At the time of writing this, the doctors’ strike was ongoing and, despite much progress made in talks, the national and county governments had declared a deadlock and initiated drastic action against the doctors. At the same time, the lecturers’ strike had been going on for close to two months, and there was no end in sight. Other public servants had issued strike threats on and off, with some negotiating agreements that the employer later reneged on.
From the end of last year, the public sector has been hit by a spate of strikes that some observers have linked to the forthcoming elections. The thinking in certain quarters is that workers feel that the campaign period is the ideal time to negotiate with the government presumably because the politicians are keen on re-election and do not want to jeopardise that by appearing to be insensitive to them.
Unfortunately, this is not the case here. For one reason or another, this government has been unable to expeditiously deal with the industrial action in various sections of the public sector. It appears that a silent policy of ignoring strike notices has been instituted, followed by rushing to court to declare strikes “illegal,” even though the law only designates strikes as either protected or unprotected.
The animal called “illegal strike” does not exist, since the constitution guarantees the right of workers to withdraw their labour if they have a grievance with their employer. The Labour Relations Act only operationalises that right and cannot abrogate it. The Act provides that strikes called outside of the legal provisions will be considered unprotected, rather than illegal. Once this declaration has been made, preferably by the Employment and Labour Relations Court, the employees would then be on their own.
The government has, however, preferred the route of declaring strikes illegal in order to treat the striking workers and their unions as criminals. Cases of contempt of court are rife in this strike season because some courts have over-reached themselves and unconstitutionally ordered workers to return to work despite the continuation of the industrial dispute. These actions amount to attempting to legitimise slavery in a country where this is expressly outlawed by the constitution. Ideally, industrial disputes are civil matters that should be sorted out between the employer and employee. In the worst case, the two parties should part ways if the differences are irreconcilable. The role of the courts should end at the declaration that a strike is unprotected, opening the way for the employer to deal with the employee accordingly. As an employer, government does not require coercive force to get its employees to work. In theory, the government must do everything in a civil manner to ensure that essential services to citizens are not disrupted needlessly.
The fact that numerous industrial disputes in the public sector remain unresolved or are resolved unsatisfactorily points towards a failure of leadership somewhere in government. One might begin to ask what role the ministry of Labour is playing in promoting industrial peace and harmony in the public sector. One might even ask the Attorney- General what kind of legal advice he is giving the parties involved in these disputes as to the best way to resolve them.
Some of the legal advice we have seen dispensed runs completely counter to the letter and spirit of the constitution and other legislation.
Perhaps we should also interrogate the pedigree of the individuals honoured to serve in the Cabinet, and what efforts they have made to try and resolve these disputes. Finally, the buck stops at the House on the Hill.
Do Kenyans think that the Presidency is doing everything necessary to return the public sector functioning to normal?
Whatever informed the government’s unspoken policy to destroy collective bargaining and frustrate workers using extra-legal means is a malevolent spirit that risks destroying the public service in this country.
The government must re-examine its handling of industrial relations.
Lukoye Atwoli is associate professor of psychiatry and dean, School of Medicine, Moi University.