if people are have set in their

minds to be on strike it is difficult to address

They should not do their job at a

disadvantage, at their own expense.

What can be done, even without enough

money?

It will be critical to capacitate the HSB, to

give it funding, to give it teeth. The rest of

the issues coming up now will then follow

on from there.

system was put in place a very long time

ago and needs to be seen from a modern

perspective.

Essential is equated to being there.

Some of the other aspects raised by

participants were for the bipartite

negotiations.

Is it possible to have an independent Board?

What is the role of the board? Parent,

protector, mediator? Especially on the

aspect of strikes and collective action.

The role is similar to that of the employer,

an agency that employs health workers on

behalf of government. This role includes

management, training & development,

discipline. These functions are resident in

the HSB but can be delegated to lower

levels. If the Board needs to make decisions

with financial implications, they need to

have Ministry approval because the

paymaster is the same – government. The

Board also needs to be adequately funded

Page 12: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

11

Let the Constitution be amended to make

the HSB a Commission, even if it is a long

process, so that it can be properly funded.

and resourced, including personnel, just as

the Ministry needs to be adequately

resourced to ensure the right to healthcare.

I

IFunding the Board will not directly benefit

workers

Whether Commission or Board, there is one

Consolidated Revenue Fund where all

moneys come from and go to for

disbursement. Section 76(4) of the

Constitution on the right to healthcare: the

aspect of progressive realization is key. The

effort must be seen and there is need to

establish benchmarks even financially.

Participants continued the discussion and raised the following aspects:

Issue/Comment Response

There needs to be clarity on the list of who

is essential.

On list of essential people in terms of

statutory instrument….. All those people

registered/regulated by councils, e.g. the

people covered by the Health Professionals

Councils – those people should also be

included in that list. Also those that train

other cadres should also be included.

hat SI might have been overtaken by events

and other categories of people ought to be

included. There is need to revise that list to

reflect all essential workers working in the

health sector, make the list exhaustive. The

SI falls under Ministry of Public Service so

that also needs to be managed.

Confusion as to whether Labour Act refers

to health workers too.

Concerns were raised on whether it would

not be more prudent to not have a list but to

refer to those regulated by the Health

Professions Act as amended from time to

Page 13: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

12

time, to make the definition/reference more

flexible for the future?

However that still leaves others like general

hands who are not listed anywhere but

actually are also essential.

The current Board has 2 or 3 nurses,

f how long does someone remain a nurse

and what criteria is used to appoint those

nurses?

t was noted that there is need to address the

issues looking ahead not backwards. But

their ability & documented wealth of

experience is definitely a factor.

Nevertheless, those are some of the

refinements that must be articulated and be

part of the legal framework.

On the balance of skills on the HSB, Human

Resources expertise is also important

especially since the core business is being

the employer and human resources issues

are always coming up. There is a need for at

least 1 or 2 human resources practitioners

on the Board, along with the other skills

being considered.

Is there a maximum number of board

members? There must be at least one

representative of different disciplines across

the healthcare spectrum on the board

On Hospital Management Boards (HMBs),

from a district hospital perspective – it is an

important board which has power to hire

and fire so they need to have the relevant

expertise.

Can one easily find/locate this expertise for

those hospitals that are in the bush, to allow

the board to function? Is the statutory

instrument perhaps more workable than the

HMB set up? (The Community Health

Councils – SI…of 2000)

T.

On the function of the Chair of the HSB & There are no clear provisions in the current

Page 14: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

13

the Executive Director (ED) – does the Act

provide for the post of the ED and what are

the functions listed, so that they do not clash

Act but referred to in section 10(1) & (2).

Where the Chair is highlighted, it should

actually be the Executive Director.

It was suggested that there can either be the

Chairman without the executive

function/power and the Executive Director,

or the Executive Chair without the

Executive Director but working with the

Secretariat.

Participants submitted that on proposal for

finance controls, handling of accounts – as

far as public finance is concerned, the

Public Finance Management Act is the

overarching Act. What more can be added

in the Health Service Act in that regard?

