Doctors in Kenya have been on strike for over 90 days now. The doctors are demanding the implementation of a Collective Bargaining Agreement (CBA) that had been negotiated between the outgoing government and the medical practitioners union back in 2013.
The Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU) is a trade union that was registered in 2011. This happened when the adoption of the new constitution gave every Kenyan worker the freedom to join a trade union while at the same time compelling every employer to recognize the employees’ trade unions. One of the first things the KMPDU did was to call a strike action in December 2011 citing a range of grievances. This strike lasted only a few days before the government and the doctors agreed on a Return to Work Formula. One of the key things contained in the Return to Work Formula was that a Collective Bargaining Agreement (CBA) was to be negotiated between the Government and the KMPDU. On March 22nd 2012, the Health Ministry signed a Recognition Agreement with KMPDU. They then agreed to form a team that was to work out the CBA.
A Collective Bargaining Agreement is a written, legally enforceable contract between an employer and a trade union defining the terms & conditions of employment (wages, working hours, working conditions, overtime payments, benefits etc.) and procedures for dispute resolution. Details of what is legally required for a CBA are found in the Labour Relations Act, 2007. The following are some general points concerning the legalities of a CBA.
- In general, CBAs have a lifespan of up to two years before renewal is required.
- Section 60 of the Act requires that the CBA be registered with the Industrial Court.
- This submission should be done by the employer (in this case the government) however, if the employer fails to do it, the Trade Union can make the submission themselves.
- The Industrial Court may object to the registration if the CBA conflicts with the Labour Relation Act or any other law or if it doesn’t comply with any guidelines concerning wages or any other conditions of employment issued by the Cabinet Secretary.
- In the case there are no objections, the Industrial Court may register the CBA within fourteen days of receiving it. Without such registration, the CBA has no legal effect and cannot be enforced.
- Once registered, the CBA is binding. It is against the law to try and implement a CBA before the Industrial Court registers it.
- A Recognition Agreement is basically a document stating that the employer recognizes the Trade Union as the representative of the employees’ interests. It is not proper for the employer to engage in CBA negotiations with a Union without a signed Recognition Agreement document.
- Article 230 of the Constitution and the Salaries and Remunerations Commission (SRC) regulations require that before the CBA is submitted to the Industrial Court for Registration, the employer (in this case the Government) must submit it to the SRC for advice and to ensure that it complies with the rules and regulations on remunerations and benefits.
Negotiating the CBA took more than a year, with the document finally being signed on June 27th 2013. After this, the Health Ministry was expected to submit the document to the Industrial Court for registration as required by the Labour Relations Act. Former KMPDU Secretary General Sultani Matendechere and Chairman Victor Ng’ani signed the CBA on behalf of the Union while former Health Permanent Secretary Mark Bor signed on behalf of the Government (the employer). It is important to note that at the time of the signing, the former PS was an appointee of former President Mwai Kibaki. He was a remnant of the outgoing Government because the new Government, which had just come in (President Kenyatta had just been inaugurated on April 9th 2013) was yet to sort out its executive representatives.
On 4th November 2013, the Ministry of Health submitted the CBA to the SRC for their advice and direction on the best way the doctors were to be remunerated. This is in accordance with article 230(4) of the Constitution, which basically states that the SRC are to set and regularly review the remuneration and benefits of all state officers and that they are also to advice both the County and National Governments on the remuneration and benefits of all other public officers. However, according to the SRC, the Government failed to respond to follow up questions and to provide information necessary for them finalize the advice required. Despite the fact that both parties had signed the CBA, some articles had not yet been fully agreed upon. The Health Ministry wanted these to be ironed out before they took the CBA to the Industrial Court.
Meanwhile, the March 2013 elections brought with it a new Government, and crucially, it also marked the official launch of decentralization through Devolution. The Fourth Schedule of the Constitution provides specific guidance on which services the National or County Governments would provide. In the Health Sector, essential health service delivery is assigned to County Governments while the National Government retained health policy, technical assistance to Counties and management of National Referral Health Facilities. However, management of Provincial General Hospitals, procurement mechanisms and fiscal processes were not defined.
It became necessary for the health fraternity in Kenya to find the best way to take advantage of the newly formed devolved system of government. A Functional Assignment Competency Team was set up to oversee the devolution of the health sector. Some of the key issues they grappled with included assigning functions to the two levels of government, developing formulas to determine health budget allocations on both levels of government, clarifying the definition of a national referral facility and organizing commodity procurement. On February 2013, the Team finished its work and drafted a Policy Paper that was supposed to be implemented through a new Health Bill. A Gazette Notice (No. 16) on February 1st 2013 devolved Primary Health Care. Curative Health Care (basically the Referral Medical Facilities) was retained at a national level.
