Labour Court Judge Hellen Wasilwa added a new layer of difficulties to the unresolved problem of striking doctors when she sentenced the leadership of the Kenya Medical Practitioners and Dentists Union to a month’s imprisonment for defying her order requiring the union to call off the strike. The considerable embarrassment that the imprisonment of the doctors has caused was reflected in the speed with which the parties to the court case agreed to their unconditional release from jail, where they spent only two nights.
The imprisonment of the doctors was reminiscent of the 1994 high-profile contempt case against G.B.M. Kariuki, a lawyer and a former Law Society of Kenya chair, and his clients Bedan Mbugua, the editor of a newspaper, The People, together with the company publishing the newspaper and David Makali, a journalist at the newspaper. The court sentenced the three to a relatively large fine of Sh500,000 each. While Kariuki and the publishing company paid their fines, Mbugua and Makali served prison sentences of four and five months, which was the default punishment. Today, that trial is regarded as a travesty of justice and a clear example of a practice that was widespread at the time, of the political establishment using the judiciary to silence dissidents. Kariuki went on to become a Judge of the High Court and today is a member of the Court of Appeal.
A 1996 report by the International Bar Association concluded that cases like the one against Kariuki “demonstrate[d] a persistent and deliberate misuse of the legal system for the purpose of harassing opponents and critics of the government” and, more recently, the Vetting Board for Judges and Magistrates regarded these cases as evidence of political partiality.
In the wake of the jailing of the doctors, it has been pointed out that the Judiciary has, on several previous occasions, found senior officials guilty of contempt but, unlike the doctors, none of them has so far been sent to jail.
The jailing of the doctors in circumstances where senior officials before them have been spared, leaves the Judiciary with the burden of having to prove that the law of contempt is not a political tool to be used only against the weak.
The doctors’ strike represents the pains of making the transition from the old to the new Constitution. In this regard, the strike reflects the unresolved contestation about the place of healthcare arrangements under the new Constitution. While the Constitution devolved healthcare and made it the responsibility of county governments, the perception is that the national government has been reluctant to let go, and has been tolerating disorder in the sector in the hope that this will defeat, or at least delay, the handing over of the responsibility to county governments.
Another aspect of the transitional pain is the evident misalignment of political leadership over healthcare matters. While healthcare has been devolved, there is no central authority that represents the interests of county governments in the engagements that are needed to streamline relationships. Thus, the sole counterpart to the doctors’ union in the negotiations that led to the contested collective bargain agreement was the Ministry of Health, even though this function had already been devolved.
Although the Council of Governors has now stepped in to represent the interests of county governments, its legitimacy to play this role is contestable. Given the context of bad faith that characterises relationships all round, it has been easy for county governments to trash the CBA that the doctors signed simply because they were not involved in its negotiation. For the same reason, the national government has also repudiated its own signature, claiming that it was not the proper authority to negotiate the agreement. Within the government, the misalignment of responsibilities has created a situation where engaging with the doctors is nobody’s business. The doctors have had their own dithering as well. They have stalled on the implementation of the devolved arrangements because they are reluctant to become employees of county governments. They have given a number of reasons for their reluctance, including the fact that in a number of counties, the infrastructure under which they would be expected to work is uncertain and is not commensurate with their skills. Doctors also fear the parochialism that is inherent in accepting to work under county governments, including the lowering of their career ceiling and the loss of opportunity to transfer to other parts of the country, thus making theirs dead-end jobs. Also doctors complain that some counties are hostile to employees they regard as “outsiders” and that some of these counties are hardship areas.
The doctors have demanded that rather than make them employees of the individual county governments, there should be established a health service commission that would become the common employer for all doctors. If established, such a commission would also become the focal point in the management of healthcare issues and would, therefore, be the counterpart of the Ministry of Health.
The attractiveness of this proposal is that it would still be possible for doctors to work in any part of the country since they would all have a national-level employer. For a health commission to be viewed as representative of the interests of county governments, it would have to be led by county governments themselves. The downside is how different this arrangement would be from the old situation where the management of healthcare was centralised.
The doctors have been arguing that all the parties concerned should have used the transitional period to develop a plan for rolling out the devolution of medical services, rather than the approach that has been employed of expecting that devolution would happen merely because the law decrees so. The difficulty has been that, within the government, nobody took the doctors seriously. In this regard, their imprisonment last week was not without a silver lining. The bravery they showed has won the doctors some respect and will push back on the bureaucratic indifference that has characterised the government’s engagement with them.