It was stated that there is need to include

both internal & external auditing (Public

Accountants and Auditors Board)

Stakeholders noted that the Constitution is

encouraging good governance but the Act is

not clear on how the HSB conducts its

business or arrives at its decisions. It is not

clear/documented, which is a big gap. There

need to be guidelines created on how they

conduct their business.

It was stated that the Second & Third

Schedules of the Act attempt to speak to the

procedures & operations of the Board hence

there is need to have reference to this in the

deliberations.

The Act does not talk about the structure of

the Secretariat or lay out each

office/function.

To what extent are CSOs & community

organizations represented/included on

HMB, as they represent the perspectives of

the communities which are served by that

particular hospital?

This was noted as an important point for

consideration

On freedom of association, whether even an

engineer can join/represent doctors – section

58 of the Constitution speaks to freedom of

assembly & association. Section 86, the

Page 15: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

14

limitation of rights and freedoms.

Otherwise, they are free to associate with

whoever they want.

Constitutional labour rights apply to all

citizens with no discrimination. Is the SI

saying that health workers do not fall under

the Labour Act, still constitutional then?

26. CLOSE OF DAY 1

Once the plenary session was concluded, the Director of Pathology acknowledged that there

were many issues requiring alignment as evidenced by the lively discussions, which warmed

up as the day went on. He reminded participants about the importance of the thematic group

discussions to be held the following morning where they could thrash out the issues and deal

with the contentious issues that require close scrutiny.

37. DAY 2 PROCEEDINGS

7.1 Thematic Group Discussions & Report Back Participants were put into thematic groups and discussed specific issues with a view to

coming up with concrete recommendations for lawmakers and policymakers alike. The group

questions were as follows:

GROUP 1

Comment on and make recommendations for improvement of the Act in terms of the

governance of the Health Service.

Make any other recommendations as necessary.

GROUP 2

Analyse the provisions relating to Hospital Management Boards (their constitution and

operations) and suggest improvements to the Health Service Act in that regard.

Make any other recommendations as necessary.

GROUP 3

Page 16: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

15

Discuss strategies of financing the Health Service.

Make any other recommendations as necessary.

GROUP 4

Identify the labour issues raised by the Constitution which require alignment in the Health

Service Act, with reference to relevant regional and international best practices.

Make any other recommendations as necessary.

Below is a table highlighting the discussion points and recommendations that were made by

the various groups:

GROUP 1

Governance

Health Service Act

Functions of the Board

Appoint qualified and competent board members

Include accountability, transparency

Membership of the Board

• Gender considerations –section 17(b) of the Constitution – both genders are equally

represented in all institutions and agencies of government at all levels.

• Have a full time executive chairperson and deputy chairperson.

• Minimum of two and maximum of five other members, recommended by the

Minister appointed by the President.

Delegations of functions by Board

• Appointment of Hospital Management Boards must be done by HSB in consultation

with the Minister.

Appointment of Health Service Secretariat

s10 (1) the Board shall appoint the health service secretariat headed by the Executive

Director who is an ex officio member of the Board.

Page 17: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

16

s10 (2) The Executive Director shall….

Appointments, promotions & dismissals

• s12 (4) Health Service Board Secretariat.

Second Schedule – Conditions of Service of Board Members

• s3 (1) a period of 3 years and a maximum of two terms.

• Minister not to alter the fixed period of three years.

Any other recommendations

• Section 18(1) Amend to reflect responsibility on the Ministry.

GROUP 2

Hospital Management Boards

• Remove Section 18(1), withdraw corporate status

• HSB to appoint (based on merit) HMBs in consultation with the Minister

• Composition: Community member/Community based organisation, Finance advisor,

3 with Medical Background, legal advisor. Have gender balance.

• HMBs to report to HSB

• CEO and Clinical Director/Medical Superintendent to sit on HMB as ex officio

members (secretariat)

• HMBs can recommend hiring and firing but that mandate should remain with HSB

• Hospital Management Board tenure 5 years with an option of 1more term (2nd

Schedule Section 3(1))

• Third Schedule

– Alter, improve property of hospital in consultation with Public Works

– Remove power to invest moneys not immediately required by the hospital

– Fix terms and conditions, including fees charged with Minister Health,

Finance in consultation with the HSB

Page 18: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

17

GROUP 3

Strategies for financing

According to the Constitution of Zimbabwe Section 76 provides for the right to health care.