It was expected that the transition period would take three years as provided for in the Transition to Devolved Government Act 2012. However, political pressures derailed these plans. When the Governors were elected, they petitioned the President to devolve authority and resources to the Counties as quickly as possible. As a result, the Transition Authority devolved all health services to the Counties in a Gazette Notice published on August 9th 2013. This presented a number of political and technical challenges. For example, who between the National and County Governments would be in charge of the Referral Hospitals and how would the human resource management issues such as personnel transfer, salary payment and terms of employment be handled.
The KMPDU went to court in November 2013 to challenge the legality of the manner in which the Transition Authority had devolved health, but the case was thrown out. This was taken to mean that Health had now been fully devolved. Getting to the point of implementing the CBA now faced a series of new hurdles. There was a new Government with a new PS to deal with and now the reality of Devolution meant that the County Governments and the Council of Governors had to be involved in any negotiations. Indeed, the Ministry of Health declined to submit the CBA to the Industrial Court stating that neither the Council of Governors nor the Salaries and Remunerations Commission (SRC) had been involved in the crafting and signing of the document.
The KMPDU then gave the CBA to the SRC, who then called a meeting on November 27th 2014 to try and reach a consensus on the document. Represented at the meeting were the Ministry of Health, the Council of Governors, the National Treasury, the Attorney General and the Public Service Commission. It was agreed at this meeting that all parties consult and reach a consensus within 28 days to clear the way for the document to be registered and implemented.
When this didn’t happen, the KMPDU moved to Court because it felt that the Ministry of Health had refused to honor the multipartite agreement they had reached under the guidance of the SRC. So on June 2015, the Doctors Union asked the Industrial Court to register the CBA and disregard the other parties as provided for in the Labour Relations Act. The Ministry of Health maintained that the CBA was illegal and defective because Health was now devolved.
In a ruling that was made more than a year later on October 6th 2016, Lady Justice Monica Mbaru of the Industrial Court told the doctors that the 2013 CBA was indeed defective and couldn’t be registered in its current form. She asked the doctors to embrace the reality of devolution and involve the County Governments. The Court enjoined the Ministry of Labour and directed that the Doctors’ Union and the Ministry of Health see to it that the Council of Governors is made a party to the CBA. However, Justice Mbaru also found that the Health Ministry had acted in bad faith by trying to stall the process in claiming that the Health Permanent Secretary’s signature on the CBA was invalid. She asked all parties to negotiate the CBA in good faith without any group frustrating the other. The court directed that in light of this, it was necessary to issue definite timelines within which all the parties shall adhere to, to ensure the finalization of the CBA.
The following are some of the important points from the ruling.
- The CBA to be used is the one agreed on and signed on the 27th of June, 2013. There is no need for a new document.
- The KMPDU and the Ministry of Health are to meet to resolve the contentious articles that they had not yet agreed upon. This meeting should happen within 30 days.
- The Health Ministry is to work with the Labour Ministry and the SRC to plug any information gap by getting all the relevant advice needed with regards to the CBA. This is to happen within 45 days.
- The Health Ministry in consultation with the Labour Ministry are to submit to the Court a final CBA for registration within 90 days.
- If this doesn’t happen, when the 90 days are over, the KMPDU are to bring the negotiated CBA to the Court for registration.
90 days from the day of the ruling would be January 4th 2017 and November 20th 2016 would be 45 days from the day of the ruling. However, the doctors issued a strike notice on the 12th of November 2016, and subsequently downed their tools on 5th December 2016 because they felt that no progress was being made by the Ministry of Labour and the Ministry of Health. The Health Ministry made three attempts to meet the KMPDU since the day the strike notice was issued but the doctors remained firm that strike would go on until the CBA was implemented fully. Health Cabinet Secretary Cleopa Mailu argued that the strike was premature because the 90 days the Court had given for negotiations was not yet up. He said that the Ministry was still open to talks and urged the Medical Practitioners to go back to work to avert a potential health crisis. On December 2016, the Council of Governors filed a successful case at the Employment and Labour Relations Court (The Industrial Court) to temporarily stop the doctors from going on strike, but the Doctors went on strike anyway in defiance of the Court. The Council of Governors further filed for contempt and on December 19th 2016 the presiding Judge Ms Wasilwa found the Union Officials guilty of disobeying a Court Order. Since then, the President and the National Assembly have gotten involved and the number of Court Cases has grown. There has been a lot of distrust between the negotiating parties with both sides accusing the other of trying to sabotage the talks. In the end, it comes down to the following facts.
