By Kenya Confidential Health Services Editor, Nairobi – March 8, 2017
There is no way a country can spend all its revenue for wages
At the height of Kenya’s doctors strike Daisy Korir, the Treasurer of the Kenya Medical Practitioners and Dentists Union (KMPDU), said the 27-page document has been so mystified that a certain Cabinet Secretary, meaning health CS Cleopas Mailu, winces whenever it is mentioned during negotiations.
She arrogantly added, “Whenever you mention the CBA on the negotiating table, some people are nearly convulsing. We need to let people know what it is,” she says.
She conveniently ignored the fact that the document was not legally enforceable after the Labour Court in October ruled that it should be negotiated afresh. Additionally both the Senate that minds the interests of County Governments and the National Assembly, concerned over national government, had declared the CBA as illegal having been signed by “an impostor” in a government that had sacked him three days before he signed it.
The KMPDU negotiating team chairman, Alex Muturi, claimed that without the illegal CBA the union might just die. “Any union stands on two things: the membership and the CBA. The CBA is the only reference any union has with the employer,” he said.
Muturi told striking colleagues that he suspected the government’s unwillingness to implement the agreement was a plan to kill their union. He made no reference to its illegality and why the union had failed to register it in court for validation. The doctors’ union boss was well aware that the CBA would not stand the litmus test of judicial scrutiny on its legality.
KMPDU was registered in 2011, after the new constitution was adopted. The new Supreme Law of the land gave every Kenyan worker the freedom to join a trade union and compelled every employer to recognise employees’ trade unions. The only exception was military and disciplined forces.
The previous constitution had barred public officers in essential services such life-saving medical profession and fire fighters from going on strike. Given the sad episode of deaths in public hospitals and homesteads due to the doctors’ strike it may be necessary to revisit the Constitutional right of those who save lives to be allowed to kill Kenyans through strikes. More so when such strikes are driven by greed for money.
The doctors first action after registration in 2011 was to organize a strike in December that lasted only a few days after doctors agreed on a return-to-work formula. On March 22, 2012, the Health ministry signed recognition agreement with the KMPDU and the two formed a team that worked out the Collective Bargaining Agreement.
Negotiations for CBA lasted more than one year, and the document was finally signed by then KMPDU secretary general Sultani Matendechero and chairman Victor Ng’ani on June 27, 2013. Sacked Permanent Secretary Mark Bor mischievously signed on behalf of the Health Ministry.
Of great importance to Kenyans unfamiliar with contents of the controversial CBA, the agreement suspended the proposed salaries and allowances until the Salaries and Remuneration Commission (SRC) sets out guidelines for remuneration of doctors in public service.
The Ministry of Health was expected to submit the document to SRC for review and then the Labour Court for registration. The union accuses the ministry officials of using “delay tactics” to frustrate implementation of the agreement for three years, totally ignoring the fact that the document was signed by a person who could not commit the Ministry or Kenya government to such agreement.
The union however, moved to the Labour Court in June 2015, seeking registration of the CBA in its current form or with amendments agreed by both parties. The union also asked the court to declare the unregistered CBA valid if the Health Ministry did not cooperate, and to backdate it to 2013.
Doctors steadfastly insisted they were not County employees, despite the fact that health services had been devolved to Counties. They argued; “The County governments are not the employers of doctors and, therefore, have no legal obligation that a collective bargaining agreement be negotiated with them.”
In response, the Health Ministry said the 2013 CBA was defective because health was devolved on February 1, 2013 (Gazette notice No 16 of 2013) and most doctors were there after employed by Counties. “The respective County governments were not involved at the negotiations and signing of the CBA,” the Ministry expounded.
The Ministry also explained the agreement was signed by a former PS illegally. Health PS Fred Segor had in a matter of fact replaced Bor, now the chairman of Kenyatta National Hospital, on June 25, 2013. Nonetheless Bor smuggled himself to Afya House to sign the CBA of June 27th. That means, Bor signed the agreement two days later, when he was already out of office.
The Ministry therefore held the position that; “The CBA had not been implemented because it was signed by a non-officer. It also had not been assessed by the SRC and Treasury and the ministry had not approved its signing,”
But Muturi counters that “if Bor acted illegally, he should be in jail”. Muturi should know that what is good for the goose is good for the gander, he too should now be in jail for willfully uttering an illegal document for implementation and visiting death upon innocent Kenyans.
In her ruling on October 6 last year, Lady Justice Monica Mbaru told doctors the 2013 CBA does not comply with the Law and cannot be registered. “Without such registration, the collective bargaining agreement has no legal effect and cannot be enforced,” she said.
Justice Mbaru asked doctors to embrace the reality of devolution and the fact that most of them are now employed by county governments. “It will aid justice, fair labour practice and effective administration of the CBA to include major stakeholders — County governments,” she expounded.