Section 76(4) - The state must take reasonable legislatives and other measures within the

limits of resources available to it, to achieve the progressive realisation of rights set out in

this section.

Sources - Health Services Act provides for sources of revenue under section 21

• Fiscus – treasury

• Donor funding

• Health Services Fund

• Investments

Other sources – potential sources

Section 302 of the Constitution is the avenue which permits other potential sources of

revenue to be introduced through an act of parliament, which is the Health Services Act:

• Tollgates

• Carbon tax

• Tobacco

• Beverages (High energy drinks, alcohol)

• Aeroplanes

• Withdrawals

• Exportation of health

• NSSA

• Occupational health diseases

• Sales tax (VAT) - Get a small percentage by capturing everyone.

Earmark a small percentage from all the above potential sources of revenue to health.

Sections of the Constitution that speak to health issues (what should be provided)

• Section 9 (2) Good governance :The state must ensure that all institutions and

agencies of government at every level, in particular Commissions and other bodies

established by or under this constitution, are provided with adequate resources and

Page 19: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

18

facilities to enable them to carry out their functions conscientiously, fairly, honestly

and efficiency

• Section 19 (2)(b) Children : have shelter and basic nutrition, health care and social

service

• Section 29 Health services

• Section 76(4) Right to health care: The state must take reasonable legislatives and

other measures within the limits of resources available to it, to achieve the

progressive realisation of rights set out in this section

• Section 21(2)(b) Persons with disabilities: consider the specific requirements of

persons with all forms of disability as one of the priorities in development

• Section 305 (3e) separate estimate of revenue and expenditure must be given for

each of the following. Health service Board to get direct funds from the treasury.

Safeguards for management of public of public funds

• Section 308 Duties of custodians of public funds and property: (proper

management of funds -internal and external audit) we want a new provision which

deals with duties of custodian of public funds (Health Services Fund)

GROUP 4

Labour rights

Constitution - Section 65 (1) as read with section 24 sets out fundamental rights of

employees

Health Service Act

Section 13(1)

1. Board in consultation with employees and Minister should be involved in fixing

reasonable remuneration packages for worker

2. Conditions of service should be set in line with regional & international standards

Constitution - Sec 65(2) Freedom to join Associations

Health Service Act

Section 16 (1)

1. All categories of workers should be allowed to form associations of their choice &

register with the HSB (Those associations not registered will not be recognized and

Page 20: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

19

7.2 Plenary session Following feedback from the group discussions, the participants made the following

contributions during the plenary session:

Comment Response

On Group 1’s presentation:

The following suggestions were made:

The executive chairman post should just be chairman

(non-exec) and maintain the post for executive

director (ED).

Amend Act to say there shall be a chairman.

Refer to Civil Service Commission and all the other

executive commissions, where the chair is not

executive but there is usually then an executive

secretary. An executive chair is an anomaly in terms

of the Constitution. Need to look at the terminology

It was submitted that the age limit

for board members should be

specified. Proposed age is 65years

and below.

Furthermore, it was noted that age

limits are provided for in the

Constitution, JSC gives 70 year age

limit for all judges to have retired. It

was suggested that participants can

revisit the definition of the elderly in

will be encouraged to formalise their association)

2. HSB submit the registered unions/associations for endorsement by Minister

Constitution - Section 65(3) Right to strike – restriction for essential services

Health Service Act

Additional sub-section in Act

The law may restrict the exercise of this right to strike in order to maintain essential

services but the workers must be protected from unfair labour practices by the

employer

Constitution - Section 65(7) - Paternity leave?

Other recommendations:

HMB governance issues-

HSB to appoint HMB in consultation with Minister

Section 19(2)(a) of Act - CEO/Medical Superintendent should not chair HMB

meetings

Page 21: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

20

used in the Constitution. A There is need for clarity

on the functions of the Chair and alignment to

template set out for Judicial Service Commission

(JSC) and other such commissions.

