Nurses in some of our counties withdrew their labour several days ago, accusing their employers of disregarding an earlier agreement granting them certain allowances. Over a year after the agreement was signed, several counties have not implemented it. When confronted by the nurses’ union on this matter, they have pleaded all sorts of things, including lack of funds to honour the agreement, and contradictory ‘advice’ from the Salaries and Remuneration Commission (SRC).
The role of the SRC in perpetuating and exacerbating industrial unrest in the public sector has been self-evident from the day the Commission made a conscious decision to abdicate its responsibility to set the pay of State Officers and provide ‘advice’ on the remuneration of other public officers. The Commission deliberately reversed these roles, and now purports to provide ‘advice’ on the remuneration of State Officers, and to set that of other public officers, in flagrant disregard of the Constitution. In doing this, the Commission has defeated the objectives of its creation, and an urgent cost-cutting measure in any future referendum must include disbandment of this and other similarly superfluous or moribund Constitutional Commissions.
As things stand now, trade unions in the public sector have lost relevance, and unless they somehow reverse this situation, they may have to turn themselves into welfare associations whose roles will be to organize funds drives to clear hospital bills or arrange funerals and weddings for their members.
However, this is not the subject of my piece this week. In my opinion, the main problem in labour relations in Kenya lies in our understanding and acceptance of slave labour. Conventionally, a person who is compelled to work against their will, for compensation that is given at the whims of the ‘employer’, would be considered to be a slave. A slave has little say in the terms and conditions of their work, and serves at the complete pleasure of the slave-owner.
If we all agree with this definition of slavery, which is expressly outlawed in our Constitution, it baffles me that we are at peace whenever employers secure court orders compelling their striking workers to ‘return to work’. A collective of employees withdraw their labour due to some grievance that has to do with their work environment, and the Judiciary has no qualms ordering them to ‘return to work’ and continue working while the dispute is arbitrated in the courts!
What if the employees do not want to ‘return to work’? Wouldn’t they legitimately be in a catch-22 situation in which they either disobey the courts, or surrender their constitutional right not to be subjected to slave labour? We have remarked before in this column that given the constitutional protections due to workers, including that of their right to strike, courts may only lawfully declare strikes to be either protected or unprotected. Once declared unprotected, the employer would be at liberty to exercise whatever remedies they have under their own regulations and the law with regard to workers who fail to show up for work.
As things stand today, the courts have consistently been contravening the constitution by ordering unwilling workers to return to work at the instigation of employers. In that regard, therefore, Kenya is officially a slave-owning country, no matter what the Constitution says.
Lukoye Atwoli is Associate Professor of Psychiatry and Dean, Moi University School of Medicine; [email protected]