- There is a general need for the improvement of healthcare services in the Country. The 2013 CBA had addressed most of the issues necessary for this development.
- The doctors have a right to a collective bargaining agreement as per Article 41 (5) of the constitution.
- Health is now a devolved function under the constitution with the counties taking over primary healthcare, county health facilities and pharmacies while the National Government handling health policy and National referral health facilities.
- Because of this, the 2013 CBA cannot be registered in its current form because Key Stakeholders i.e. the County Governments need to be involved in negotiations.
- Kenyans are dying because of power games and mistrust. There is a lot of miscommunication and political interference in the whole process.
While it is true that Devolution is a political process, the future of Kenya’s health system relies on honest negotiations between the stakeholders with a view to create and implement the best health policies possible regardless of the new political environment.
The President has assented to the Election Laws (Amendment) Act, an array of various amendments to the existing electoral laws in preparation of the forthcoming general elections slated for 8th August this year.
Key in the electoral reforms is the need to integrate a manual back-up mechanism of voter identification. The manual back up plays a complementary role to the already existing electronic voter system.
Amongst the reasons advanced for the dual system was the need for the Independent Electoral and Boundaries Commission (IEBC) to have a manual back-up in the event that the electronic system registers failure. Second is the need to combat possible breach including hacking, thus safeguard the elections from being compromised. The manual system will also identify voters and transmit results.
The new law provides that the Commission shall put in place a complementary mechanism for identification and transmission of results that is simple, accurate, verifiable, secure, accountable and transparent to ensure it complies with the provisions of Article 38 of the Constitution. Article 38 of the Constitution guarantees citizens the right to free and fair elections based on universal suffrage and the free will of the electors.
It should be noted that the amendment does not mean the country will employ a manual voting and tallying system but the system will be resorted to in the event of failure of the electronic system.
Other amendments passed include the suspending the Election Campaign Finance Act, which required candidates and political parties to submit their finance details to the electoral commission within a set deadline. Finally in addition to creating equity and giving minorities an opportunity in Parliament, those aspiring to be Members of Parliament will no longer be required to hold a university degree to vie for political office in 2017 polls.
Following years of negotiation and many failed attempts to create supranational and international tribunals in a bid to harmonize the laws of war, a diplomatic conference of 120 states held in Rome adopted the Rome Statute of the International Criminal Court on July 17, 1998. The statute did not come to force until July 1, 2002 when it was ratified by 60 states as required by article 126 of the statute. The Rome Statute established four core international crimes: genocide, crimes against humanity, war crimes and the crime of aggression.
The International Criminal Court was established to deal with the four core crimes as the crimes that shall not be subject to any statute of limitations. It can however, only investigate and prosecute the crimes in situations where the member states are unable or unwilling to do so themselves. Its jurisdiction extends to crimes committed in the territory of a state party, committed by a national of a state party or in other jurisdictions as authorized by the United Nations Security Council.
Till date there have been 23 cases before the Court, with some cases having more than one suspect. The ICC judges have issued 29 arrest warrants with 8 persons being detained in the ICC detention centre (thanks to cooperation from States) and have appeared before the Court. 13 persons remain at large while charges have been dropped against 3 persons due to their deaths. The judges have issued 4 verdicts: 3 individuals have been found guilty and 1 has been acquitted.
Thirty-one of Africa's 53 nations are signatories to the Rome Statute that establishes the Court's authority. This number means that the ICC has jurisdiction in nearly one third of African States. This has not resonated well with African leaders who point out that more than three quarters of the cases before the ICC are against leaders from the continent, despite atrocities being carried out by the west all over the world. Since its inception, the ICC has opened inquiries involving nine nations, all if which except one being African: Kenya, Ivory Coast, Libya, Sudan, Democratic Republic of Congo, Central African Republic (twice), Uganda, Mali and, most recently, Georgia. To this end, the African Union has passed a protocol to expand the jurisdiction of the African Court on Human Peoples' Rights (ACHPR) to include international crimes as an African alternative to the ICC. The member states have also supported a proposal by Kenya to have African States withdraw from the Rome statute to protest what they feel is 'discriminatory prosecution'.
Article 127 of the Rome Statute however, provides that state parties must pull out one by one. Withdrawal from the ICC starts with a state party writing a notification of the intention to withdraw to the UN Secretary-General. The state party then has to wait for a year before the withdrawal comes into force. Domestically, the process of withdrawing from a treaty should commence with Executive deliberations which then directs the cabinet members responsible for foreign affairs and Justice (attorney-general) to set up the appropriate instruments. The matter is then pushed as a motion to the legislature whose vote will effect the notification of intention to withdraw.