Executive Director's term of office should also be

stipulated, not just be a permanent employee with an

open-ended contract. Refer to section 205 of the

Constitution since the role is the same as a Permanent

Secretary.

the Constitution, section 82.

Participants were advised to refer to

section 320(1) on terms for

commissioners as reference point.

It was further stated that there is

need to spell out the composition of

the board members.

The following suggestions were

made: since core business of

MoHCC is patients & their staff,

ensure that there are doctors, nurses,

a lawyer, HR & finance person.

Refer to JSC composition as well in

the Constitution, section 189.

The board should be aligned to the

professionals they are representing

in the health sector. Also include

other health disciplines

representatives, not just one or two

fields.

It was recommended that terms in

the Act should coincide with those

in the Constitution.

On Group 2’s presentation:

Participants noted that the current

situation/arrangement on HSB delegating authority to

hire & fire is preferable, rather than allow HMBs to

be the final authority. HSB remain as the appeal body

before we go to labour court. HSB cannot be player

In response it was stated that in a

rural setting like a district hospital, it

may be difficult to find cadres with

the necessary expertise. Community

Health Council under another SI

might be a better approach.

Page 22: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

21

& referee at the same time (SI 117/06). Status quo

should remain.

Giving HMB the delegated authority to discipline –

for the Civil Service, the Commission retains this

power/authority, so why should HSB delegate to the

HMBs? The responsibility should remain with the

Board.

HMBs are for strategic oversight, not for day to day

affairs. The technical people on the ground must

support the board and account to it – the whole team,

not just the CEO (who is often ex officio) – it is an

administrative issue and also a legal issue from the

Health Professions Act.

Clinical Director is the practitioner in charge of the

institution

It is cause for concern that the Act provides for

investigation of misconduct for people in the Health

Service, but not for Board members. That should be

inserted.

Terminology of HMB is still problematic –

governance aspects are not coming out as they should

be. Perhaps call it Hospital Advisory Board, and

define what that means

But on the ground, the Civil Service

Commission delegates to line

Ministries, then appeals forwarded

to the Commission.

That delegation should not be put in

the Act, should be through circulars.

S237(2) of the Constitution speaks

to that, but it still requires an

outline/mechanism for that

disciplining process for the

Commissioner

On Group 3’s presentation:

Page 23: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

22

Health Levy, National Aids Trust Fund not

mentioned because they already exist.

Stakeholders needed clarity on the funding referred to

in S305 on direct funding from treasury

Consider adding salt, sugar, fat as

taxable items

Funding for the operations of the

board

On Group 4’s presentation:

Instead of having a list, just stipulate that “all health

workers” or “everyone who works in a health

institution” is essential, even the accountants and

general hands.

How exactly will the employees be protected from

unfair labour practices? Need to have examples.

Resource mobilisation skills should also be

considered critical on the boards, people with a mind

for investments

Section 65 of the Constitution – there should be

collective bargaining happening

Look at definition already in the

current Act – section 9. So the list is

actually incomplete.

The group felt they would leave the

details to the technocrats who will

be coming up with the draft.

Depends on availability of

resources, economic conditions.

8. CONSOLIDATION OF SESSION PROCEEDINGS AND WAY FORWARD A Legal Research Officer from the Centre for Applied Legal Research gave a summary of the

session proceedings and reiterated some of the key issues that had come out of the

deliberations of the stakeholders. She indicated that the next step was the hosting of the

Southern region stakeholder consultative workshop to be held in Bulawayo in the coming

weeks. Thereafter, the Ministry would consolidate the stakeholder recommendations. This

input would be used in compiling the Cabinet Principles to be used in drafting the final

Health Service Amendment Bill at a write-shop conducted with legal experts from the

Page 24: MINISTRY OF HEALTH AND CHILD CARE - Ministry …...HSB Health Services Board IMT Inter-Ministerial Taskforce on Alignment of Legislation to the Constitution MoHCC Ministry of Health

23

Attorney General’s Office (Legislative Drafting Division) and the Ministry with the support

of IMT.