By Dr. Nelly Bosire
“My name is Dr. Rowena Njeri
I am a general practitioner
My workstation is in rural Kenya
I serve the poorest of poor Kenyans
My life has meaning because I make a difference in someone’s life
Providing services I cannot afford”
It had been 100 days of total paralysis in the health sector. A very devastating 100 days for Dr. Rowena’s patients who need her services most desperately but she, along with her fellow doctors, dug in their heels and said there would be no respite until the government played ball.
As the doctors strike played out, the country was subjected to legal theatrics that left those of us who are not learned friends totally baffled. See, there is a history to this.
In December 2011, Kenyan doctors went on the third national strike, only this time with a lot of confidence, having newly registered a union to handle their labor relations and having signed a recognition agreement with the Ministry of Health. They were totally disenfranchised with their remuneration but had their hearts in the right place. In a 14 point strike notice, their remuneration featured at number 13. The rest was focused on public health care improvement.
The stalemate ended with a solid return to work formula that was three-tied. The first tier was a salary increment based on honoring allowances that covered risks incurred by doctors in practice. This was accepted on condition that the Ministry of Health would sit with the Union and develop a blueprint based on existing policy documents and Union recommendations that would drastically improve health care in the country and this comprised the second tier. The final tier involved the Ministry as an employer sitting down with the Union and coming up with a collective bargaining agreement that would address their engagement.
The first and second tiers were quickly achieved within the set timelines. The CBA negotiations were a different kettle of fish. They were tiresome, drawn-out and sometimes downright hostile. Both sides were equally obstinate and it took a whole year to agree on the document. Two key challenges arose with the discussion. The first was the issue of the creation of residency positions. These are remunerated positions for doctors who are in specialty training. The proposal by the Union was that the Ministry should provide for 400 positions to enhance training of specialists and end the current existing slavery that goes on in Kenyatta National Hospital and Moi Teaching and Referral Hospital. The second was in the role of the Salaries and Remuneration Commission (one that had not even been formed at the time) in advising on the remuneration figures that the two parties had agreed upon.
Unlike most collective bargaining agreements, this CBA addressed the needs of the patient by providing a suitable work environment for the doctor who is the service provider. The CBA held the employer to account to ensure that as this doctor, who is adequately remunerated, was able to properly discharge their duties because they had the necessary infrastructure, consumable products, drugs, diagnostics and research-derived evidence to apply best practice.
This document was neatly done and dusted in the year 2012. For over eight months, the Ministry of Health officers did not sign the document, citing one excuse after the other. The lack of response by SRC became the scapegoat. SRC was only constituted after the election in 2013. The commission had to get operational and to respond.
Article 41 of the Constitution of Kenya recognises the right of every person to fair labour practices and in particular, the right of workers and employers to form, join or participate in the activities and programmes of a trade union and employer’s organization respectively. Every trade union and every employers’ organisation has the right (a) to determine its own administration, programmes and activities; (b) to organise; and (c) to form and join a federation. The union or organizations as well have the right to engage in collective bargaining. Article 36
Article 36 recognises the freedom of association and requires that where any legislation that requires registration of a trade union that legislation must ensure that the registration may not be withheld or withdrawn unreasonably; and that there is a right to have a fair hearing before a registration is canceled. Trade unions activities are largely significant in two respects – collective bargaining and in strike action. Under Section 57(1) of the Labour Relations
Under Section 57(1) of the Labour Relations Act, a Collective Bargaining Agreement is identified as an agreement between an employer or group of employers with a trade union that has been recognized by such employers setting out the terms and conditions of service for all unionisable employees covered by the recognition agreement. Section 59(1) & (2) of the Labour Relations Act provides that a CBA binds all the parties to the agreement and all unionisable employees, even upon the resignation of membership. The terms of the agreement are to be incorporated into the contract of employment of every employee covered by the agreement and the same must be in writing and signed by the Chief Executive Officer of any employer or employer association party to the agreement and the General Secretary of any trade union that is a party to the agreement as per Section 59(4) of the LRA. In this regard, therefore, it was for the Ministry of Health to ensure that the said CBA was signed as is is the doctor’s employers. Moreover, the same had to be registered with the Industrial Court under Section 60(1) of the Labour Relations Act within 14 days of conclusion, for it to be enforceable and implemented. The employer (the government herein) was to submit it, but the doctor’s union could submit in case of failure by the government. However, this was difficult since the government had not even signed it in the first place and was relying on the SRC as a scapegoat.
After months of back and forth, the 2013 election rolled in and with it came a new constitutional dispensation and devolution. There was need for closure. The outgoing Permanent Secretary, Mark Bor, being the senior-most government official holding office agreed to sign the document but due to delays, his signature came two days after a new Principle Secretary had been appointed to office. This formed the first bone excuse for the government to refuse to acknowledge the CBA. But truth be told, the government dug this up and dragged it all the way to parliament not necessarily because the law was the problem but simply because it was looking for wiggle room to extricate itself from the document.
The question here is whether the government was bonafide in its actions and whether it was proper and binding for it to have the document signed by an outgoing Permanent Secretary two days after appointment of a new Permanent Secretary. Should the new Permanent Secretary have signed the same to ensure the government was bound or was the government just trying to cause an illegality by allowing an outgoing Permanent Secretary already out of office to sign the CBA?
Anyway once signed, the employer had 14 days to register the CBA with the industrial court and start the implementation process. At this time, no one at the Ministry of Health had any time for the document. They were focused on devolution of health and how to pass on the devolved functions to the governors. This was no mean feat. If they had been honest with themselves, they would have admitted that they were facing up to the reality of just how badly health had been mismanaged over the years and how some counties were so badly off, there was nothing much to hand over.
Governors, coveting the perceived fat budget for health, were impatient to take over health functions. They had no comprehension of the liabilities that it carried. Had they even taken a few more months, they would have come to the realization that the budgetary allocation given to them was grossly insufficient. They would have taken the Ministry of Health to task over delayed promotion of health workers and demanded that promotions be completed before handing over the workers. They would have realized that there was a very thorny document that had just been signed that needed execution. But in their short-sightedness, they embraced a ton of problems that would come to haunt them.
The immediate reaction was a December 2013 strike where health workers protested the haphazard devolution of health with neither a health policy, nor a health act in place that would govern the sector. This set off a cascade of county strikes totaling 43 industrial actions in the health sector in three years! Most counties demonstrated a clear lack of understanding of how to manage the function, with wastage of public resources, nepotism, tribalism, and complete lack of understanding of the role played by various cadres of health workers in the system. The Ministry of health made this worse by the imposition of the medical equipment scheme that was obviously not well thought out and poorly executed.
As the discontentment among health workers grew, the doctors were pushed to the edge. They began to put pressure on their Union officials to do something. The officials had spent the better part of two years pursuing diplomatic channels of getting the CBA registered and implemented. They had held meetings with the key stakeholders in the implementation of the document, namely, Public Service Commission, Ministry of Health, Salaries and Remuneration Commission and the Council of Governors. None of these meetings bore fruit. The frustration was palpable. Parallel to this, the Union moved to court seeking to get the Ministry of Health compelled to register and implement the CBA of 2013……..READ FULL ARTICLE ON YOUR COPY OF THE MARCH 2017 EDITION