Why Duale’s KMPDC picks are illegal

Medical practice today exists in a very different world from what it once did. Old-school paternalism is gradually being washed away. Patients are informed. Patients are empowered. Patients know their rights. They will ask questions.

They will complain. They will demand explanations. Doctors, on the other hand, are working in an increasingly litigious world where every action can be analysed through legal, ethical, and professional perspectives. So medical regulation exists in this precarious space between law, ethics, and public confidence.

Every complaint that finds its way to that office represents not just one patient seeking justice, nor just one doctor being investigated. Each complaint file also represents every single person who walks through the door of that health facility; the doctors, nurses, and staff that rely on the system to work; and the public who expect a safe and effective service. But what happens when those investigations are called into question? What do you do when the gatekeepers need guarding?

In Kenya, the Kenya Medical Practitioners and Dentists Council exists for a clear statutory purpose. It is there to protect the public. It is meant to ensure that patients are safe, that professional standards are upheld, and that malpractice is addressed.

These are essential functions. But that mandate cannot be used as a shield for opacity, delay, or internal misconduct. A regulator that demands accountability must itself be accountable. Once the public begins to doubt the referee, the entire system begins to wobble.

Bribery and misconduct

Recent allegations of bribery and misconduct within the Council have shaken that confidence. Whether proven or not, the mere perception of corruption within a medical regulator is deeply damaging. Patients entrust their lives to the health system. If they begin to believe that justice can be influenced, the consequences are profound. For practitioners who follow the rules, it sends the message that integrity may not be enough. For the system as a whole, it creates the impression that some actors are shielded from scrutiny.

Equally concerning is what has followed these allegations. There has been no clear, public accounting of what transpired. Investigations that captured national attention appear to have faded into silence. Silence creates suspicion. It suggests that processes may not be as robust or as independent as they should be.

But beyond transparency, there is a more fundamental issue that goes to the heart of the Council’s legitimacy. The composition of the Council itself must comply with the law. Section 3A of the governing statute sets out how the Council is to be constituted. Subsection (2) is explicit: members, other than those serving in an ex officio capacity, serve for a term of three years and are eligible for reappointment for one further and final term of three years. The law is clear. Two terms. No more.

Yet the recent gazette notice by Cabinet Secretary Aden Duale raises credible questions about upholding the law. The CS has reappointed an individual whose term limits have expired. This is a direct breach of the law. It raises serious questions about the decisions of the appointing authority.

If the body charged with enforcing standards is itself constituted in a manner that disregards the law, its authority is immediately compromised. Institutions derive their strength from both legality and trust. If either is weakened, the institution struggles to perform its function. A Council that is not properly constituted cannot convincingly enforce compliance among those it regulates.

There is yet another issue about governance, rather than individual blame. Within days of the very public allegations that put the Council’s behaviour into the public domain, assurances were given by the Ministry of Health that these issues would be investigated and addressed. However, it is of concern that some of the individuals who sat on the Council at that time are now back in positions of governance over this organisation.

Good governance

Again, this is not an allegation of individual wrongdoing. But when questions have been raised about good governance, it would suggest that allowing the same group of people to continue to lead the organisation could lead to a continued lack of confidence by the public that real mistakes were not made. Good governance requires not only that we are acting within the law, but that we are also sensitive to how our actions may be perceived. In some cases, that means changing faces.

Accountability to the public also means accountability to the law by everyone involved in this system, including those who appoint members to the Council. They must act lawfully, transparently and in good faith. This requires adherence to legislated term limits, due process in appointments and restraint from reappointing individuals who have already served on Councils that have been called into question. Term limits are not a formality. They are legally mandated to safeguard institutional independence and maintain public trust.

At the Council level, three elements are non-negotiable: independence from undue influence; transparency of processes, with timely communication to practitioners, complainants and the public; and strict adherence to the law in its composition. Enforcing term limits, disclosing investigation outcomes, ensuring accountability through internal review, and managing conflicts of interest are not burdens to be avoided.

They are the minimum required to restore legitimacy. Ultimately, the strength of medical regulation will be judged not by its zeal in pursuing complaints, but by whether it operates fairly, transparently, and within the law. That is what the public expects, and that is what the Council must uphold.

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Dr Bosire is a medical doctor and lawyer. [email protected]