Only Benin, Congo, Guinea-Bissau, Kenya, Ghana, Sierra Leone and Mauritania have signed the protocol expanding the jurisdiction of the Arusha-based court to include international crimes. However, none of the signatories has ratified the protocol in their respective parliaments. The protocol requires the ratification of 15 countries to take effect.
On the ICC front, Burundi is the only country to have passed both the Executive resolution and the parliamentary vote and are thus on course to becoming the first country to withdraw from the Rome Statute. The country slid into political crisis after Pierre Nkurunziza won a third term as president, which many called unconstitutional. Since announcing his candidacy in April 2015, violence has left more than 500 dead and forced more than 270,000 people into exile. A U.N. report accused Bujumbura of being responsible for serious human rights violations, systematic and consistent, and warned against possible "crimes against humanity" and a "great danger of genocide." The crisis prompted ICC prosecutor Fatou Bensouda to launch a preliminary investigation in April into murder, torture and rape in particular.
One of the key campaigners of the move, Kenya, is yet to kick start the official process however. Despite the national assembly passing a motion to withdraw from the Rome Statute, it remains to be seen as to whether the Executive will pass a resolution to initiate the procedure. The country collided with the ICC after the prosecution of six witnesses, two of whom are now the President and Deputy President, for crimes committed during the 2007/08 post election violence. Ethnic clashes broke out in the country in the wake of the opposition's call for election rigging and thousands of lives were lost while hundreds of thousands were displaced.
The ICC prosecutions have not gone without resistance either. In Sudan, Omar Hassan Ahmad Al-Bashir refused to present himself to the courtroom to answer ten counts of crimes against humanity alleged to have been committed in Darfur, Sudan between 2003 and 2008. The pre-trial chamber has since issued to warrants of arrests, one in 2009 and another in 2010, but the case remains stalled as the suspect is still at large. The warrant can only be executed by member states when the Sudanese President is within their jurisdiction which has further worsened the relationship between the ICC and the African States. One Such state is South Africa, which recently announced its intention to withdraw from the Rome Statute. The country had signaled its discontent last year over criticism that it had ignored an order by the tribunal to arrest President Omar Hassan al-Bashir. Mr Bashir was allowed to leave South Africa after a visit in 2015, even though a local court had ordered the government to prevent his departure because of a warrant for his arrest.
In the end, this seems like the beginning of a massive walk out by the African states as the debate grows beyond the countries which have been directly indicted. The end result would see anarchy prevailing in war-torn African states as the Protocol to expand the jurisdiction of the Arusha-based African court is yet to be ratified (since it requires 15 states to ratify the protocol for it to be operational). In as much as there has been much criticism, the ICC successfully sentenced Jean-Pierre Bemba Gombo (President and Commander in chief of the military outfit Mouvement de Libération du Congo "MLC") for war crimes of rape and pillage committed in the Central African Republic between 2002 and 2003. Eyebrows are raised however on cases involving the west for example the Iraq/UK case which was closed in 2006 and re-opened under pressure in 2014 but still stagnates at preliminary examinations.
In conclusion, Africa would be a little justified in their quest to withdraw from the ICC but the same would come at an expense to the citizens of the withdrawing states. Unless Africans are assured of an alternative then the consequences of denouncing the jurisdiction of the court would be dire especially in times of civil unrest. Furthermore, it goes without saying that the leaders of the countries in the frontline of the agenda seem to have a personal interest on the matter as if to say they don't want the court to interfere NEXT TIME!!
In the mid-morning hours of 27th July, 2016 Murimi Karani of the East Africa Center for Law and justice made a presentation to the Joint Parliamentary Select Committee mandated to deal with matters relating to the Independent Electoral and Boundaries Commission. The presentation was based on the two distinct memoranda prepared by EACLJ providing recommendations on legal, policy and institutional reforms to strengthen the Independent Electoral and Boundaries Commission in a bid to ensure the August, 2017 elections are free and fair and are administered in an impartial, efficient, simple, accurate, verifiable, secure, accountable and transparent manner.
About three weeks later and the committee has finalized its report in consideration of the views aired by various groups and individuals before it. We are happy to report that some of our key proponents have been included in the report; they include
- The recommendation that only party members should be allowed to vote in the party nominations: For a long time now, parties have been conducting their nomination elections at the polling station using the voter register provided by the electoral body. This has not only been linked to malpractice (especially in places where certain parties are dominantly popular) but there have emerged allegations of manipulation by the other parties to influence their opponent's candidate. The situation informed the EACLJ's call to have the nominations to be based on party members only. The Joint Committee co-chaired by Senators James Orengo and Kiraitu Murungi has echoed these sentiments by making recommendations that the party nomination should be based on the party list and that only the registered party members can participate in the nominations.
