My interest in labour unions was dented a major blow when I was at Kenyatta University. Not only were union officials easily threatened into submission by the university administration, but on other occasions, there was evidence that a few of the top leaders were compromised. In one particular instance, a former DVC sent out a text message on his personal number alleging that an official had been compromised.
I retell this story to indicate that the union officials of the Kenya Medical Practitioners, Pharmacists and Dentist Union are a rare calibre of leaders. They resurrected my interest in a select number of professional unions as critical players in Kenya’s processes of civic engagement. Not only has the current labour dispute been a learning moment for me and many Kenyans, their willingness to be jailed for what they believe in has demonstrated that there is much more to public service than the simple mouthing of propaganda or the unacceptable fetishisation of the law.
Right from the moment when the matters of the labour dispute between the KMPDU and government over the CBA went to the Labour and Industrial Relations Court, the frame of reference for the issue was narrowed to a contempt of court issue. Anyone who has observed the politics around labour disputes in Kenya will notice that government almost always uses the court in order to stall otherwise legitimate industrial disputes. In this case, when the Council of Governors instigated the court action, they focused narrowly on the contempt of court element.
In most of her statements in court, it also became clear that the presiding judge, Justice Hellen Wasilwa, was wedded to the narrow reference framed by the CoG. Not only did she uncritically cite the CBA as illegal, she also was unwilling to reflect upon the broad context within which the issue had been canvassed since the December 2011. Even in her choice of analogies and in the manner in which they were communicated, she seemed keen to communicate the impression that her mind was made up to teach the doctors a lesson.
It is common in Kenya for government to declare a dispute illegal in order to silence its legitimacy. It used to be that only the police cited law and order as the reference to shut up Kenyans with legitimate grievances. But this habit has scaled up and was invoked in this case by the court.
Let us be clear, law is primary to safeguarding order and ensuring peace and tranquility. The court is the ultimate arbiter in disputes and is vested with ultimate power to exert its power. In the case of the doctors, the presiding judge was well within her right to make the declarations she did and to send the doctors to jail for contempt of court.
But there is a difference between law and legitimacy and between power and authority. While the court focused on law, the doctors’ union focused on legitimacy. The distinction between law and legitimacy is brought home when we recall that both slavery and apartheid were lawful institutions; it took disrespect for the law for these illegitimate institutions to be defeated. In our case, the presiding judge applied the law to jail the officials, but the union officials invoked their conscience to accept and celebrate their jailing. When they came out two days later, the presiding judge had exercised the last of her power.
Yet, in all this, the government of Kenya has been guilty of prevarication and contempt. Not only was such contempt expressed against the court, it was also against the provisions of the constitution. It is because of this broader context that one feels the court missed the mark by invoking the narrow display of power instead of applying its broad authority to give better direction on the dispute. One can only hope the lesson is taken.
Godwin R. Murunga teaches at the University of Nairobi.