She directed the union and the Ministry to meet within a month to review the clauses they had not agreed on in the 2013 CBA. They would then get the input of all other parties and return to the court in 90 days (expiring January 6, 2017) to register a new CBA. The KMPDU decided mass action was better and spent the month of November planning the national strike that began in December.
KMPDU secretary general Ouma Oluga complains the Ministry did not constitute a negotiation team within the first month but fails to acknowledge that his union immediately after Justice Mbaru’s advice issued a strike notice and disregarded belated attempts by the Ministry to start negotiations before expiry of the 90 days.
Subsequently the Labour and Industrial Affairs Court judge Hellen Wasilwa in December declared the strike illegal and ordered doctors to return to negotiations table. The union refused to heed the court forcing the Council of Governors to sue them for contempt of Court.
Regardless the illegality of the CBA, the government subsequently offered the 5,000 doctors in public service an additional Ksh4 billion, pushing the monthly salary of an intern to Ksh197,000, up from Ksh127,000. Public Service Commission chair Prof Margaret Kobia said union proposal for interns to earn Ksh325,000 will distort the public service pay structure and burden Kenyans with additional Ksh12 billion every year. The doctors union arrogantly turned down the offer saying No CBA, No Deal.
Last month Senate Health Committee said a Collective Bargaining Agreement that doctors wanted implemented was illegal. The Committee chairman Wilfred Machage said the CBA had been overtaken by events. The doctors could not realise they were losing political support. They were convinced the so-called opposition was behind them. A matter confirmed by Raila Odinga cousin Jakoyo Midiwo when he criticized the government for inviting religious leaders to inject some sense into the doctors brains.
Instead the doctors took a diversionary turn, towards insatiable greed super highway, and argued that it was unfair to pay politicians particularly Members of County Assemblies (MCAs) more than what they (doctors) earn yet they go through many years of study before eventually being employed. Good argument that makes no political sense to the dimwits they take part in electing.
They threw in a selfish card to declare that nurses, who agreed to call off their strike, are not qualified to handle all the medical cases that end up in hospitals as in most cases, they work alongside the doctors. They maintained that the government must stop using the courts and sacking threats to intimidate them into submission but honour the (illegal) CBA.
Their journey on the selfish avenue appears to have ended in a cue de sac in Naivasha on March 7th when the Central Government head President Uhuru Kenyatta and County Governments Council chair Munya declared enough was enough. The two asked the doctors to resume duty with no offer at all and whatever had been offered had been rescinded.
The doctors union has refused to pay any attention to arguments by Finance Cabinet Secretary Henry Rotich of the catastrophic consequences of their high salary demand. National Treasury Cabinet Secretary told striking doctors they need to sign a new Collective Bargaining Agreement that takes into consideration the government’s offer and which will be implemented over a period of four years.
He warned that anything contrary will have grave implications on the economy. While reiterating that the pact signed by former Permanent Secretary Bor was Illegal, Rotich indicated that the government’s offer was reasonable as it would see the lowest earning doctor take home Ksh295,000 monthly.
He stressed that should the CBA being touted by the Kenya Medical Practitioners Union be implemented as it is, it will drive the health sector wage bill up to a whooping Ksh22 billion per year. “If that CBA was to be implemented, what it means is that the minimum salary for an intern will move to Ksh295,000. It will move the wage bill of all the health workers from the current Ksh9 billion to Ksh22 billion. It will of course create disharmony and what will happen immediately is that all the other civil servants will come on board,” he said.
He added that this would further inflate the total wage bill for all civil servants to Ksh1.7 trillion, the total revenue expected to be collected countrywide. “Just to give you the figures, that Ksh1.7 trillion is what I presented to Parliament as revenues that we will collect totally for the country. So what this means is that we will just close shop and pay salaries only with all the revenues that we will collect without doing anything else. That is the magnitude of the things we are talking about,” he cautioned.
He observed that the benchmark for any country on monies spent on wages is at 35 per cent of all its revenue and stated that anything more than that would be catastrophic. “There is no way a country can spend all its revenue for wages. The benchmark is to only spend 35 per cent. You can spend at least a third so that you leave the other two thirds for other programs of government. There are many things that the government needs to do,” he explained.
In a country struggling to uphold the Rule of Law amid a jungle of hardened free radicals who were born and brought up at a time when law did not matter, people who took pride in examination cheating, people who believe corruption is a way of life and a people who do not value human life, serious action should be considered against the KMPDU officials who deliberately used an illegal document to call a strike in which Kenyans died. The idea of escaping justice when individuals call for “Mass Action” in which Kenyans die must be brought to an end and the Rule of Law imposed to rescue Kenya from anarchy.
The KMPDU members should also familiarize themselves with Hyena’s Rule Number 1. In Life it’s ALWAYS WISE to SECURE what comes your way before FIGHTING over it – which may not always work as in their current case.
Don’t miss The Politics Behind Doctors Strike – Part 3