- A recommendation that the party list for special seats should be submitted at the same time the party is publishing nominated candidates for the elective seats: The political field in Kenya has for a long time been played as a rewarding scheme. More so, the allocation of special seats has become an opportunity for election losers to find their way back to leadership positions. The EACLJ made the observation that the practice has not fared well with the people's right to be represented and as a result suggested to the committee that the lists by parties on allocation of special seats be submitted at the same time as the publication of nominated candidates for elective seats. The policy which is geared towards ensuring transparency and limiting the political squabbles occasioned at the nomination stage has been endorsed by the joint parliamentary committee in their report on thematic area 4.
- Embracing technology in the registration of voters: The EACLJ made submissions highlighting the need for technology in the registration of voters. We were keen to point out the efficiency of existing public portals such as itax used for filing tax returns and e-citizen which is now used for visa application, car search, business registration among others. The committee seemingly heeded to our request and has included a recommendation that the IEBC makes provision for online inspection of the Principal Register of Voters by individual voters through a public portal.
- Appointment of the president's four nominees by the Parliamentary Service Commission: As observed from the opposition's push for the disbandment and the call for dialogues to appoint new commissioners, it was clear that the political issue on appointment of members of IEBC stemmed out of the fact that the President has to nominate four people to the selection panel. It was for this reason that we urged the committee to consider subjecting the four nominees to an open, transparent and competitive process. At one point through EACLJ's presentation, Hon (amb) Mohammed Mahmoud, member for Mandera West, inquired from us which institutions would be best suited to handle the process. The committee has made a recommendation in their report suggesting that four members of the selection panel (two men and two women) be nominated by the parliamentary service commission.
- Staggered appointment of the commissioners: Regardless of the fate of the current IEBC commissioners, EACLJ observed that the terms of office need to be varied in order to create continuity and avoid a situation where the commission is left vacant. To this end, we proposed that the selection panel appoints two commissioners every three years after nominating the first team of three commissioners. The result would have commissioners' term expiring at different times to minimize the risk of infringing with elections. The stand has been espoused in the report by the joint committee which recommends that mechanisms be put in place to provide for staggered appointment of the commissioners.
- Integration of information and citizens' data from all other state agencies and institutions: EACLJ's memorandum on thematic area four put forth a recommendation that the IEBC should incorporate data from other state agencies in a push to have the voter cards substituted by the national Identification Cards. Our submissions focused on the alleged voter apathy reported by the IEBC in which we pointed out that citizens should be enabled to register as voters at the same time they are applying for national Identity cards. After deliberations on the review of the principal voter register, the commissioners settled on a number of recommendations which included one that for purposes of the conduct of the audit and in the future for the maintenance of the principal voters' register, the National Registration Bureau and all other agencies and institutions that hold information on Kenyan citizens avail the information to the Independent Electoral and Boundaries Commission electronically for cross-referencing.
- The stand on party hopping: One of the main proponents of EACLJ's recommendation to have party lists for special seats submitted at the same time as the publications of the nominated candidates was discouraging party hopping. At the presentation, Senator Beatrice Elachi was keen to inquire our stand on party hopping to which we replied with conviction that the people of Kenya should not be subjected to ambiguous measures at the expense of election leaders seeking to bypass their way to leadership position. The committee has since made a recommendation that after the names of candidates are forwarded to the IEBC, candidates cannot change their parties.
- Vacation from office by the commissioners other than by way of removal: One of the key observations of the EACLJ in response to the mandate of the joint parliamentary select committee was the fact that the constitution does not provide for any other means other than removal from office of a commissioner under article 257. This basically meant that the process for disbanding the IEBC entailed filing a petition to the national assembly laying allegations of serious violations of the constitution or any other law, gross misconduct, incapacity, incompetence and/or bankruptcy. Parliament should then consider the petition and, if satisfied that it discloses a ground, forward the same to the president who may suspend the officer and appoint a tribunal to investigate the matter. The makers of the provisions failed to predict a situation where the members could be relieved off their duty in any other way and thus the committee has included a recommendation that the Elections Act be amended to include provisions on vacation of office by the commissioners other than by way of removal.
- Inclusion of non-state actors in voter education: EACLJ made an observation of the existing systems of voter education such as K-NICE (Kenya National Integrated Civic Education) and called for the involvement of non-state actors such as the civil society in voter education. The function has been left primarily to the IEBC forming the basis on which the committee has made a resolve that it partners with other agencies and non-state actors.