The High Court in Machakos has temporarily stopped the criminal proceedings opened against pharmacists arrested following Governor Alfred Mutua’s decision to revoke business licenses of clinics, chemists and laboratories near public health facilities in the county.
High Court Judge George Odunga granted the petitioners’ plea for temporary stay orders stopping their prosecution pending the hearing and determination of a petition they have filed challenging the legality of Dr Mutua’s June 17 directive.
LINCENCES
The court however declined to grant conservatory orders to stop the revocation of licences as had been announced by Dr Mutua.
Since the directive was issued, at least 19 registered pharmacists have been arrested and charged in court for allegedly colluding with the county hospital staff.
“The petitioners, as well as other pharmacists have been prohibited from opening their pharmacy outlets, and they have kept off their places of business in fear of being arbitrarily arrested, which situation is causing them tremendous loss in terms of their livelihood and the medicines they sell have a shelf life,” Dr Jacinta Mukonzo, Dr Michael Musyoki Kamala and Dr Wilson Kyalo Mutua have told the court in their petition.
They are represented in the matter by lawyer Boniface Akusala.
In their petition, the three pharmacists told the court that Dr Mutua’s directive lacked any known legal basis and the decision to revoke their licenses was not subjected to public participation. They also said the directive was “unconstitutional, ultra vires, oppressive and illegal.”
“The respondents are in the process of usurping the role and functions of the Pharmacy and Poisons Board (PPB), as directed by the operative law, to wit, the Pharmacy and Poisons Act, Cap 244 of the Laws of Kenya, which bestows the authority to come up with policies in view of practice of pharmacy within the country,” they said.
The petition also states that by closing the pharmacies and prohibiting the proprietors from opening them, the county government of Machakos is denying the people access to medicines which they would ordinarily obtain from the pharmacies.
PETITION
This, the petitioners argue, violates the people’s right to the highest standards of health and access to pharmacare.
Governor Mutua on June 17 oversaw the closure of several clinics, chemists and laboratories close to county health facilities. This was after it emerged that drugs and other commodities from Machakos Level 5 Hospital were being sold in the pharmacies close to the hospital.
“On March 14, 2019, while commissioning a new theatre at Matuu Level 4 Hospital, I directed that as per the law & regulations, there should not be a private clinic, lab, pharmacy & such health providers within 300 meters of a Machakos government health facility,” Dr Mutua tweeted at the time.
“Three months later, some of my health workers are still conniving with private facilities and sabotaging Universal Health Care by sending innocent patients to private labs, pharmacies & clinics instead of providing them free and quality health care in Government health facilities,” he added.
He said it was in the public interest that the pharmacies be closed as public health facilities had enough stocks of drugs.
But the pharmacists say the directive is not only unconstitutional but also a way by the governor to “publicly humiliating us by handcuffing us and accusing us of colluding with the county hospital staff, accusations that we have no knowledge of.
