The Genesis of the Doctors' Strike

Written by EACLJ Staff on 01 March 2017.

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.

Devolution

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.