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Kenya needs a new approach to labour disputes

Monday May 21 2018

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Labour disputes across the world are disruptive, yet Kenya is fast becoming the poster boy for industrial gridlocks.

Since the enactment of the 2010 Constitution, the number of labour disputes has significantly increased.

Chapter four, the Bill of Rights, under section 43 sub-section 2, parts (c) and (d) read, “Every worker has a right … to form, join or participate in the activities and programmes of a trade union, and; to go on strike.”

The Constitution fails to articulate the rights of other people who may suffer as a result of such industrial action.

In the recent past, we have seen doctors on prolonged strikes during which many people lost their lives.

University academics have been on strike for most of 2017 and much of 2018, forcing students to abandon their studies.

The focus of this column is to delve further into Kenya’s labour movement and to seek a balance between individual rights and the wider subject of basic human rights leveraging on the experiences from other countries.


I will also seek to establish if there are other means of improving workers’ terms while at the same time offering essential services to those who need it most.

First, let me explore how wages are determined in any organisation that values its human resources.

As with any commodity in a free-market economy, wages are determined by supply and demand for labour.

This means, therefore, that wages will adjust according to the supply of labour in relation to the demand for their services.

The point at which supply meets demand is the equilibrium. However, when wages are above the point of equilibrium, more labour will be inclined to seek job opportunities than the industry can profitably hire.

Similarly, when the wages fall below the equilibrium, organisations will find it profitable to hire more labour.

But at some point, they will need to offer a higher wage to obtain additional workers.

Therefore, fewer doctors, for example, will mean that the wages would be higher and vice versa.


However, there is a fundamental error in making the generalisation that there are fewer doctors in Kenya than the demand for their services.
The supply of these services in Nairobi is often higher than in rural areas. A recent World Health Organization (WHO) report shows that the national average doctor-to-patient ratio stands at 1.5 doctors to 10,000.

While the ratio in Nairobi is 9.5:10,000, most counties have 1:10,000.

If the theory of demand and supply worked, as it should, rural wages should be higher in order to attract more doctors.

The government used to have different pay structures, with those working in remote rural areas being paid what was referred to as “hardship allowance”.

In essence, this was a premium to attract staff into working in places other than urban areas.

From the economic point of view, therefore, there is nothing like equal pay for equal work. Employers in the public and private sectors never obey the rules of economics.

Employees, too, unionised or not, have no basis for negotiation other than simply asking for more money.

Either they have no confidence in their worth or they simply have no idea of their potential options.


I suspect that this failure results from other benefits, like using public resources for the purpose of gaining the necessary experience.

The unions at the professional levels too have borrowed from past workers’ movements that employed unorthodox methods of public display.
Union leadership always never consults their membership on what strategies to adopt that can lead to the best outcome for workers.

In the end, their antics become a wasteful exercise that by far undermines the human rights of others.

Kenya’s experience so far mirrors the United Kingdom’s in the early 1970s, when the country was at war with trade unions, causing stoppage of many essential services through industrial actions.

Prime Minister Margaret Thatcher fought the unions and changed the UK forever.

Through legislation, she made it difficult for workers to go on strike but more importantly, her economic policies pulled many union members out of unionism and dealt a major blow to the source of unions’ strength.

Tony Blair, the leader of the Labour Party that was born out of the labour movement of the nineteenth century, could not reverse the gains from Thatcher’s actions when he became prime minister.


In the United States, the Reagan administration in 1981 decertified the Professional Air Traffic Controllers Organization (PATCO), a trade union, following a protracted industrial action that paralysed essential air services in the country.

How these two countries dealt with their unions should serve as examples to our fledgling union movements that are enjoying unencumbered constitutional rights lest we follow the same path.

Several other countries have ways of balancing essential services and the rights of workers.

Many countries in the Southern African Development Community (SADC) region have limitations on the right to strike for public sector employees.

Indeed, as Rochelle le Roux and Tamara Cohen established in their 2016 paper Understanding the limitations to the right to strike in essential and public services in the SADC region, “industrial action by essential services and public service employees is criminalised - with serious consequences for striking employees.”


There must be a difference in approach between university lecturers and that of non-professional unionists with limited options in their careers.

In my view, doctors and lecturers should negotiate to be delinked from the exchequer-funded payroll and move on to wealth creation where their services can attract higher incomes than the pittance they receive with inflated hopes of miniscule increments that have compromised learning in all higher-learning institutions.

In essence, I am advocating for a review of the current systems to enable highly skilled workers to generate wealth while providing for inclusive services to the citizen.

This strategy of always seeking tiny increments is not helpful to institutions or the many employees.

Like many great universities worldwide, Kenyan universities need greater autonomy, a transparent and competitive process of selecting university leadership and a performance-based pay system.

Everyone I know wants the best out of our doctors and lecturers, but the current permanent and pensionable systems are a communist agenda that undermine quality of service, breed mediocrity and have greatly contributed to the current rot in public institutions.


Our systems have failed so much that we cannot attempt reforms without radically changing our mind-set.

My prayer is that the government will simply agree to change the Universities Act to allow institutions of higher learning to build their own sustainability models, build endowment funds, and create collaboration with industry to conduct research and commercialise research.

Many of the public universities have expansive junks of land lying idle. Yet Africa languishes under food insecurity.

Here is a chance to break through the curse of abundance (land, labour and even capital) to leverage it to build a new Africa.

The primary objective of trade unions is to improve terms of service for its members.

It doesn’t always have to be confrontational. Rather, tripartite agreements should not just focus on wages only when there are more sustainable strategies.

There must be room to explore other opportunities, like taking control of workers’ destiny by seeking autonomy to play a greater role in the sources of incomes.

The writer is an associate professor at the University of Nairobi’s School of Business. Twitter: @bantigito