The Law is Broken: The Doctors’ Strike Isnt The Only Thing that May Be Unconstitutional

It is Day 3 of the on-going doctors’ strike by members of the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU) and despite their willingness to try and avert a nation-wide health crisis through negotiation and mutual settlement, the government has decided to play hard ball with a profession that literally holds the lives of Kenyans in its hands.

Many have argued that the Constitution is on the side of the doctors’ two fold: firstly it protects their right to take industrial action and secondly the State is under a positive obligation to protect the fundamental rights and freedoms of all Kenyans both from a health care perspective as well as from a general human rights perspective.
However, constitutional rights are not absolute especially where there are competing rights such as the right of the general public to the delivery of essential services, which arguably would include health care services.

Before we discuss these weighty matters of legality, let’s start from the beginning.

In downing their stethoscopes and other tools of trade, our health care professionals are exercising their constitutional right to fair labour practices enshrined in Article 41, which encompasses the right to fair remumeration, reasonable working conditions, participation in the activities and programmes of a trade union and finally the right to go on strike.

More fundamentally, the doctors’ strike (unlike the recent teachers’ and lecturers’ strikes) is unique as it has a direct impact on other fundamental rights and freedoms provided in the constitution including the right to life, right to human dignity and the economic and social rights, which includes the right to health care services.

With this background in mind, I have come to the sad realization that there are those in government (Executive and Legislature, in particular) that have studied the Constitution inside out for the sole purpose of finding loopholes and ways to circumvent their obligations under it. Take the present instance of the doctors’ strike, we have heard the government (the Executive) saying that they cannot meet the demands of doctors in public hospitals because doing so would be unconstitutional since the Constitution provides for a Salaries and Remuneration Commission whose jobs is to set the salaries for all public officials including those working as doctors.

While it is true that Article 230 of the Constitution establishes the Salaries and Remuneration Commission, it’s functions are clearly set out. Under sub article 4 (a), this Commission can only set and regularly review the remuneration and benefits of State officers and not other public officers.

Therefore it is wrong for the government to mislead Kenyans that its hands are tied in negotiating and reviewing the salaries of doctors. It is shameful for the government to hide behind Article 230 when that very provision limits the powers of the Salaries and Remuneration Commission to only advising the government on the remuneration and benefits for public officers like doctors, lecturers and others.

Therefore, were we to conclude that Government is unwilling to negotiate in good faith and the health care sector continues in a state of paralysis, how does the law propose to address this stand-off?

For this answer, one would ordinarily consult the Labour Relations Act of 2009. Looking at the LRA, it appears to be a modest attempt to strike a balance between the rights and duties of both employers and employees. A critical feature to note is that the LRA talks about what it calls “essential services” defined as “a service the interruption of which would probably endanger the life of a person or the health of the population or any part of the population”. The LRA, in the Fourth Schedule, lists “hospital services” as one of the “essential services” and some would argue that this would include the services offered by members of the Kenya Medical Practioners and Dentists Union (KMPDU). Under section 78(1)(f), the LRA expressly prohibits any person to take part in a strike if the employer and employees are engaged in an essential service. This same prohibition is restated in section 81(3).

If both parties in a labour dispute fail to agree, the LRA provides that either the Minister or the Trade Union itself may refer the dispute to the Industrial Court as a matter of urgency. This provision exists because the employers and employees in question are engaged in an essential service.

So what is the LRA saying? Simply put, in the case of essential services, a strike causes such harm that the social and/or economic considerations of such harm are sufficient to outweigh the usual protection of the right to strike and judicial intervention and or other dispute resolution mechanisms like arbitration are required as the means of resolving disputes in essential services.

Internationally it has been recognised that there should not be a right to strike in ‘essential services’ as such a strike may inflict is far too detrimental to the life, health and safety of the whole or part of the population of a country. The International Labour Organisation (ILO) recognises this exception to the right to strike and has defined it in these terms. Employees who render essential services were not to be left out in the cold; compulsory arbitration was to be their substitute for the right to strike.

However the LRA fails to provide for compulsory arbitration or any other specific form of dispute resolution in cases involving essential services. In addition to clearly defining what would constitute an ‘essential service’, the right to interest arbitration in the case of those engaged in essential services should be spelled out clearly. To this effect, this section of the LRA, in its present form, could be argued to be inconsistent with the Constitution as it purports to unjustifiably and unreasonably limit the labour relations right of workers and employers engaged in essential services.

Therefore from a purely juridical point of view, this doctor’s strike is useful as it will, hopefully, get relevant Ministries and Parliament to re-look this aspect of the Labour Relations Act in order to avert a national crisis in the provision and quality of essential services to Kenyans.

3 thoughts on “The Law is Broken: The Doctors’ Strike Isnt The Only Thing that May Be Unconstitutional

  1. You’ve put up an interesting argument there misternv, and I tend to agree with you for most part. It can also be argued that the prohibition of those engaged in essential services to go on strike is a justifiable abrogation of that right under the constitution rather than a conflict with the constitution. After all, as you’ve said, not all rights are absolute.

    It defeats logic as to why the government is waiting on the yet to be formed S & R commission to advice it on what to pay to the doctors and probably any other public officer who will take up the strike option. And the way they are lining up.

    The doctors’ strike also raises ethical, moral, human rights as well as reality issues. The medics have highlighted several issues including their poor work conditions and the general state of healthcare in this country. But as expected, the most salient of their grievances is their pay. In reality, which of these issues would you expect the government to address if the doctors are to resume their duties? Methinks the pay issue, even if partly so. Then everything will in back to ‘normal’. Nothing much will change. Low morale by the medics, expensive medicine, lack of equipment, consultancy in private facilities to the disadvantage of the public ones will continue, poor services in the public facilities will persist. In the end, the public will have been left for worse than the doctors would gain by this strike. Some have died from neglect, more treatment costs for ailments now worse for lack attention e.t.c.

    It’s not just a legal argument that doctors, and especially in a poor country like Kenya where majority of the population depend on their services, that a strike should really be a last resort. I don’t know how hard either side tried to prevent this strike . But then again, I would also be distrusting of politicians if I had to negotiate anything with them.

    Should the patients have recourse against doctors who’ve caused them additional, avoidable suffering?

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